Editor’s note: This article is part of Just Security’s ongoing coverage of the Taliban takeover in Afghanistan

Recent events in Afghanistan have been dispiriting for all of us who care about human rights and international justice. The Taliban takeover of the country – and the rapid withdrawal of U.S. and allied forces – have given rise to concerns about the safety and rights of women and girls, ethnic, religious and sexual minorities, and allies of the former government. Taliban assurances that they have changed since 2001 are belied by the desperate scenes of crowds mobbing the gates at Kabul Airport, clearly unwilling to take them at their word, and accounts emerging of their conduct. Yet in the avalanche of media coverage of the crisis in the last couple of weeks, very little attention has been given to one of the few remaining avenues for accountability in Afghanistan: the International Criminal Court (ICC).

The ICC has already opened an investigation into alleged war crimes and crimes against humanity in Afghanistan. Initiated by then-ICC Prosecutor Fatou Bensouda in November 2017, the investigation was authorized by the Appeals Chamber of the Court in March 2020, and encompasses alleged crimes committed by the Taliban, Afghan National Security Forces, and U.S. military and CIA personnel.

Progress had stalled, because in March 2020 (shortly after the Appeals Chamber’s decision gave the Prosecutor the green light) the government of Afghanistan asked the Prosecutor to defer the investigation pursuant to Article 18(2) of the Rome Statute so it could provide evidence that it would hold those responsible to account. This request relied on the principle of complementarity, whereby the ICC only prosecutes cases that national authorities are not willing or able to pursue. There was every reason to doubt the Afghan government’s representations that it had initiated effective investigations or prosecutions: Human Rights Watch reported that of the 151 cases the government claimed to be investigating, only 28 made it to court.

Regardless of the merits of the Court pausing its Afghanistan investigation last year, there is no longer any basis for a pause: the Taliban are clearly not going to administer justice in relation to historical war crimes and crimes against humanity committed in the country – particularly as the vast majority of these are alleged to have been committed by the Taliban. The current ICC Prosecutor, Karim Khan, in a recent statement expressed concern about developments in Afghanistan and indicated his office would continue to monitor the situation. There is now a clear imperative for an immediate recommencement of the investigation and Prosecutor Khan should formally reject the (still pending) request for deferral under Article 18(2).

There is also a case for Prosecutor Khan going further, by undertaking to prosecute any future atrocities committed by the Taliban. This approach would appear to be consistent with the broad scope of the investigation: the Appeals Chamber of the ICC authorized an investigation

[I]n relation to alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties in the period since 1 July 2002.

In reaching this conclusion, the Appeals Chamber explicitly rejected the Pre-Trial Chamber’s ruling that its authorization of an investigation should be restricted to the incidents specifically mentioned in the Prosecutor’s request (and incidents that are “closely linked” to those incidents). The Appeals Chamber placed particular weight on the fact that the Prosecutor would have not been able to reference crimes which may occur after the request for authorization. It is arguable that Prosecutor Khan is actually under a legal obligation to investigate future – as well as historical – crimes in Afghanistan, with Article 54(1)(a) of the Rome Statute mandating the Prosecutor to “extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under the Statute…”

There is already mounting evidence that the Taliban committed wide-ranging atrocities as they swept Afghanistan in recent weeks. Amnesty International has reported that the group massacred nine ethnic Hazara men after taking control of their village in Ghazni province in July. Eyewitnesses told Amnesty’s researchers that that six of the men were shot and three were tortured to death, including one man who was strangled with his own scarf and had his arm muscles sliced off. According to Human Rights Watch, Taliban forces advancing in Ghazni, Kandahar, and other Afghan provinces have summarily executed detained soldiers, police, and civilians with alleged ties to the Afghan government. One such report of a massacre of civilians in revenge killings in Kandahar drew criticism from the U.S. and U.K. embassies, describing the murders as possible war crimes.

The Prosecutor’s request for an investigation in Afghanistan characterized the situation as a non-international armed conflict (NIAC). Given that the present context in the country appears still to constitute a NIAC – that is to say, the Taliban’s recent overthrow of the Afghan government and associated actions represents more than a “situation of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature” (which Article 8(2)(d) makes clear are excluded from the Court’s war crimes jurisdiction) – certain reported atrocities such as those in Ghazni and Kandahar would likely amount to war crimes under the Rome Statute. There may also be the potential for further prosecutions arising from Taliban reprisals following the cessation of hostilities where the crime can nevertheless be shown to occur “in the context of and associated with” the conflict.

The Prosecutor’s request for an investigation also argued there was a reasonable basis to believe the Taliban had committed crimes against humanity (which are not contingent upon the existence of a NIAC), citing

[A] widespread and/or systematic attack against civilians perceived to support the Afghan government and/or foreign entities, or to oppose Taliban rule and ideology, involving the multiple commission of violent acts in pursuance of the policy of the Taliban leadership to seize power from the Government of Afghanistan and impose its rule and system of beliefs by lethal force.

