{"id":83498,"date":"2021-10-21T11:08:26","date_gmt":"2021-10-21T09:08:26","guid":{"rendered":"https:\/\/www.justiceinfo.net\/?p=83498"},"modified":"2021-10-21T12:42:54","modified_gmt":"2021-10-21T10:42:54","slug":"afghanistan-war-of-position-icc","status":"publish","type":"post","link":"https:\/\/www.justiceinfo.net\/en\/83498-afghanistan-war-of-position-icc.html","title":{"rendered":"Afghanistan: a war of positions at the ICC"},"content":{"rendered":"\n

Shortly after his arrival, Karim Khan throws a spanner in the works. A recent statement by the chief prosecutor of the International Criminal Court that his Afghanistan probe will not \u201cprioritise\u201d alleged crimes by United States troops or its allies in that country, has laid bare the divisions between those who think the court should tackle major powers and those who believe it should be clear about its limitations.<\/strong><\/p>\n\n\n\n\n\n\n\n

Karim Khan, the new International Criminal Court (ICC) prosecutor<\/a>, had been in office for just over three months when he dropped a bombshell in the international justice arena, saying that his office will now focus<\/a> on crimes committed by the Taliban and by the Islamic State Khorasan Province, the Islamic State group\u2019s affiliate in Afghanistan. He wrapped up this news in an announcement that he has requested pre-trial judges now authorise his work, put on hold by his predecessor, because Afghan authorities had asked for a delay<\/a> on the basis they were pursuing cases nationally.<\/p>\n\n\n\n

Afghanistan joined the court in 2003. The preliminary examination into crimes committed on its territory had been going on for more than a decade before former prosecutor Fatou Bensouda asked judges to authorize a full investigation. Judges first balked<\/a>, saying that it would not be in the interests of justice, but that decision was overturned on appeal. Then in March 2020 Kabul requested the prosecutor suspend her office\u2019s work in favour of an Afghanistan-led process. Meanwhile, the prosecutor and a senior colleague were subjected to a US presidential executive order sanctioning them and their work.<\/p>\n\n\n\n

Details in the preliminary examination, annually reported, showed that the prosecutor was documenting crimes allegedly committed by U.S. forces, including extrajudicial killings, drone strikes that killed an untold number of civilians, and allegations of torture.<\/p>\n\n\n\n

A litmus test for justice?<\/h2>\n\n\n\n

For Afghan human rights defender Horia Mosadiq, Khan\u2019s decision to limit the scope of the investigation is harmful. \u201cIn the eyes of so many Afghans, including myself, you would just see it as a biased investigation other than being impartial\u201d, she said, adding that \u201cmistrust\u201d of the court has always been there, knowing \u201cthe pressure that the court was under\u201d.<\/em><\/p>\n\n\n\n

It was a \u201cnecessary\u201d statement says Sergey Vasiliev of University of Amsterdam, to reassure some parties that as Khan resumed the investigation they would not be under active investigation: \u201ca Trojan Horse,\u201d as he terms it, because many observers would welcome the additional news that the prosecutor\u2019s probe will restart.<\/p>\n\n\n\n

Liz Evenson of Human Rights Watch is among them. She had been sceptical that the Afghan authorities were going to conduct real investigations. But she says the new British prosecutor\u2019s approach is, to her, \u201cboth inconsistent with victims\u2019 access to justice, inconsistent with promoting the idea that the rule of law applies to all\u201d.<\/p>\n\n\n\n

The prosecutor does have discretionary power to prioritize or de-prioritize any aspect of the investigation, acknowledges Vasiliev, \u201cbut the optics here are rather troubling,\u201d he says. Khan\u2019s statement focused on recent serious atrocities and couched his decision in a reference to the UN Security Council\u2019s condemnation of attacks on the US military by ISIS-K. Was this \u201ca convenient opportunity to shelf the US part of the probe,\u201d he muses, while emphasising that that is the \u201cappearance\u201d, rather than necessarily the full reality. Evenson notes though that it feels \u201cunusual\u201d to make this kind of public determination before the investigation has even begun.<\/p>\n\n\n\n

