New ICC prosecutor under pressure to reverse decision on US in Afghanistan

It's not how the International Criminal Court will have wanted to end its first 100 days with a high-profile new prosecutor: fighting a fire brigade action against a barrage of criticism for his decision to "deprioritise" alleged US, CIA and Afghan government war crimes in Afghanistan.

In the most stinging attack on Karim Khan, the powerful American Civil Liberties Union (ACLU) called on him to "reverse" that first decision immediately, warning that it sent "a troubling message" about the ICC's capacity to "credibly investigate war crimes committed by agents of powerful countries".

Its human rights director, Jamil Dakwar, said the ACLU represented three men who had been detained and tortured in Afghanistan, and warned that the net effect of Khan's unexpected change of direction would be to "indefinitely delay a measure of justice for victims of US torture programmes".

Khan (51) succeeded Fatou Bensouda in mid-July, and such a forthright challenge from such an august civil rights organisation, aimed directly at his credibility, has the potential to cause severe perception problems for both the man and the institution during his nine-year tenure.

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Torture

ICC appeals judges last year cleared the way for Bensouda to investigate the alleged mass killing of civilians by the Taliban, as well as – in the interests of even-handedness – allegations of torture by Afghan government forces and by the US, including the CIA, between May 2003 and 2014.

Controversially, the judges decided unanimously that the inquiry should include allegations that CIA "black sites" – to which captives were forcibly transferred, or "rendered", for so-called "enhanced interrogation"– were operated in Poland, Lithuania and Romania.

It was the first decision in the ICC's 15-year history to involve the US – which is not a signatory to the court – and it led to a dramatic souring of relations with the Trump White House, which subjected Bensouda to personal sanctions she described as "an attempt to interfere with the rule of law".

Those sanctions were dropped by the Biden administration in April, though it made plain that the US continued to “disagree strongly” with the ICC’s position on Afghanistan and its perceived attempt to “assert jurisdiction” over non-member states, particularly the US.

Icy relations

Given such icy relations, as the legal elite lined up earlier this year to succeed Bensouda, all eyes were on how the new prosecutor would contend with the hegemonic power of the US, which “supports” the court but refuses to subject its own citizens to it.

Last week they got their answer. Khan said the refocusing of the investigation, filed with judges, was as a result of the Taliban’s seizure of control – a “significant change of circumstances” that meant there was no prospect of “a genuine and effective domestic investigation”.

As a result, he planned to "deprioritise" the investigation into suspected crimes by US personnel and Afghan government troops and concentrate instead on the Taliban and on the Islamic State Khorasan insurgents who killed 60 Afghans and 13 US marines in a suicide bomb at Kabul airport on August 26th.

The ACLU was not the only group normally supportive of the ICC to respond angrily.

Katherine Gallagher of the Centre for Constitutional Rights, who represents victims of US torture, said she was "stunned" by the decision, saying it sent a message that delaying and bullying yielded results.

US drone strike

Amnesty International agreed with the ACLU that Khan should reverse his decision, especially following the US drone strike that killed 10 civilians, including seven children, in Kabul on August 29th.

The International Federation for Human Rights noted that Khan had announced his decision without any prior notification to victims or their legal representatives.

In the face of such criticism, Khan argues that the ICC’s change of strategy represents a better marshalling of scarce resources and exemplifies his willingness to take unpalatable decisions in a complex geopolitical world.

However, having alienated African Union countries under previous prosecutors, the ICC can ill afford to add beleaguered South Asian civil society to the list of the alienated by appearing to roll over accommodatingly before the might of the US at the first challenge.