Pragmatism and power at the ICC: US crimes not a priority

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On 27 September 2021, International Criminal Court (ICC) Prosecutor Karim A. A. Khan QC issued a statement on how his office plans to resume investigations into the situation in Afghanistan. A key part of this statement is his decision to focus his office’s efforts “on crimes allegedly committed by the Taliban and the Islamic State – Khorasan Province (‘IS-K’) and to deprioritise other aspects of this investigation.” The ‘other aspects’ referred to include, notably, allegations of US war crimes and crimes against humanity.

This decision is damning both for victims of US crimes and for the ICC’s image, reinforcing perceptions that the Court targets only states in the Global South while yielding to political and resource pressure from more powerful states. Moreover, the ICC’s jurisdictional opportunity in relation to the US global war on terror was unique, as the US has not consented to the competence of any regional or international (quasi-)judicial mechanism. Khan’s statement of 27 September thus buries most hopes that US officials will be held accountable for the acts of torture, arbitrary detention, extraordinary rendition, drone strikes and other grave violations of human rights they committed in Afghanistan and elsewhere in the name of fighting terrorism.

From fragile hopes …

The ICC investigation on Afghanistan has been riddled with factual, procedural and legal obstacles since the beginning. On 5 March 2020, the Appeals Chamber finally authorised an investigation into war crimes and crimes against humanity in Afghanistan, including allegations that the CIA and US forces committed acts of torture there. This was already two and a half years after the Office of the Prosecutor (OTP) first requested authorisation, and almost a year after Pre-Trial Chamber II had denied it “in the interests of justice”. Heavily criticised, including by the Appeals Chamber, the now-reversed decision of the Pre-Trial Chamber equated the interests of justice with feasibility, effectively covering up the impunity provided by the US to CIA agents and rewarding the US’ lack of cooperation with the investigation.

The 2020 authorisation to proceed with the investigation created a long-awaited first breach into US national amnesia and impunity and gave rise to timid hopes that the US might finally be held to account. In fact, the Appeals Chamber concluded (para 79) that “the Prosecutor is authorised to commence an investigation in 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.”

This wording not only authorises an investigation into US crimes committed in Afghanistan; it also authorises investigation of incidents related to CIA black sites (secret prisons) located in Poland, Lithuania and Romania whenever the required nexus with the armed conflict in Afghanistan is satisfied. This is the case for persons captured outside Afghanistan and later mistreated on the territory of an ICC state party (for example, Poland, Lithuania or Romania) provided they were suspected of being associated with al Qaeda or the Taliban. It is notable that most victims of the CIA’s infamous rendition, detention and interrogation programme have been captured, detained and mistreated in this way.

The OTP investigation’s inclusion of CIA black sites situated in Eastern Europe thus represented a new opportunity for accountability and justice for the victims of the CIA’s rendition, detention and interrogation programme detained there, many of whom are considered ‘high value detainees’ and are still detained at Guantánamo Bay. One could also have hoped that the renewed attention to the CIA programme would have helped trigger the long-awaited impartial and effective domestic investigations on the part of ICC state parties who participated in the programme as black site hosts.

… To vanishing accountability

The Appeals Chamber’s judgment thus represented a crucial first step towards accountability, reversing the Pre-Trial Chamber’s apparent rewarding of the US’ lack of cooperation. However, although the Appeals Chamber sent an important signal that political concerns and threats could not be transformed into legal principles nor influence the ICC’s decision to investigate a situation, the Afghanistan investigation had already induced strong political reaction from the US (see President Trump’s Executive Order, imposing sanctions on former Prosecutor Fatou Bensouda and other OTP staff). It also promised to be extremely long and complex, even before the Taliban’s grab of power in August 2021. Yet, it appears almost cynical that, with US sanctions lifted in April 2021, the Prosecutor now takes the exact decision these sanctions sought to achieve.

Prosecutor Khan’s strategy, if not revisited, effectively closes the door to any remaining hopes that the US will be held accountable for any of the crimes it committed as part of its global war on terror, and that its victims will obtain justice and reparations. Some might praise Khan’s decision as pragmatic, enabling the ICC to investigate the situation in Afghanistan without triggering a full-on confrontation with the US. However, when the Prosecutor of a universal court, with a mandate to end impunity for all persons without any distinction, decides to pursue a one-sided investigation and to deprioritise the crimes committed by the most powerful perpetrators, the resulting impression is more one of double standards than pragmatism.

Whether or not the ICC has fully ended its efforts to ensure US accountability, Khan’s statement further reinforces the pattern of selectivity and de facto impunity for actors of powerful states that the ICC is often accused of following. And it is more than doubtful that this strategy will enhance the Court’s moral standing and legitimacy or help it maintain states’ trust.


Sophie Duroy is a postdoctoral fellow at the KFG Berlin-Potsdam Research Group ‘The International Rule of Law: Rise or Decline?’. She obtained her PhD in law at the EUI in November 2020, with a thesis entitled The Regulation of Intelligence Activities under International Law.