In response<\/a> to the prosecutor, lawyers trying to have victims represented at the court have also shown<\/a> their concern. \u201c[The] Decision to deprioritise and seemingly hold in abeyance the investigation in relation to, among others, crimes committed as part of the \u2018CIA detention program\u2019 deprives the victims of any prospect for a genuine and effective investigation, and eventually the right to truth and reparations for the extreme injustices they faced as part of this program\u201d, write the lawyers. Judges have meanwhile reminded<\/a> them that victims have no role to play in this stage of the process.<\/p>\n\n\n\n

Instead their focus is on who actually represents Afghanistan as the formal interlocutor to the court, which \u2013 until decided \u2013 may delay the investigation again. <\/p>\n\n\n\n

The ICC has long faced questions about its ability to take on the world\u2019s most powerful countries. The last prosecutor opened inquiries into potential Russian crimes in Georgia<\/a> which has delivered nothing and into Ukraine which is unfunded, and into alleged Israeli crimes in Palestine<\/a> with no more tangible result. All to considerable praise. She also backed off a preliminary examination into acts committed by British troops in Iraq<\/a>.<\/p>\n\n\n\n

 \u201cThe Afghanistan situation and the investigation into the alleged crimes of US servicemen are widely regarded (along with the Palestine situation) as a true litmus test for the ICC,\u201d says Vasiliev. \u201cWill it proceed on the course of collision with powerful states\/their allies, or rather do their bidding while focusing its attention on \u2018safer\u2019 actors?\u201d. Part of the bigger picture says Evenson is that the prosecutor\u2019s choice not to go ahead with looking at US forces \u201ccreates this sort of recipe if you obstruct, if you make cooperation difficult, then you, your conduct or the conduct of your nationals could be shielded from scrutiny. And that's clearly not a message that we think that the prosecutor should be sending\u201d, she adds.<\/p>\n\n\n\n

\u201cThe very definition of double-standards\u201d<\/h2>\n\n\n\n

The ICC is, \u201cat the very least [giving] the appearance of applying double standards\u201d, reacts Matt Cannock, from the human rights organisation Amnesty International.<\/p>\n\n\n\n

In September 2019, he notes the prosecutor \u201cprovided<\/a> that, in its request for authorisation to investigate in Afghanistan, it had identified 78 incidents which were attributed to US forces and CIA [while 50 were attributed to the Afghan government forces and 75 to the Taliban].\u201d In the prosecutor\u2019s own words, he recalls, \u201cthese incidents were selected<\/a> from \u2018the most prevalent and well-documented allegations\u2019 in order \u2018to reflect the gravest incidents\u2019 [emphasis added]\u2019. In this light, the decision to deprioritize and therefore not actively investigate a single incident from those which seemingly formed the largest proportion of its authorization request is exceptionally hard to comprehend\u201d.<\/p>\n\n\n\n

\u201cDeprioritizing investigations into war crimes allegedly committed by US nationals \u2013 of a globally-northern \u2018major-power\u2019 - while prioritizing investigations of war crimes allegedly committed by actors from the global south \u2013 is the very definition of double-standards\u201d, Cannock continues.<\/p>\n\n\n\n

Such alarm is understandable says Vasiliev, when taking the history and geopolitical context into account.  \u201cThe de-prioritization of those aspects of the Afghanistan investigation is something a number of States Parties may have badly wanted, and many of them are likely relieved to hear about this course correction. Whether or not this is a definitive triumph of \u2018double standards\u2019 rather than a delayed\/phased approach, or a long game, remains to be seen\u201d.<\/p>\n\n\n\n

