Resumption of the ICC investigation into Afghanistan, while welcome, should not exclude groups of victims or crimes within the Court’s jurisdiction

Yesterday, the ICC Prosecutor announced that he had requested to resume the investigation into international crimes in the Afghanistan situation, and that he would be focusing on investigations into crimes against humanity and war crimes allegedly committed by the Taliban and the Islamic State. While FIDH, Armanshahr / OPEN ASIA and CCR welcome the Prosecutor’s intention to resume the ICC’s Afghanistan investigation, we are deeply concerned by the apparent exclusion, without prior information and consultation of victims, of other actors involved in international crimes committed in the context of the Afghan armed conflict since May 2003.

On 27 September 2021, ICC Prosecutor Karim Khan filed a submission to the ICC Pre-Trial Chamber asking for authorisation to resume the investigation into Afghanistan, [1] which had been paused following the March 2020 request by Afghan authorities to defer the investigation on the basis that genuine investigations and prosecutions were allegedly being undertaken domestically. However, in his accompanying statement, the ICC Prosecutor announced that, due to the apparent resource constraints faced by his Office, he would focus his investigation on crimes allegedly committed by the Taliban and the Islamic State, and "deprioritize" crimes committed by other actors, namely Afghan national forces and US armed forces and CIA personnel in secret detention facilities in Afghanistan and on the territory of other States Parties, including Poland, Romania and Lithuania.

“It is crucial that Afghan civilians, who have been victims of the horrendous crimes committed by the Taliban and other affiliated groups and have lived under the reign of impunity, finally see those responsible be held accountable, especially in the current context. However, for the process to be legitimate in the eyes of the Afghan population and justice stakeholders, an ICC investigation should look into crimes committed by all actors who have been involved in the past 20 years of conflict. This is key for any meaningful justice process and to protect the mandate of the ICC.”

Guissou Jahangiri, FIDH Vice-President and Executive Director of Armanshahr / OPEN ASIA

Our organisations underline that States must cooperate with the Court, not only in the context of any investigation, but by providing the Court with the resources it needs to bring accountability to all victims.

“While we understand that the Office of the Prosecutor is under-resourced, and must establish priorities within its investigation, we are concerned about “deprioritising” groups of victims and those who suffered crimes committed by parties outside of the new investigative focus. We ask the Prosecutor to continue receiving and preserving information regarding all crimes, to ensure that accountability in the investigation already opened is pursued without further delay, and to keep all victims informed of developments in the investigation, in accordance with their rights under the Rome Statute.”

Raquel Vazquez Llorente, FIDH permanent representative to the ICC

Yesterday’s submission by the Office of the Prosecutor’s and related press release were publicised without prior communication with or outreach to victims and their legal representatives. FIDH and Armanshahr / OPEN ASIA already highlighted the need for improvements in the implementation of the right of victims to information and effective outreach within the framework of the Afghanistan situation, and at every stage of ICC proceedings. In May 2021, both organisations filed a submission on the matter through a request to intervene as amicus curiae in the situation.

"The men I represent, who continue to be held without charge at Guantanamo after being tortured in proxy detention, secret "black sites" and US-run detention centers, turned to the ICC as a court of last resort because national courts failed to provide them any measure of justice and accountability.”

Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights and legal representative for victims

"Despite a campaign of intimidation and political pressure across successive U.S. administrations, both the former Prosecutor and the Appeals Chamber recognized that the torture and arbitrary detention they have endured falls within the jurisdiction of the ICC and that it is appropriate for this global court to investigate the global torture program. We call upon the new Prosecutor to meet with victims and their representatives and review the case file," she added.

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