Resumption of the investigation was authorised by Pre-Trial Chamber II on 31 October 2022 following a request by the Prosecutor, Karim Khan, on 27 September 2021. Previously, on 5 March 2020, the Appeals Chamber granted the Prosecutor’s request to authorise an investigation into crimes committed by the Taliban, by Afghan national forces, and by United States (US) military and Central Intelligence Agency (CIA) officials arising out of the US torture programme. In April 2020, pre-Taliban Afghan authorities had requested a deferral of the ICC’s investigation in favour of purported investigations being carried out domestically.
With dramatically changed circumstances in Afghanistan following the Taliban takeover in August 2021, and considering the very limited investigations that the authorities were conducting, which notably omitted any investigation of crimes by US citizens or other international forces, the judges of Pre-Trial Chamber II considered that no genuine investigation into the alleged crimes was being carried out, and that the Taliban had shown no interest in pursuing the deferral request. The long-awaited decision to resume the ICC investigation gives the Prosecutor the green light to investigate all crimes, committed by all parties, as contained in the Prosecutor’s original request.
In spite of huge challenges ahead, all parties in the war must answer to justice
"Victims, especially women and girls and ethnic and religious groups, have been waiting for justice for decades and have no other prospects for accountability as fear and impunity reign. Huge challenges are ahead as victims’ groups and the human rights community, including OPEN ASIA | Armanshahr, are unable to carry out their work on the ground and evidence of war crimes and crimes against humanity are lost,” said OPEN ASIA | Armanshahr Executive Director and FIDH Vice-President Guissou Jahangiri.
Our organisations note the ICC judges’ reference to the representations submitted by victims, from which “confusion and disappointment” transpired in relation to prosecutorial practice of informing victims of investigative activities and strategies through public statements. In October and December 2021, the Center for Constitutional Rights (CCR) had made submissions on behalf of two victims of the US torture programme who remain detained without charge at Guantanamo, in which the men urged that the investigation be resumed without delay in light of no ongoing investigation in either Afghanistan or the US, and urged the ICC Prosecutor to “prioritise” all dimensions of the investigation considering the gravity of the crimes and the entrenched impunity for these crimes. ICC judges urged “the Prosecution to undertake a thorough and critical assessment of its communication strategy vis-à-vis victims, to ensure a respectful and sensitive dialogue with them.” The judges also reminded the Prosecutor that their decision applied to the resumption of the investigation into all alleged crimes falling within the situation and the conflict that the Appeals Chamber had authorised in March 2020, i.e., crimes by the Taliban, Afghan national forces, and arising out of the US torture programme whether in Afghanistan or on the territory of other ICC State Parties, including Romania, Lithuania, and Poland.
"We fully support the judges’ request to the Prosecutor to pursue the investigation ‘in its entirety,’ and urge the Prosecutor to move quickly in the investigation to deter ongoing and future crimes and to address entrenched impunity, sending the important message that no one is above the law"
Our organisations also reiterate our calls for meaningful communication between the Office of the Prosecutor (OTP) and victims and civil society with regard to the investigation, and stress the importance of meaningful victim participation throughout all stages of ICC proceedings.
"All victims in the Afghanistan decision have suffered the old adage, ‘justice delayed is justice denied.’ The Prosecutor now has the authority to deliver a measure of justice to victims of the Taliban, the Afghan forces, and the US torture programme", said Center for Constitutional Rights (CCR) Senior Staff Attorney and legal representative for victims Katherine Gallagher.
A failure to investigate US actors at this court of last resort would send a dangerous message to officials from powerful States – and their victims - that some are indeed above the law. That must not happen"
A history of seeking accountability in Afghanistan
In 2007, the OTP announced the preliminary examination of the situation in Afghanistan. On 20 November 2017, the Prosecutor sought authorisation from Pre-Trial Chamber II to investigate alleged crimes against humanity and war crimes committed in Afghanistan since 1 May 2003 by Afghan government forces and authorities, as well as the Taliban and affiliated groups. The Prosecutor also requested to investigate war crimes allegedly committed by US armed forces on the territory of Afghanistan and by the CIA members in secret detention facilities in Afghanistan and on the territory of other States Parties - namely Poland, Romania and Lithuania - since 1 July 2002 and principally in the period of 2003-2004.
On 12 April 2019, the Pre-Trial Chamber decided against the opening of an investigation into the situation in Afghanistan, finding that an investigation would not serve the “interests of justice”. In response, on 11 July 2019, FIDH and two members from Afghanistan filed an amicus curiae submission favouring judicial review of this rejection, while CCR, as legal representative for victims of the US torture programme, lodged an appeal against the decision.
On 15 November 2019, FIDH, along with eight other civil society organisations, filed a further amicus curiae submission on the participation of victims. CCR argued on behalf of victims at a three-day hearing in December 2019 that the investigation was in the interests of justice and should be authorised without further delay. On 5 March 2020, the Appeals Chamber authorised the Prosecutor to commence an investigation. However, on 26 March 2020, Afghan authorities submitted a deferral request. On 27 September 2021, the Prosecutor announced that he had requested to resume the investigation into international crimes in Afghanistan, however with the intention to focus the investigation on international crimes committed by the Taliban, while deprioritising crimes committed by Afghan forces and US nationals.