Last year in Kampala (Uganda), the Assembly of States Parties to the International Criminal Court (ICC) decided to celebrate 17 July as the Day of International Criminal Justice, to commemorate the adoption of the Rome Statute of the International Criminal Court (adopted 1998). As we celebrate International Criminal Justice Day, Ajmal Pashtoonyar* takes the opportunity to reflect on the challenge of impunity and the ICC jurisdiction in Afghanistan. It is fitting to do so, as Afghanistan was one of the States that voted to establish the ICC.
Much has been written about contemporary Afghan wars in the past thirty plus years. Be it the Soviet Union invasion to prop up the Afghan communist regime, the civil wars, including the Taliban regime, the UN mandated and NATO-led international military intervention, or the post 9/11 Operation Enduring Freedom led by the United States. In all these conflicts, serious violations of human rights have been a common occurrence. A Human Rights Watch report published in 2005 rightly noted that the task of documenting past human rights violations in Afghanistan “will fill bookshelves” (see here).
Compared to other conflict situations, as in the former Yugoslavia, Rwanda and Sierra Leone, the international response to confront impunity in Afghanistan illustrates a grotesque failure. This in spite the fact that in Sarajevo, Kigali, Freetown and Kabul atrocities occurred over the same period of time. Sadly, in Afghanistan the suffering continues and justice remains illusive.
Thus far, serious efforts to seek justice are largely absent. The question of impunity and justice is subsumed by political and security considerations. The lack of political will to promote justice (both by the Afghan government and the international community, minus the usual hortatory proclamations on human rights) is further compounded by the inept and fragile state of Afghan legal institutions and entrenched political and economic interests, including those of emboldened former warlords and alleged perpetrators of serious human rights violations.
Despite the challenges and drawbacks of the past decade, there has been some progress. Notable among these include: the ratification of the Rome Statute of the ICC by the Afghan Government (February 2003); the development of the 2005 Transitional Justice Action Plan and its proposed revision at the 2010 Kabul Conference; the Afghan Government commitment to implement recommendations of soon to be published Afghanistan Conflict Mapping Report; the increasing capacity and advocacy role of the Afghan civil society and human rights institutions; and, lastly, the initiation of the Afghan Peace and Reintegration Plan (APRP) and the establishment of the High Council for Peace.
Most importantly, on the question of justice, the 2005 transitional justice action plan mandates an accountability framework to implement Afghanistan’s international legal obligations, including accountability of serious international crimes. Similarly, under the APRP, individuals accused of serious crimes are referred to judicial authorities. However, it remains to be seen whether these measures are effectively pursued and implemented.
The International Criminal Court jurisdiction in Afghanistan
In February 2003 the Government of Afghanistan ratified the Rome Statute of the ICC (see here). Thus, the ICC is an independent and complementary part of Afghanistan’s judicial system with jurisdiction over crimes within the Rome Statute committed in its territory since the treaty ratification. Since the Rome Statute is in force as of July 2002, the Afghan government can declare and extend the Court’s jurisdiction to that date. However, the ICC has no jurisdiction prior to July 2002.
In 2007, the ICC Prosecutor formally acknowledged that the situation in Afghanistan was under preliminary examination. Moreover, this examination into alleged crimes covers “all actors involved” in the ongoing Afghan conflict (see here). To date, the Prosecutor’s office has sent several requests of information, however, the Afghan government has yet to respond.
In undertaking its preliminary examination in Afghanistan, the Prosecutor is guided by legal framework provided in the Rome Statute to determine whether there is a reasonable basis to proceed with an investigation.
Nonetheless, as a court of last resort, it is the duty of the Afghan Government to exercise jurisdiction over those bearing greatest responsibility for international crimes. That is, through proper investigation and prosecution of alleged perpetrators. The ICC can only intervene and exercise its jurisdiction should the Afghan government is unable or unwilling to genuinely proceed with an investigation or prosecution.
Moving forward, it remains to be seen how the Afghan government responds to pending requests of the ICC Prosecutor. Similarly, questions remain on the application of 2007 “Afghan Amnesty Law” and the ICC jurisdiction.
Lastly, it is unclear whether the APRP process, including the Afghan Government’s owns investigations and prosecutions of crimes within the jurisdiction of the Court will satisfy the principle of complimentarity.
As for international forces currently operating in Afghanistan that are also States parties to the Rome Statute are responsible to investigation and prosecute their nationals for any allegations of crimes within the jurisdiction of the Court that may have been committed in Afghanistan. In regards to nationals of non-state parties who may have committed crimes within the jurisdiction of the Court in Afghanistan, for instance the US, Iranians or Pakistanis, the ICC can exercise jurisdiction if the UN Security Council refers such a situation to the Prosecutor or if the non-state party accepts the jurisdiction of the Court in relation to the crime in question (see Rome Statute, Article 12 and 13 on exercise of jurisdiction).
In its Kampala Declaration, the ICC States Parties noted “there can be no lasting peace without justice and that peace and justice are thus complementary requirements”. On this international criminal justice day, lets hope the international community heeds their own call to ensure that Afghanistan’s ongoing transition is not devoid of a justice process, which is intrinsically linked to lasting peace and stability in that region.
* Ajmal Pashtoonyar (J.D. ’09, uOttawa) is the 2009-2010 Gordon Global Fellow and a former Justice Sector Officer, Afghanistan Task Force at the Canadian Department of Foreign Affairs. He is the author of soon to be published report that examines the question of accountability for international crimes in Afghanistan.
This article was last updated on 31 Mar 2020