The ICC shuts the Afghanistan inquiry that could have reached US troops, and only the Taliban case survives

The International Criminal Court has formally closed the line of its Afghanistan investigation that could have examined alleged war crimes by United States troops, in a decision made public on Friday in The Hague.

Judges cited “significant limitations” on the prosecution’s ability to investigate and secure evidence, and said prosecutors had not shown they could effectively pursue allegations in Afghanistan beyond the case against the Taliban. The same decision closes a probe into Islamic State Khorasan Province, the militant group behind some of Afghanistan’s deadliest bombings.

What survives is narrower: an investigation into alleged crimes by the Taliban since it retook power in 2021. Arrest warrants already issued against four Taliban leaders remain in effect. The prosecutor’s office said it had appealed the ruling, without giving details.

What was the court looking at?

The investigation was authorised in 2020 and reached back to 2002. It covered alleged crimes by Afghan government forces, the Taliban, US troops and US intelligence operatives, including the treatment of detainees.

That never came close to happening. In 2021, prosecutor Karim Khan said he would “deprioritise” the parts involving US forces, citing the difficulty of gathering evidence, and focus on the Taliban and the Islamic State group. Earlier this year, judges ordered the Afghanistan work split into two cases: the Taliban case, and the original inquiry, which had shifted towards Islamic State. It is that second case that has now been closed.

Why does this matter if the US part was dormant anyway?

Because a dormant case is still an open one. As long as the inquiry existed, US personnel who served in Afghanistan could in theory be investigated, and Washington treated it as a live threat.

The US is not a member of the court and does not recognise its jurisdiction. It has sanctioned 13 current and former court staff over the Afghanistan inquiry and the arrest warrants issued for Israeli officials. Secretary of State Marco Rubio has said President Trump “will never allow” the court to prosecute Americans, and in October vowed to dismantle it “brick by brick”.

Closing the case removes the most direct route to US troops. Whether it eases Washington’s pressure is unclear: the court’s founding treaty still allows it to prosecute anyone accused of atrocity crimes on the territory of a member state, and Afghanistan remains one.

Who wins and who loses?

For the Taliban, nothing changes: the case against its leaders continues. For victims of abuses by other forces between 2002 and 2021, including those of the Islamic State group, the ruling closes the only international court that was formally examining their cases.

For the court itself, it is a sign of the strain it is under. The judges’ own reasoning points to the practical limits on investigating a country the court cannot freely enter, at a time when its biggest critic is the world’s most powerful military.

Is there an Australian angle?

Australia is a member of the court, and its troops served in Afghanistan for two decades. Australia has dealt with allegations against its own forces at home: the 2020 Brereton inquiry found credible information that Australian special forces unlawfully killed 39 people, and the Office of the Special Investigator was set up to build cases for prosecution. The court generally steps in only when a country is unwilling or unable to investigate itself, and Friday’s ruling does not change that.