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International Criminal Court Should Reach Decision on Afghanistan

Ruling Could Allow Investigation of Taliban Abuses

The International Criminal Court (ICC) is seen in The Hague, Netherlands, November 7, 2019.  © 2019 AP Photo/Peter Dejong, File

Delay in a critical International Criminal Court (ICC) ruling has protracted the wait of Afghans seeking some measure of justice for grave international crimes.

In the 16 years since the court’s prosecutor first began considering potential cases in Afghanistan, the conflict in Afghanistan has been marked by a laundry list of war crimes and possible crimes against humanity. On August 26, the current prosecutor, Karim Khan, filed his office’s latest submission in favor of launching an investigation, arguing that the Taliban, who now control the country, “are not continuing, cannot continue and will not continue” relevant national justice efforts.

It is crucial for justice in Afghanistan for the court’s judges to rule.

In March 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. As the ICC is a court of last resort, the ICC prosecutor can only override a deferral request of this kind by petitioning the judges.

Citing the Taliban’s takeover of Afghanistan, Khan in September 2021 requested permission from the court’s judges to resume an investigation. In announcing the decision, he indicated that any investigation would focus on alleged crimes by the Taliban and the Islamic State of Khorasan Province (ISKP), an ISIS-affiliated armed group, while deprioritizing alleged crimes by the Afghan security forces and US personnel. Nearly a year later, and after a limited process to consider the views of victims, the judges have yet to address the merits of whether an investigation should go forward. They considered it critical to determine Afghanistan’s representative and to take steps to give those authorities an opportunity to be heard.

The prosecutor’s latest filing responded to the judges’ request for an assessment of materials provided by the former Afghan government, as well as an updated assessment as to the prospect of credible national proceedings.  

In the meantime, serious abuses – some of which may amount to crimes within the ICC’s jurisdiction – continue in Afghanistan. In recent months, Human Rights Watch 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.

The Afghan people have waited far too long for justice.

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