The ICC’s Flawed Afghan Investigation

Just a few months into his term as chief prosecutor of the International Criminal Court (ICC), Karim Khan has already failed an important test. Khan announced in late September that although his office will resume an investigation into suspected war crimes and crimes against humanity in Afghanistan since 2003, it will prioritize alleged abuses by the Taliban and the Islamic State Khorasan (ISIS-K) and deprioritize “other aspects of this investigation,” namely, alleged crimes by the Afghan National Security Forces, the U.S. military, and the Central Intelligence Agency.

For the U.S. government, this is no doubt a welcome development, at least in the short term. Fatou Bensouda, Khan’s predecessor, faced enormous pressure from Washington to not pursue an investigation. Despite this, the ICC ruled in March 2020 that an investigation could proceed and that it would encompass suspected U.S. atrocities. The decision drew praise from human rights groups and anger from the United States. The Trump administration went so far as to order diplomatic and economic sanctions on ICC officials, including Bensouda, in an effort to intimidate them. Shortly after ICC judges ruled to move ahead, the Afghan government, led by then-President Ashraf Ghani, requested the ICC investigation be deferred, saying the existence of domestic investigations meant there was no need for an international court to step in. Now, with the Taliban in control in Kabul, that is no longer the case, prompting Khan to relaunch the investigation but this time with a self-imposed, narrower mandate.

In circumscribing his own inquiry, Khan is letting the United States off the hook and leaving the Afghan victims of these crimes without any avenue for justice or accountability. It is not only a bad way for Khan to begin his tenure as chief prosecutor; it also contributes to the perception that the ICC’s pursuit of justice is imbalanced. The United States may applaud this move now, but it is not in the country’s interest for the ICC to lose legitimacy as an international institution.

Khan’s decision has implications far beyond the United States and Afghanistan, and it will be noticed by other countries facing potential investigations. Indeed, the stakes for the court and its legitimacy could not be higher. The ICC has for years been accused of being a neocolonial institution, with its investigations centered on countries in the Global South. In particular, all of the court’s early investigations (and most of its current ones) have been into African countries and, so far, all the indictees have been Africans. Refusing to investigate a powerful country in the Global North such as the United States could add fuel to this fire. Khan will need to prove the ICC has the fortitude to pursue difficult investigations against powerful countries. Otherwise, the ICC will be viewed broadly as a biased and illegitimate institution—the exact opposite of what a court should be.

While still a candidate for chief prosecutor, Khan communicated a vision for the ICC’s unfolding legacy, stating, “The Court’s work can and should leave a legacy behind that may instill confidence in international institutions.” But how can communities affected by serious crimes remain confident in the ICC when it neglects to investigate certain parties?

Deprioritizing the U.S. part of the Afghanistan investigation calls into question Khan’s commitment to serving all victims equitably—or at least his commitment to trying. Information gathered during the ICC’s preliminary examination in Afghanistan, from 2006 to 2017, indicated among other things that U.S. personnel used “torture, cruel treatment, outrages upon personal dignity, and rape” in interrogations. These alleged acts constitute war crimes under international law—and it is a mistake to not investigate them further. An important consideration in pursuing an investigation is, as Human Rights Watch reports, the victims’ need “to have their suffering publicly recognized; to know which perpetrators are responsible for which crimes; to hear the perpetrators’ explanations as to why the crimes were committed; and to see perpetrators punished.” As it stands, most victims of U.S. crimes in Afghanistan are unlikely to ever receive recognition let alone redress.

Withdrawing time, attention, and effort from the U.S. side of the investigation is not only bad for victims. It also sets a worrying precedent for the ICC, which has a mission to “help put an end to impunity for the perpetrators of the most serious crimes . . . and thus to contribute to the prevention of such crimes.” Stopping investigations for reasons unrelated to the merits is clearly inconsistent with such aims.

Washington has had a complicated relationship with the ICC since its inception. The United States participated in the negotiations that led to the court’s creation but was one of seven countries that voted against the Rome Statute, which established the ICC in 1998. Although President Bill Clinton eventually signed the treaty in 2000, it was never sent to the U.S. Senate for ratification. And in 2002, President George W. Bush “unsigned” the ICC treaty and told the United Nations Secretary-General that the United States had no intention of ever joining the court. At the same time, the United States was launching military operations across the Middle East in the name of fighting terrorism.

Despite not being a member of the ICC, the United States can still fall under its jurisdiction if certain conditions are met. The Rome Statute empowers the court to investigate and, when appropriate, prosecute war crimes, crimes against humanity, genocide, and the crime of aggression when a member state proves “unwilling or unable” to do so on its own. The Rome Statute also gives the ICC jurisdiction over nonmember states who are unwilling or unable to investigate and prosecute their nationals for suspected abuses on the territory of a member state. Since Afghanistan has been an ICC member since 2003, alleged U.S. crimes in the country fall within the court’s purview. Had any U.S. administration undertaken genuine, robust investigations into the conduct of U.S. military and intelligence personnel in Afghanistan, the ICC would not have had jurisdiction over U.S. nationals, since the U.S. government would have proved both “willing and able.” But each administration failed to do so.

In 2006, the ICC opened a “preliminary examination” of allegations of war crimes and crimes against humanity related to the war in Afghanistan since 2003. Luis Moreno Ocampo, the court’s chief prosecutor at the time, wanted to probe suspected abuses by both pro-government and antigovernment forces—the first time in history that an international criminal court had asserted jurisdiction over U.S. service members.