This criterion seems equally fulfilled in the present situation, with reports emerging from cities that have fallen in recent weeks of door-to-door searches and reprisal killings, as well as sharp curbs on the rights of women and girls – which certain commentators have characterized as “gender apartheid” – as the Taliban seek to impose their radical vision of society. Many women express fear that the Taliban will crack down on their rights further, now that NATO troops and other foreigners – including diplomats and members of the media who could draw attention to Taliban abuses – have departed the country. Given that the Prosecutor’s Policy on Case Selection and Prioritization indicates that the Prosecutor should take into account “the impact of investigations and prosecutions on ongoing criminality” [emphasis added], Prosecutor Khan should target focus on cases involving revenge killings and the persecution of women and girls.

There would undoubtedly be significant obstacles to any efforts by the Court to prosecute historical and ongoing atrocities by the Taliban. The most salient of these is practical. Application of the complementarity principle – and the lack of an ICC police force – means that the Court is generally reliant on cooperation from ICC Member States to access their territory, gather evidence and, ultimately, execute arrest warrants. Such cooperation is unlikely to be forthcoming from the Taliban – particularly for investigations of the Taliban’s own alleged crimes.

Prosecutor Khan should nevertheless take immediate action to identify and secure all documents and physical evidence that have been collected over the past two decades concerning the commission of atrocities in Afghanistan. The Prosecutor should also re-engage with international and regional organizations, as well as civil society groups (particularly those representing victims) to draw upon their support in ensuring evidence of recent and future events, whether incriminating or exonerating, is obtained in a manner such that potential future prosecutions are not jeopardized. Moreover, the U.N. Human Rights Council should launch a robust investigative mechanism (which it has so far failed to establish, despite calls to do so) to document, collect and preserve evidence on ongoing crimes and human rights abuses across Afghanistan, which will facilitate future prosecutions by the Court.

Despite the challenges, there are several reasons to believe that the ICC could be an effective vehicle for accountability in Afghanistan. First, Article 27 of the Rome Statute expressly states that immunities or other privileges that officials may enjoy under national or international law will not preclude prosecution. The Court has demonstrated a willingness to issue arrest warrants for serving heads of state, and has tried the former Vice-President of the Democratic Republic of Congo and President of Cote d’Ivoire. Even if the Taliban secures the international recognition that it evidently seeks, this will not prevent ICC prosecutions against its leaders – a feature which distinguishes the Court from most other possible mechanisms of justice.

Second, the eyes of the world are currently fixed on Afghanistan, focused on any missteps by the Taliban that might indicate a return to pre-2001 levels of violence and repression. International support for ICC investigations has typically been at its highest under similar conditions. For instance, following the U.N. Security Council’s referral of Libya to the ICC in February 2011, U.K. Prime Minister David Cameron, French President Nicholas Sarkozy, and U.S. President Barack Obama voiced their support for the Court’s role in the ongoing civil war. This moment of international scrutiny may present an opportunity for the Court to play a leading role in holding the Taliban to account and deterring future abuses.

Third, an investigation into historical and ongoing atrocities by the Taliban could play a powerful role in strengthening the Court’s legitimacy. The Court has faced criticism for focusing on African countries – perhaps unfairly, given that the majority of these investigations were initiated following a request from the affected country or a U.N. Security Council referral. Given that Afghanistan is in South Asia, an ICC investigation of the situation there would provide a degree of geographic balance to the Court’s activities. The investigation is also striking because, unlike most ICC cases to date, it covers all sides of the Afghanistan conflict: the Taliban, the (former) Afghan government, and the United States. This fact has generated resistance and countermeasures to the Afghanistan investigation, but also offers the Court the opportunity to demonstrate that it will not be deterred by political pressure, whether from powerful States or the Taliban.

Afghanistan has experienced decades of war, marked by gross human rights violations and a culture of impunity. The dreadful events of the last couple of weeks mean that, for the vast majority of Afghan victims, the ICC is the best hope for justice. The Court was founded to secure accountability for “the most serious crimes of concern to the international community as a whole.” By advancing its investigation in Afghanistan, the Court can realize that purpose, and send a message to the Taliban that mass atrocities will not be tolerated.

Andrew Hilland is the Director of the Inquiry on Protecting Children in Conflict and a former political advisor to Gordon Brown. Catherine Gilfedder is a Senior Associate in Dentons’ International Arbitration Group and a former intern at the ICC. The authors are writing in a personal capacity.  

Image: Prosecutor of the International Criminal Court (ICC) Karim Asad Ahmad Khan holds a press conference at the Ministry of Justice in the Sudanese capital Khartoum on August 12, 2021. (Photo by EBRAHIM HAMID/AFP via Getty Images)