THE BIG PIVOT: ICC Prosecutor Khan’s not so slight, Afghan slight sleight of hand

In preparing to resume my investigation, if authorisation is granted, I am cognizant of the limited resources available to my Office relative to the scale and nature of crimes within the jurisdiction of the Court that are being or have been committed in various parts of the world. I have therefore decided to focus my Office’s investigations in Afghanistan on crimes allegedly committed by the Taliban and the Islamic State – Khorasan Province (“IS-K”) and to deprioritise other aspects of this investigation. Karim A. A. Khan QC, 27 September 2021

ICC Prosecutor Karim A. A. Khan, Q.C.

In a well-crafted public relations message, ICC Prosecutor Karim A. A. Khan QC keeps hope alive for the Afghan victims of Article 5 crimes and atrocities suffered over the past twenty years. What a relief. Hooray!

But hold on.

With panache and dexterous prose, in true fashion of a polished and adroit diplomat, he abandons the investigation against US servicemen and personnel by first claiming that it was really a matter of complementarity. Alluding that the Afghan authorities had effectively taken over the investigation by virtue of asking the Office of the Prosecutor (OTP) under Article 18(2) of the Rome Statute to take a one year hiatus – a specious claim at best since Afghanistan was neither able nor willing when considering the US’s opposition to such investigations, not to mention Afghanistan’s reliance on US armed forces to keep the Taliban at bay despite US President Trump’s disastrous agreement with the Taliban – Khan would have us believe that the investigation was going oh-so-well up until the Taliban takeover of Afghanistan. But despair not: “This is not to suggest that there can never be any prospect of adequate and effective proceedings in Afghanistan, carried out by State authorities in compliance with the Statute. They are not, however, available in Afghanistan at this time. I remain willing to constructively engage with national authorities in accordance with the principle of complementarity.

His excuse (calling it an explanation would obscure the concealment of his intent) is that he has bigger fish to fry, namely the Taliban and IS-K, and thus, for the sake of prioritization and rationalization of resources, his office will focus on the most recent and ongoing crimes committed and being (or have yet to be) committed in Afghanistan.

Khan’s message is a patently deceptive feel-good justification for inaction.  A sleight of hand.  Smoke and mirrors.

Even with Article 18(2) having kicked in, Khan is pulling a con. There is no indication that the OTP washed its hands of the investigation former ICC Prosecutor Fatou Bensouda doggedly pursued to hold US servicemen and personnel to account for crimes allegedly committed in Afghanistan. Khan would have us believe that the baton was handed off to the Afghan authorities, thus absolving the OTP of any investigative responsibilities. Nonsense.

As tempting as it may be to embrace Khan’s shrewdly constructed statement, if Afghanistan was indeed carrying out legitimate and credible investigations that would lead to prosecutions in Afghanistan should the evidence warrant such, then why would Khan feel the need to comment on this matter? In doing so, he not only pivots by shifting the onus onto Afghanistan, but creates the illusion that his office will, with all deliberate speed, go after the Taliban and IS-K – hence his “application for an expedited order” to resume the investigation of the Situation in Afghanistan. But notice, he is not asking to resume the investigation related to US servicemen and personnel. That investigation he leaves to the Afghan authorities for the distant future. As for using the rationalization of resources for his pivot, it is as transparently illusory as his eloquence is a masterful artful dodge.

Don’t get me wrong, I do not blame Khan for wanting to make nice with the saner and more engaging US administration under President Biden (see here and here for the  wacky and hostile attacks by US President Trump and his minions on the ICC and Bensouda). I also do not blame him for wanting to extricate the OTP from the quagmire (and quandary) it found itself in because of Bensouda’s courageous – or some may say imprudent, if not foolhardy – decision to press for investigations against US forces and personnel for crimes committed in Afghanistan. It certainly was not a low-hanging fruit.

The US was never going to cooperate (here, here, and here), precious resources would need to be expended for a righteous but unattainable cause – think of the Pre-Trial Chamber’s clever attempt to usurp the “in the interest of justice” discretionary authority accorded solely to the Prosecutor, which was ultimately reversed by the Appeals Chamber. So why not cozy up to the US and hope for future cooperation and maybe assistance in matters of higher gravity? Looking at it from this perspective, his volte-face on the investigation of the Situation in Afghanistan appears bold, pragmatic, realpolitik; politically expedient and opportunistic as it may be, it is arguably sound.

So where is the rub?

Well, why not level with the victims? Why the fairy tale that somehow the OTP will seriously devote its time and resources to do an actual, honest-to-goodness investigation against the Taliban and IS-K for events in Afghanistan, when, in fact, it is patently clear that it is utterly impossible and assuredly not a prudent use (prioritization) of the limited resources of his Office.

Call a spade what it is. And yes, come clean and state the obvious: the US (because it is the US) will get a pass from the OTP under my (Khan’s) watch. But to use the current events as a means of peddling false hope and fairy tales insults our intelligence. Bluntly, Khan’s application for an expedited order before the Pre-Trial Chamber II is theater of the absurd masquerading as prosecutorial acumen.

But hey, the congratulatory fanfare on social media over Khan’s statement was smashing; the narrative as framed paid dividends. Query whether the abandoned victims will view Khan’s request for an expedited order and his attendant statement as just an appeasement that wantonly appeases.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

2 thoughts on “THE BIG PIVOT: ICC Prosecutor Khan’s not so slight, Afghan slight sleight of hand”

  1. Important post. No doubt.

    Yet, the prosecutor, should grant us more details before judging here his moves.

    To claim that he must prioritize in accordance with his limit resources, sounds very reasonable. But, not enough. It would be better for him, to specify more on that. Maybe the evidences are more available and better consolidated regarding Khorasan Province. It is hard to know. Maybe, investigating American “black sites” is far greater more complicated. We need better understand.

    On the other hand, not to forget:

    At the time, everybody blamed Bensouda and the pre trial chamber, for concentrating solely on Africa, and being afraid actually, to deal with Americans or other Western states. And all of a sudden, has been revealed as totally baseless. The appeals chamber, has reversed the decision of the pre trial chamber. Mistake of law. So, why would we think, that judges of the pre trial chamber, are cowards, but not the judges of appeals chamber ?

    So, in order to really understand and being sure, we must wait, or having more details, or dig more positive evidence for certain illicit bias.

    Thanks

  2. Just concerning “black sties” mentioned, I quote from Wikipedia:

    CIA controlled black sites were used by the U.S. government in its War on Terror to detain enemy combatants.[1] US President George W. Bush acknowledged the existence of secret prisons operated by the CIA during a speech on September 6, 2006.[6][7] A claim that the black sites existed was made by The Washington Post in November 2005 and before this by human rights NGOs.[8]

    A European Union (EU) report adopted on February 14, 2007, by a majority of the European Parliament (382 MEPs voting in favor, 256 against and 74 abstaining) stated the CIA operated 1,245 flights and that it was not possible to contradict evidence or suggestions that secret detention centers where prisoners have been tortured were operated in Poland and Romania.[1][9] After denying the fact for years, Poland confirmed in 2014 that it has hosted black sites.[10]

    In January 2012, Poland’s Prosecutor General’s office initiated investigative proceedings against Zbigniew Siemiatkowski, the former Polish intelligence chief. Siemiatkowski was charged with facilitating the alleged CIA detention operation in Poland, where foreign suspects may have been tortured in the context of the War on Terror. The possible involvement of Leszek Miller, Poland’s Prime Minister from 2001 to 2004, is also considered.[11][12]

    Here:

    https://en.wikipedia.org/wiki/Black_site

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