Screen Shot 2020 03 08 at 6.32.25 PM - Afghanistan in Criminal Law

Afghanistan: Potential Beginning of Peace Settlement

The International Criminal Court (“the ICC”) is an international tribunal which has jurisdiction to prosecute individuals for the most serious crimes of concern to the international community namely the crime of aggression, crime of genocide, war crimes and, crimes against humanity.

With the agreement of all involved judges, the Appeals Chamber of the ICC decided to authorise 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 on March 2020. The hearing mainly focused on whether the decision taken by the Pre-Trial Chamber concerned the ‘jurisdiction’ of the court, as this would have allowed the victims’ groups to appeal. Now it is expected that victims of war crimes in Afghanistan  are one step closer to accessing  justice.

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According to ICC official website, “the Appeals Chamber’s judgment amended the decision of Pre-Trial Chamber II of 12 April 2019, which had rejected the Prosecutor’s request for authorisation of an investigation of 20 November 2017 and had found that the commencement of an investigation would not be in the interests of justice. The Prosecutor had filed an appeal against that decision”.

ICC official website also stated,

“The Appeals Chamber found that the Prosecutor is authorised to investigate, within the parameters identified in the Prosecutor’s request of 20 November 2017, the crimes alleged to have been committed on the territory of Afghanistan since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation in Afghanistan and were committed on the territory of other States Parties to the Rome Statute since 1 July 2002”.

What are the legal implications?

Under Article 15(4) of the Statute, “if the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.”

As it was described in the judgement

“The pre-trial chamber is not called under article 15(4) of the Statute to review the Prosecutor’s analysis of the factors under article 53(1)(a) to (c) of the Statute.  The pre-trial chamber’s authorisation of an investigation should not be restricted to the incidents specifically mentioned in the Prosecutor’s request under article 15(3) of the Statute and incidents that are ‘closely linked’ to those incidents. the Appeals Chamber considers that the Pre-Trial Chamber’s finding regarding the nexus requirement was incorrect. There is no reason to limit the Prosecutor’s investigation in the manner envisaged by the Pre-Trial Chamber”.

This issue has attracted the attention of many scholar and criminal lawyers, as Fergal Gaynor, counsel of International Criminal Court, has stated,

“the decision constitutes a robust defence of the rule of law, in the face of formidable political pressure. Across a range of issues, the judges of the Appeals Chamber unanimously agreed with the arguments presented on behalf of the victims and the Prosecutor. These include the ‘interests of justice’ test in the Rome Statute, the territorial scope of the war crime of torture, and the scope of the investigation. Hundreds of thousands of Afghan women, children and men have suffered horrific abuses as a result of atrocities by the Taleban, ISIS, Afghan government forces, and other forces active in Afghanistan. The survivors’ search for justice has been long and largely fruitless. The legacy of Afghanistan’s long history of impunity has been continued atrocity”.

How will the investigation in Afghanistan be conducted? 

To properly investigate the case, essential evidence and documents will be collected from different credible sources independently, impartially, and objectively.  There is no deadline for investigation, as it can take as long as needed to collect the required and relevant evidence. ICC has published a Q&A about the recent situation in the Islamic Republic of Afghanistan. As stated by the Q&A,

”The investigation can If sufficient evidence would be collected to establish that specific individuals bear criminal responsibility, the Prosecutor would then request Judges of a Pre-Trial Chamber to issue either summonses to appear or warrants of arrest. The responsibility to enforce warrants of arrest issued by an ICC Chamber remains with the States. States Parties to the Rome Statute have a legal obligation to cooperate fully with the ICC. Other States may be invited to cooperate with the ICC and may decide to do so on a voluntary basis”.

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So what can be considered from the news?

Members of the International Criminal Court seek legal protection from atrocity crimes, as nationals of powerful countries normally commit such crimes.  It is worth noting that the above mentioned decision is considered the first decision in ICC’s 15-year history to involve the United States, as the U.S is not a member of the ICC. Today, the survivors of atrocities in Afghanistan finally have a taste of justice. It seems that an  impartial investigation is going to be done by the court in order to protect the victims’ rights. This judgment can be the beginning of a process for lasting peace with logistical and political controversies.

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