International Criminal Court To Investigate The Taliban And IS-K
On September 27, 2021, Prosecutor of the International Criminal Court (ICC), Karim A.A. Khan QC, filed an application seeking authorization for the Office of the Prosecutor (OTP) to resume its investigation in the Situation in the Islamic Republic of Afghanistan.
In March 2020, the Appeals Chamber of the International Criminal Court (ICC) decided to authorize the Prosecutor to commence an investigation into alleged crimes perpetrated in the territory of Afghanistan since May 1, 2003, as well as other alleged crimes associated with the armed conflict in Afghanistan. Afghanistan became a party to the Rome Statute on February 10, 2003. This gave the ICC territorial jurisdiction to investigate any crimes committed in Afghanistan or by its nationals from May 1, 2003 onwards.
Shortly afterwards, the Government of Afghanistan requested that the Prosecutor defers the investigation into the situation. Over the subsequent months, the OTP has been engaging with the Afghan authorities. However, because of the developments of August 2021, and the change of the national authorities, the Prosecutor of the ICC reassessed the situation and concluded that “there is no longer the prospect of genuine and effective domestic investigations into Article 5 crimes within Afghanistan.” As a result, the Prosecutor found it necessary to file the application to resume the investigation.
The Prosecutor announced that it would focus on crimes allegedly committed by the Taliban and the Islamic State – Khorasan Province (IS-K) and deprioritize other alleged crimes. As the argued, “The gravity, scale and continuing nature of alleged crimes by the Taliban and the [IS-K], 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.” The Prosecutor further justified the focus on the atrocities by the Taliban and IS-K with limited resources available relative to the scale and nature of crimes within the jurisdiction of the ICC, whether in Afghanistan or other parts of the world.
The decision comes shortly after Amnesty International published its report shedding light on the mass killings of the Hazaras by the Taliban and after the United States Holocaust Memorial Museum’s statement on the risk of crimes against humanity and even genocide against the group. Indeed, for decades, the Hazara Shia community have been subject to violence by several actors, including the Taliban and IS-K. IS-K is a self-proclaimed branch of the terror organization active in Afghanistan. In 2020, IS-K was responsible for, at least, 10 attacks against Shia Muslims, Sufi Muslims, and Sikhs resulting in 308 civilian casualties. The atrocities are expected to continue.
However, the atrocities against the ethno-religious group are not the only possible focus of the inquiry. Other atrocities include, indiscriminate attacks on civilians more broadly, targeted extrajudicial executions, persecution of women and girls, crimes against children and much more.
As the Taliban and ISIS-K are taking over Afghanistan and unleash their destructive reign, the ICC investigating the crimes as they happen will enable better monitoring and possibly also evidence collection than when such an investigation is conducted years after the alleged atrocities. Furthermore, the ICC having an eye on the situation may also mean that the alleged atrocities trigger quicker action and response from States and international actors. The next months will tell whether this is the case.