Khan will need to prove the ICC has the fortitude to pursue difficult investigations against powerful countries.

As the ICC forged ahead with its investigation, the United States resisted every step of the way. Bush was so intent on U.S. personnel never being subject to the ICC that his administration for a time conditioned foreign aid on recipient countries not turning over U.S. nationals to the court. Many of these “bilateral immunity agreements” were ultimately reversed, and the administration later tacitly supported a UN Security Council resolution to refer the genocide in Darfur, Sudan, to the ICC for investigation. But Bush consistently rebuffed claims of ICC authority over the United States.

Barack Obama’s administration supported the ICC diplomatically and financially when it served U.S. interests. For example, the administration supported a UN resolution to refer Libya to the ICC for investigation after the fall of the dictator Muammar al-Qaddafi in 2011 and helped with the arrest and transfer of ICC fugitives such as Congolese armed militia leader Bosco Ntaganda. But like Bush, President Obama considered ICC membership (and, thereby, ICC jurisdiction over U.S. personnel) to be out of the question. With respect to Afghanistan, Obama conceded that “we tortured some folks,” but he believed the country needed “to look forward as opposed to looking backward.” He praised U.S. service members for “working very hard to keep Americans safe” and argued that they shouldn’t have to spend “all their time looking over their shoulders.”

President Donald Trump, by contrast, ended cooperation with the ICC even in cases that might advance the interests of the United States and its allies, such as the court’s ongoing investigations in Libya and Sudan. President Joe Biden reversed Trump’s sanctions against Bensouda and other ICC officials a few months after he came into office and indicated a renewed U.S. interest in cooperating with the ICC—but only with its probes into other countries. Biden remains resolute in rejecting ICC jurisdiction over U.S. troops and intelligence agents.

Khan’s reversal on the Afghanistan investigation is especially dispiriting for international justice advocates because it gives the United States what it has always wanted: no serious accountability. But he is not the first prosecutor to make a decision like this. Bensouda, for example, elected to not investigate and prosecute suspected war crimes by members of the British military in Iraq. And there are other ongoing ICC probes at risk of reflecting a similar pattern of accountability—that is, justice for the weak and impunity for the strong.

In the Palestinian territories, for instance, both Israeli and Palestinian forces are accused of illegal conduct. For Israeli forces, this includes illegal settlements, and for Palestinian forces and Hamas, it concerns the use of illegal rockets. Although Palestine is an ICC member, Israel is not. Accordingly, Israel has rejected the court’s claims of jurisdiction. The United States is likewise opposed to the investigation. The U.S. opposition is at once altruistic and self-interested—altruistic because Israel is a long-standing U.S. ally in the region and self-interested because the United States does not want to set a precedent for the ICC having jurisdiction over nonmember states.

There is a second, similar probe in Georgia, where the court is investigating alleged war crimes and crimes against humanity related to the 2008 war, which involved Georgian and Russian forces, as well as forces from the contested region of South Ossetia, which Russia now occupies. Like the United States and Israel, Russia rejects ICC jurisdiction. Russia, which had signed the Rome Statute, terminated the ratification process shortly after the Georgian investigation was authorized in 2016—and after the court denounced the annexation of Crimea from Ukraine. There has not been meaningful progress in the Georgian investigation, certainly not with respect to Russia. The ICC prosecutor’s office has not named any individual suspects, nor has it issued any arrest warrants or summonses to appear. The probe into Crimea is similarly stalled. Bensouda concluded her preliminary examination there at the end of 2020, but she did not take the next step: requesting authorization from the court’s judges to open a full investigation.

The Afghanistan investigation offered the ICC a chance to begin its third decade by asserting—legally, reasonably, and powerfully—its jurisdiction over a global superpower.

If the ICC continues this trend of backing down from tough investigations into the conduct of powerful countries, it risks “espous[ing] universality in theory but in practice exonerat[ing] the West while disciplining and condemning the rest,” as Oumar Ba recently put it in Foreign Affairs. If this risk materializes, the ICC may lose members. Burundi and the Philippines have already withdrawn from the court, citing its biases as an excuse. Others may follow their lead or simply ignore and refuse to cooperate with the ICC.

The Afghanistan investigation offered the ICC a chance to begin its third decade by asserting—legally, reasonably, and powerfully—its jurisdiction over a global superpower. For the United States, meanwhile, it would have been an opportunity to reflect on the harms of 20 years of war. Khan’s defenders may cite his pragmatism in averting any possibility of an all-out confrontation with the United States if its service members were indicted and warrants were issued for their arrest and transfer to the ICC to stand trial. But avoiding conflict is at odds with the court’s purpose. Accountability is not a voluntary exercise. And as the international law scholar Sophie Duroy has powerfully argued, “when the Prosecutor of a universal court, with a mandate to end impunity for all persons without any distinction, decides to pursue a one-sided investigation . . . the resulting impression is more one of double standards than pragmatism.”

Still, hope remains. The ICC has reversed itself in the past when it comes to the United States. Bensouda’s request to open a full investigation into the war in Afghanistan was rejected in 2019 but then approved in 2020. Khan may also reverse his decision—but only if criticism and pressure mount on his office to reexamine his priorities and consider the long-term costs to international criminal justice and the rule of law.