ICC judges approve request to reopen war crimes probe in Afghanistan

International Criminal Court (ICC) judges on Monday authorized the Prosecution to resume investigations into war crimes and possible crimes against humanity in Afghanistan.

This comes after the probe was put on hold more than two years ago.

According to the ICC order, published Monday on its website, the investigation will resume as the judges “considered that Afghanistan is not presently carrying out genuine investigations”.

In early 2020, following a years-long preliminary inquiry, ICC judges authorized the ICC Office of the Prosecutor to begin an investigation.

However, the investigation was paused one month later when the former Afghan government requested to defer to their own investigations.

According to Monday’s ruling, the judges said the investigation could now move forward as Kabul “is not presently carrying out genuine investigations” into the alleged crimes under the ICC’s jurisdiction.

The judges “considered that the material transmitted by Afghanistan does not show that Afghanistan has investigated, or was investigating, in a manner that covers the full scope of the Prosecutor’s intended investigations and that would justify even a partial deferral of the Court’s investigations,” read the order.

The judges emphasized that “the present authorization relates to all alleged crimes falling within the situation and the conflict, as it existed at the time of the Appeals Chamber decision authorizing, on 5 March 2020, the investigation and based on the Prosecutor’s request to open it.”

Recently, Human Rights Watch stated that the delay in the investigation has prolonged the wait of Afghans seeking some measure of justice for grave international crimes.

On August 26 this year, the current prosecutor, Karim Khan, filed his office’s latest submission in favor of launching an investigation, arguing that the Taliban, who took control in August last year, “are not continuing, cannot continue and will not continue” relevant national justice efforts.

‘Deprioritizing’ alleged crimes

This comes after Khan requested permission from the court’s judges in September last year to resume the investigation.

At the time, he indicated that any investigation would focus on alleged crimes by the Taliban and the Islamic State of Khorasan Province (Daesh) while he “deprioritized” alleged crimes by the former Afghan security forces and US personnel.

Defending his decision to “deprioritize” the investigation into US forces and former Afghan security personnel, Khan said at a meeting of ICC countries in The Hague earlier this year that he made “a decision, based upon the evidence, that the worst crimes in terms of gravity and scale and extent seem to be committed by the so-called Islamic State [in] Khorasan and also the Taliban.”

Meanwhile, just last month, Human Rights Watch called for the resumption of the investigation and stated that serious abuses – some of which may amount to crimes within the ICC’s jurisdiction – continue in Afghanistan and that the organization has documented extrajudicial killings, torture, enforced disappearances, and sweeping violations of the rights of women and girls by the Taliban.

“The ISKP has also escalated attacks against the Hazara and Shia communities,” Human Rights Watch stated.