ICC Judges Authorize Prosecution To Resume Investigation In Afghanistan

On October 31, 2022, the Pre-Trial Chamber II of the International Criminal Court (the ICC) issued this decision authorizing the Prosecution to resume its investigation into the situation in the Islamic Republic of Afghanistan.

The decision came after in September 2021, the Prosecution requested authorization to resume its investigation (which was deferred following a request from the Government of Afghanistan in March 2020). According to the press release issued in September 2021, the Prosecution “decided to focus [the] investigations in Afghanistan on crimes allegedly committed by the Taliban and the Islamic State – Khorasan Province (IS-K) and to deprioritize other aspects of this investigation.”

The judges at the Pre-Trial Chamber II considered that Afghanistan is not presently carrying out genuine investigations and that it has not acted in a manner that shows an interest in pursuing the deferral from March 2020. As they stated, “the limited number of cases and individuals prosecuted by Afghanistan, as shown by the materials submitted and assessable by the Chamber, cannot lead to a finding that the ICC investigation must be deferred. The Chamber therefore grants the Prosecution’s Application and authorizes the resumption of the investigation in the Afghanistan Situation.”

The Pre-Trial Chamber II further added that this 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 March 5, 2020, namely, the crimes alleged to have been committed on the territory of Afghanistan since May 1, 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation in Afghanistan and were committed on the territory of other States Parties to the Rome Statute since July 1, 2002.

In formulating its decision, the Pre-Trial Chamber II considered victims’ views and concerns. Among others, the Pre-Trial Chamber II noted that the individuals making representations “expressed themselves to be in favor of the resumption of the investigation, because of several factors including the following: (i) the need to ensure a genuine and timely investigation, which could only be achieved by an impartial international court; (ii) the desire to contribute to ending impunity and preventing future crimes; or (iii) the belief that an investigation by the Court would lead to raise awareness about the victims’ situation and allow for victims’ voices to be heard.”

Victims further raised several issues in Afghanistan, including the weakness of the police and judicial institutions in Afghanistan, the lack of genuine access to justice and of any prospect for ensuring accountability. They further reported a fear of retaliation. This is a particular issue especially following August 2021, and now that many human rights defenders and international actors who had supported the victims have left Afghanistan. Some victims further raised their concerns about the proposed narrowing of the focus (to crimes perpetrated by the Taliban and IS-K only), stating that “this focus may result in the Prosecution overlooking crimes allegedly committed by others, including members of armed forces or security and intelligence services of non-States parties, or the targeting of certain groups of people.”

With the Taliban in power, the chances of ensuring justice and accountability by domestic courts in Afghanistan are zero, the involvement of the International Criminal Court is currently the only hope for victims to see some justice being done. However, other legal options must be considered as well, to ensure that no victim is denied justice for the litany of atrocities perpetrated. As the international community continues to struggle with responding to the crisis in Afghanistan, the issue of justice and accountability requires a renewed international focus.