\u201cWe are under no illusion,\u201d says Cannock, \u201cthat Karim Khan will come, as his predecessor did, under immense pressure from powerful states as his office looks set to investigate situations where their nationals and interests are affected. It is tragic therefore that his first major decision seems to align with the objectives of those powerful states who had sought to infringe his Office\u2019s independence\u201d.<\/p>\n\n\n\n

Proper resources and credible cases<\/h2>\n\n\n\n

In his statement, Khan explains his unpopular decision. \u201cThe gravity, scale and continuing nature of alleged crimes by the Taliban and the Islamic State, which include allegations of indiscriminate attacks on civilians, targeted extrajudicial executions, persecution of women and girls, crimes against children and other crimes affecting the civilian population at large, demand focus and proper resources from my office, if we are to construct credible cases capable of being proved beyond reasonable doubt in the courtroom.\u201d<\/p>\n\n\n\n

The key words here are proper resources and credible cases, while the court is for a long time locked in a two-step with states parties, where repeated requests for more budget from them are denied until the court can show that it\u2019s actually able to deliver successful prosecutions.  <\/p>\n\n\n\n

Douglas Guilfoyle of University of New South Wales, Canberra, commends his \u201cstrong signal\u201d in the Afghanistan situation. \u201cWe have a prosecutor now who wants to focus resources and focus on what can be done successfully within the envelope of resources that the court has, which seems to me a fundamentally realistic approach. And the point I keep making is already the best funded International Criminal Tribunal that has ever existed\u201d.<\/p>\n\n\n\n

Guilfoyle says he is surprised by the tone of reaction to Khan\u2019s statement in the NGO community. In particular, the critique of Khan\u2019s decision as being \u2018double standards dressed up as pragmatism\u2019<\/a>, is an \u201caccusation of bad faith or unprofessional conduct, which I find quite extraordinary,\u201d he says, pointing out that \u201cinternational criminal justice is always and can only be selective\u201d and suggesting it is \u201cludicrous\u201d to assume the ICC is \u201cgoing to investigate every possible situation within its jurisdiction, then every possible crime and every possible party that falls within a situation under investigation\u201d.<\/p>\n\n\n\n

Evenson agrees the court has a \u201ca real dilemma\u201d and acknowledges that \u201cmissteps by court officials have probably limited the court's effectiveness as well, even within the resources it has\u201d But she says this dilemma \u201ccan't be solved by pursuing selective justice in a given situation. Once the ICC is active in a situation, it really needs to take an open-ended approach\u201d, she argues.<\/p>\n\n\n\n

These continued arguments about what kind of a court the ICC is, and whether it can deliver justice have been brought into focus again with the new prosecutors\u2019 decision. \u201cUnless we take a more pragmatic view of the court,\u201d says Guilfoyle, \u201cits ability to deliver anything particularly significant is always going to be limited.\u201d<\/p>\n\n\n

\r\n\t\t\t\t\t\r\n\t\t\t
Recommended reading<\/div>\r\n\t\t\t
\"Taliban<\/div><\/a>\r\n\t\t\t\r\n\t\t\tAfghanistan: ICC more than ever at a standstill\r\n\t\t<\/a>\r\n\t\t\r\n\t\t\t\t<\/div>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

Shortly after his arrival, Karim Khan throws a spanner in the works. A recent statement by the chief prosecutor of the International Criminal Court that his Afghanistan probe will not \u201cprioritise\u201d alleged crimes by United States troops or its allies in that country, has laid bare the divisions between those who think the court should […]<\/p>\n","protected":false},"author":79,"featured_media":83490,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[562],"tags":[2700],"ji_location":[2571],"class_list":["post-83498","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-icc","tag-karim-khan","ji_location-afghanistan"],"acf":[],"yoast_head":"\nAfghanistan: a war of positions at the ICC - JusticeInfo.net<\/title>\n<meta name=\"description\" content=\"A recent statement by the chief prosecutor of the International Criminal Court that his Afghanistan probe will not \u201cprioritise\u201d alleged crimes by 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