International Criminal Court in Afghanistan

Presentation of Dr. Sima Sama, Head of Afghanistan Independent Human Rights Commission in Consultative Meeting on Obligation of Afghanistan under(ICC)

Good morning and I wish you a good day. Thanks from “Afghanistan Watch” and the respected Ambassador of Sweden who has attended this Consultative Meeting. Sweden is currently chairing the European Union. I am very happy that such a consultative meeting has been organized.

The International Criminal Court (ICC) is a mechanism for securing justice internationally. In early nineteen nineties activities related to this Court started and its Statute was prepared. On July 2002 the Court was approved by the member states of the United Nations and entered into force.

By the end of 2003 approximately a 100 countries of the world including Afghanistan, had ratified the Court. The philosophy behind establishment and implementation of (ICC) as well as the need for an international mechanism of securing justice originates from the fact that some countries either don’t have the ability to secure justice or they lack proper political commitments to do so. For instance, there are some crimes that remain within jurisdiction of the national laws of the states while some others such as genocide, war crimes and crimes against humanity are subject to international jurisdiction.

Most of the countries particularly those from the Asia, Africa and Latin America and some of other undeveloped countries don’t have the ability to investigate such crimes. I don’t mean saying that such crimes are committed only in undeveloped or developing countries but I want to urge that crimes might be committed in the developed countries too. However, existence of such an international mechanism is a serious need of our time.

Afghanistan has signed the Rome Statute on March 2003 and (ICC) shall be enforceable in this country from January 2003. Implementation of (ICC) doesn’t mean only introducing perpetrators of genocide, war crimes and crimes against humanity to this Court but also means adjusting criminal laws of the member states to match (ICC) Statute. Adjusting national laws is a requirement that needs to be performed by member states under the (ICC) Statute. Afghanistan has taken actions in this regard but insufficiently.

Organizing such meetings by government institutions and Afghanistan civil societies is a serious need. First of all Afghanistan Criminal Law needs to be adjusted. Secondly we need to consider that in this circumstances where Afghanistan justice and judicial system can’t not prosecute and investigate the international crimes such as genocide, war crimes and crimes against humanity can Afghans benefit from this international mechanism for securing justice?

Yes, everyone can send information to (ICC) and request the Court to intervene in Afghanistan. The other mechanism that can affect (ICC) intervention in Afghanistan is the UN Security Council.

Here I would like to share my personal experience from Sudan. In late 2003 and early 2004 about 200 thousand civilians were killed in Sudan. War victims of Darfur reached to 200 thousand in a very short period of time. Most of the villages were burnt down and approximately 2 million civilians were displaced. Due to severity of the crimes, the UN Security Council established a five member penal to investigate the crimes within a period of 3-6 months. The members of the penal went to Darfur/ Sudan and after conducting interviews with the victims and displaced civilians out of Sudan prepared a confidential report to be submitted to the UN Security Council.

The UN Security Council decided to refer these cases to ICC. Sudan has signed the Rome Statute but hasn’t ratified the direct intervention of the Court. On February 2007, ICC after conducting the necessary investigations that took two years announced two of the power- brokers as criminals. One of them was Sudan’s deputy minister of interior affairs during the conflicts. The second accused was the leader of a militant group called “Jinjil”. Each of the suspects was accused of committing more than 50 types of crimes. ICC requested from Sudan government to send the suspects to this court but unfortunately, the government of Sudan refused to do so. As you know ICC continued its investigations. Finally Omar Albashir, the real commander behind these crimes was also accused as criminal by the Court.

I shared this experience to show that fact that the villager who directly commits the crime is not the accused but the real accused is the person who led the war. Though Omar Albashir refused to appear in the international criminal court but he and the two other accused persons are sanctioned from traveling to countries who are state parties to (ICC) and the European countries. If any of these accused persons travel to any of the mentioned countries the Interpol is responsible to arrest and refer them to (ICC).

I don’t want to take much of your time. But I just wanted to mention an example of the (ICC) procedure for proceeding criminal cases. That is: if a case is referred to (ICC) via the UN Security Council, (ICC) can take action.

Fortunately, since Afghanistan has ratified the Rome Statute, government employees, activists of civil institutions and even victims can take action in this regard.

Also, a month ago, (ICC) announced that this Court is going to take some action in Afghanistan. They have registered more than forty cases so far. This is something that can help peace building process in the country and stop war crimes, crimes against humanity and genocide to be further committed on Afghanistan territory.

My last point is this that six years have past since Afghanistan has ratified (ICC). But this country hasn’t been able to benefit from (ICC) in securing justice. To achieve this objective cooperation of government and civil institutions as well as institutions working for victims’ protection is needed. Thus, we can use from this international mechanism and take effective measures.

The other point I would like to touch: this is not important that all suspects must be Afghans; currently 42 countries of the world have military presence in Afghanistan. If they commit any of the international crimes within (ICC) jurisdiction we can refer them to the Court.

At end I would like to say that unfortunately, under the Agreement signed by George Bush and President Karzai on January 2003, Afghanistan can’t introduce American citizens to (ICC). However, the UN Security Council can exercise its authority in this regard.

I wish success for all and once again would like to extend my gratitude to Afghanistan Watch that has organized this Consultative Meeting in a proper time.

Based in Kabul, the Afghanistan Watch focuses on activities that promote justice, respect for human rights and a culture of accountability and transparency in the country. Recognizing the need for greater understanding of the perils and opportunities facing Afghanistan today, the organization aims to conduct in-depth research and publish reports and papers on issues relevant to its goals and values independently or in partnership with other national and international organizations.

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International Relations and Security Network(ISN) / Security Watch
14 December 2009

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