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ICC rules Afghanistan investigation may proceed after two-year hiatus – JURIST

Pre-Trial Chamber II of the International Criminal Court (ICC) Monday authorised prosecuters to resume their investigation into atrocities committed in Afghanistan since May 1, 2003, following a two-year hiatus. The Chamber examined materials submitted by Afghanistan and found “that Afghanistan is not presently carrying out genuine investigations.” Additionally, “[t]he limited number of cases and individuals prosecuted by Afghanistan, as shown by the materials submitted and assessable by the Chamber, cannot lead to a finding that the ICC investigation must be deferred.” The Chamber emphasised that the authorisation decision is limited to crimes falling within the conflict as it existed at the time of the original investigation request. Alleged crimes which are unrelated to such situations and conflicts or related to any new armed conflict fall outside the scope of the investigation.Prosecuters first submitted a request for authorisation of an investigation pursuant to Article 15 on November 20, 2017. The Chamber rejected the request on April 12, 2019, finding that it  “would not serve the interests of justice.” This decision was overturned by the Appeals Chamber on March 5, 2020. However, the investigation was halted following a request from the Government of Afghanistan seeking a deferral pursuant to Article 18(2) of the Rome Statute. The government stated it was “investigating or [has] investigated its nationals or others within its jurisdiction with respect to criminal acts allegedly committed within the authorised parameters of the Situation in Afghanistan.” ICC prosecutor Karim A.A. Khan sought to review the deferral on September 27, 2021. At that time, Khan said he concluded, “there is no longer the prospect of genuine and effective domestic investigations into Article 5 crimes within Afghanistan.”