The International Criminal Court (ICC) reopened an investigation on October 31st into war crimes and crimes against humanity committed in Afghanistan. The investigation had been planned to start in March 2020. However, no investigation by the ICC occurred then because the former government of Afghanistan wanted to investigate the crimes. The ICC does not prosecute crimes that are being investigated by courts of countries that are ICC members. In 2021, the Taliban took over Afghanistan, but the ICC did not believe the Taliban would investigate the crimes, causing the Court to decide to reopen the investigation.

ABC News reported that the ICC had planned to investigate all crimes committed in Afghanistan since 2003, which is when Afghanistan became a member of the ICC. This included crimes committed by the former Afghan Government, U.S. military, Taliban, and the Islamic State of Khorasan Province (ISKP). However, prosecutor Karim Khan has planned to investigate only crimes committed by the Taliban and ISKP. According to Al Jazeera, when explaining why he would not investigate crimes committed by the U.S., Khan said, “I made a decision, based upon the evidence, that the worst crimes in terms of gravity and scale and extent seem to be committed by the so-called Islamic State [in] Khorasan and also the Taliban.” Although the Taliban and ISKP have committed many crimes, the ICC’s decision not to investigate crimes committed by the U.S. military or the former Afghan government has been opposed. Patricia Gossman, the associate Asia director at the Human Rights Watch said, “[c]ontinued impunity in the country’s decades-long conflict will only further the instability, corruption, discrimination, and recurrence of violence that the Afghan people have long endured.”

The U.S. military, former Afghan government, Taliban, and ISKP have all been accused of committing war crimes in Afghanistan. According to the Council on Foreign Relations, the U.S. military and Central Intelligence Agency (CIA) committed crimes against 80 detainees (including Al-Qaeda prisoners) who suffered torture and cruel treatment during interrogation techniques in 2003 and 2004. According to the Human Rights Watch, before the Taliban take over, the Afghan government attacked civilians who were believed to support the Taliban. However, there was little evidence the civilians who were killed had supported the Taliban. It is also likely the CIA knew about the attacks by the Afghan government. Since taking over Afghanistan, the Taliban has killed many former government officials, and detained women who have protested the closing of girls’ schools. ISKP, an ISIS affiliated group, has killed 1,500 civilians, mostly Shia Muslims and other religious minorities.

In the past, the ICC had wanted to investigate crimes committed by the U.S. military and former Afghan government. This was opposed by President Donald Trump who imposed sanctions on the ICC. The sanctions were later lifted by President Joe Biden, though the Biden Administration has also opposed the Court investigating crimes committed by the U.S. military. Usually, the ICC does not investigate crimes committed by nationals of countries that are not members of the Court. However, the ICC can investigate crimes committed by the U.S. in Afghanistan since Afghanistan is a member of the ICC. Although the U.S. government has opposed investigations, it cannot prevent the ICC from investigating crimes committed by the U.S. military, and the ICC has often investigated crimes that occurred in countries whose governments did not cooperate with investigations.

Khan’s decision to investigate the Taliban and ISKP while not investigating the U.S. or former Afghan government has been viewed as creating a double standard because all four committed war crimes. Amnesty International viewed Khan’s decision to not investigate the crimes committed by the U.S. military as evidence of the fact that the Court had chosen to not investigate more powerful perpetrators of the conflict. Reuters reported that the ICC chose to not investigate crimes committed by the U.S. military or former Afghan government since it needed to use resources to investigate the Taliban. However, Amnesty International considered it likely that this has been used as an excuse for not investing crimes committed by the U.S. military or former Afghan government, and that ICC has enough resources for more investigations.

The ICC has been criticized for not investigating the crimes committed by the U.S. and former Afghan government, but has been supported for investigating the Taliban and ISKP. It is more likely the ICC can prosecute the Taliban and ISKP because the Rome Statute of the ICC allows the Court to prosecute for crimes against humanity, which include persecution based on gender or religion. According to The Diplomat, the Taliban closing girls’ schools and opposing protests for women’s rights are viewed as persecution, and could be considered a crime against humanity. Since ISKP has killed religious minorities in Afghanistan, it could be prosecuted for religious persecution. Also, there are enough witnesses who escaped from Afghanistan who will be able to report crimes committed by the Taliban to the ICC. Although the Taliban has committed crimes against humanity, an investigation by the ICC could force the Taliban to be more supportive of human rights. Currently, most countries do not recognize the Taliban as the legitimate government of Afghanistan due to its opposition to human rights. However, it is possible that the Taliban might gain further support if it does more to support rights for women and religious minorities. The Taliban has wanted to be recognized as the legitimate government of Afghanistan as this would allow trade with other countries to increase, and sanctions could be removed.

Although an ICC investigation would reveal more about the crimes U.S. military officials committed, it will be difficult for the ICC to prosecute U.S. military officials. Soon after the ICC was created, the U.S. Congress passed the American Service-Members’ Protection Act which protected military personnel from being prosecuted by the ICC, and authorized the President to stop any prosecution. Since the ICC cannot prosecute military officials who committed crimes, the officials will have to be prosecuted by the U.S. government. According to the Human Rights Watch, the Justice Department investigated the torture of detainees in 2009, but no charges were made because the investigators did not find enough evidence due to their inability to interview detainees who were tortured. However, there is now more evidence torture occurred. In 2014, the U.S. Senate Intelligence Committee released a report about the interrogation techniques that occurred in Afghanistan which included waterboarding, sleep deprivation, and death threats. In order for a new investigation to charge military officials who committed crimes, it would likely need to include interviews from detainees, while also proving the fact that military officials knew interrogation techniques were torture and ineffective in gathering intelligence.

Conflicts in Afghanistan have occurred since the country became a member of the ICC, and have continued after the Taliban took control. Although the ICC has been opposed for not investigating crimes committed by the U.S., it is unlikely the Court would be able to prosecute U.S. military officials. However, the ICC should prosecute the Taliban and ISKP. If this occurs, the ICC will be important for supporting the rights of women and religious minorities in Afghanistan. U.S. military officials committed crimes in Afghanistan, and the U.S. government needs to do more to prosecute war crimes since this cannot be done by the ICC. If both the ICC and U.S. government are successful in prosecuting war crimes, it is possible there will be fewer conflicts in Afghanistan, and the U.S. military will stop to torture detainees.