With the fall of Kabul, the International Criminal Court's chief prosecutor continues to look into suspected war crimes. However, there is a catch.
Karim Khan, the International Criminal Court's newly appointed Chief Prosecutor, asked authorization to continue the investigation into suspected war crimes in Afghanistan on September 27. The inquiry had been halted because the Afghan government wanted to take the lead, but with the fall of Kabul, this was no longer a possibility.
Surprisingly, the prosecutor's proposal this time is confined to the actions of the Taliban and the terrorist group IS-K; Khan also excludes crimes done by the Afghan military and US forces, which were previously investigated.
This attitude contrasts sharply with that of his predecessor, Fatou Bensouda, who went to great lengths to include the US military forces and even the CIA in the inquiry. The Trump administration attempted to persuade her by threatening her with court fines and the revocation of her US visa, but Bensouda refused.
Khan cites two reasons for the United States' involvement being 'de-prioritized.' First and foremost, he is working with a limited budget, which forces him to make decisions. Instead of exempting one party to the disagreement from inquiry, the prosecution might have avoided this difficulty by restricting itself to the most significant problems.
Second, he mentions the latest IS-K attack on Kabul airport, which occurred during the evacuation process. However, a few days later, an American drone assault on an innocent NGO employee resulted in the deaths of 10 people. To summarize, leaving the United States out of the survey is not essential nor justifiable.
However, the Prosecutor's and the Court's credibility may be jeopardized as a result of the indemnity. The Court was formed at the time to guarantee that major crimes, including those perpetrated by powerful countries, were not left unpunished. The perpetrator's political clout should not be used to shield him or her from inquiry and prosecution.
Many southern nations, particularly Islamic ones, will regard the prosecutor's judgment as even further confirmation of their suspicions that powerful countries that may be implicated in war crimes are out of luck: the Court concentrates mostly on lesser-developed countries.
That conclusion has previously been reached by a number of African countries. They thought that the Court gave disproportionate emphasis to purported war crimes perpetrated on their continent.
The fact that the great majority of the instances involved African individuals further strengthened their point of view. Despite the fact that most African nations finally rejected to quit, they have actually left the Court: they no longer work with it and publicly condemn it.
Some NGOs have questioned the prosecutor's ruling, but the northern party states have remained mute. The Court's legitimacy will be further eroded as a result of this silence.
It's critical that the tide shifts. The Assembly of Party States, which will take place in The Hague in early December, provides an excellent chance for this. Delegations may then alert the Chief Prosecutor of the decision's negative effects.
Because providing unquestioning hospitality to an institution that generates complaints in the global south tarnishes our status as a center of international justice, the Netherlands should take the lead on this.
Authors:
Geert-Jan Alexander Knoops is a lawyer and professor of Politics of International Law at the University of Amsterdam.
Tom Zwart is Professor of Cross-cultural Law at Utrecht University and Director of the Cross-cultural Human Rights Center at VU University Amsterdam.
[Disclaimer : This article first appeared on De Volkskrant]