Men stand next to a pile of clothes and footwear of the victims a day after a gun attack at a political rally in Kabul in 2020. Photo: AFP / STR

After the messy withdrawal of the US forces from Afghanistan last month, which marked the end of a 20-year foreign occupation, many unanswered questions and unaddressed issues remain.

With the Taliban now in power and claiming that their rule will differ from what we saw before 2001, one would be well advised to remain hopeful yet cautious by taking their word with a pinch of salt.

However, what is needed to break with the past and start this new chapter in the history of Afghanistan with a clean slate is to hold those responsible for the Afghan people’s misery and suffering accountable.

The International Criminal Court (ICC) has already opened an investigation into alleged war crimes and crimes against humanity in Afghanistan, initiated on November 20, 2017, by then-ICC prosecutor Fatou Bensoud and later authorized by the Appeals Chamber of the court, in March 2020.

“The prosecutor is authorized to commence investigation in relation to events dating back to 2003 as well as other alleged crimes [related to] Afghanistan,” said Piotr Hofmański, the chairman of the appeals tribunal, when he was reading out the decision on reversing an earlier ruling by the Pretrial Chamber that dismissed the prosecutor’s motion to launch an investigation into the Afghanistan situation on the basis that it would not serve “the interests of justice.”

In a unanimous judgment, the five appellate judges – from Canada, Peru, Poland, Uganda and the United Kingdom – ruled that there was a reasonable factual basis to proceed with investigating alleged crimes committed in Afghanistan since May 2003 and on the territory of other state parties to the Rome Statute since July 2002 by the Taliban, Afghan National Security Forces, and US military and Central Intelligence Agency personnel.

Furthermore, the Appeals Chamber widened the prosecutor’s scope of the investigation to include criminal acts Bensoud might find while further probing the Afghan case.

As far the Taliban are concerned, the prosecutor has focused on crimes against humanity including murder, imprisonment or other severe depravation of physical liberty, and persecution against identifiable groups of civilians, including on political and gender grounds.

According to the 2017 report issued by the Office of the Prosecutor, the investigation included tentative estimations that the Taliban and its affiliated groups were responsible for 17,000 civilian deaths, 7,000 of which were the result of deliberate and targeted civilian attacks, including attacks on schools, shrines, mosques, and humanitarian organizations’ offices.

The Afghan security forces were investigated for several war crimes against hundreds of civilians: torture and cruel treatment; outrages upon personal dignity, such as humiliating and dehumanizing abuses; and sexual violence.  

When it comes to the US, the prosecution at that time said, “There is reasonable basis to believe that, since May 2003, members of the US armed forces and the CIA have committed the war crimes of torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence pursuant to a policy approved by US authorities.”

Although the US is not a party to the Rome Statute and has not consented to its jurisdiction, the statute provides for the ICC’s jurisdiction over nationals of non-state parties for conduct occurring in the territory of state parties.

In this particular case, drawing upon a 2014 report published by the US Senate Select Committee on Intelligence, US military and intelligence personnel committed torture on Afghan territory and the territory of other parties to the Rome Statute, namely Lithuania, Poland and Romania.

The ICC report published in 2016 confirmed there was a reasonable basis to believe the US military had committed torture at secret detentions, known as “black sites,” created by the George W Bush administration and operated by the CIA.

As British human-rights lawyer Karim Khan is the new ICC prosecutor, the authors of this article appreciate the fact that he has recently decided to file an application to resume his office’s investigation into alleged atrocities committed in Afghanistan since July 1, 2002.

Nevertheless, we are disappointed with its inexplicably selective nature, and agree with Patricia Gossman, the associate director for Asia at Human Rights Watch, who told The Associated Press that it was a “really disturbing statement by the prosecutor to say the investigation will only prioritize some of the parties to the conflict – and in particular seemingly to ignore entirely the very serious allegations against US forces and CIA.”

The ICC has been part of the global justice system since 2002, and it is designed to prosecute those responsible for genocide, crimes against humanity, and war crimes as the court of last resort.

To the detriment of its reputation, historically, it has predominantly prosecuted individuals from Africa, with some legal scholars even arguing that it has turned to be a tool in the hands of the Global North to single out crimes exclusively committed in the Global South.

By focusing on all the suspects to the Afghan conflict, the ICC would not only restore its credibility as an independent international court and hope that everyone is equal before the law but, most important, clear the way for a truly new beginning for the Afghan people – something they desperately need and deserve.

Alfred de Zayas

Alfred de Zayas is professor of international law at the Geneva School of Diplomacy, former secretary of the UN Human Rights Committee, and the UN's independent expert on the promotion of a democratic and equitable international order from 2012 to 2018. You can follow him on Twitter @Alfreddezayas.

Adriel Kasonta

Adriel Kasonta is a London-based political risk consultant and lawyer. He is former chairman of the International Affairs Committee at the oldest conservative think tank in the UK, Bow Group. Kasonta is a postgraduate of London School of Economics and Political Science (LSE). You can follow him on Twitter @Adriel_Kasonta.