On November 20, 2017, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, requested authorization from the Court's Judges to initiate an investigation into alleged war crimes and crimes against humanity, committed in the context of the ongoing armed conflict in the Islamic Republic of Afghanistan ("Afghanistan"). This request the office of the Prosecutor that there is a reasonable basis to believe that the following categories of crimes within the Court's jurisdiction have occurred:

i. Crimes against humanity and war crimes by the Taliban and their affiliated Haqqani Network;
ii. War crimes by the Afghan National Security Forces ("ANSF"), in particular, members of the National Directorate for Security ("NDS'") and the Afghan National Police ("ANP"), and
iii. War crimes by members of the United States ("US") armed forces on the territory of Afghanistan, and by members of the US Central Intelligence Agency ("CIA") in secret detention facilities in Afghanistan and on the territory of other States Parties to the Rome Statute, principally in the period of 2003-2004.

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This request was firs rejected by the pre-trial Chamber II of ICC on April 12, 2019, as the judges decided that an investigation into the situation in Afghanistan at this stage would not serve the interests of justice.

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However, later on 5 March 2020, the Appeals Chamber of the International Criminal Court decided unanimously to authorize the Prosecutor to commence an investigation into alleged crimes under the jurisdiction of the Court in relation to the situation in the Islamic Republic of Afghanistan. (See more.)

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Accordingly, and as the United States' actions in Afghanistan was among the conducts the Prosecutor would investigate, the United States' President declared a national emergency on June 11, 2020, by issuing E.O. 13928. This executive order granted the authority to the Secretary of the State to designate foreign person who is, among other things, directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States. Later, on September 2, 2020, the United State, designated Fatou Bensouda (ICC prosecutor) and Phakiso Mochochoko (head of the Office of the Prosecutor’s Jurisdiction). 

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