Presentation of Dr. Haider Allamah, Dean of Law Faculty of Kateb Institute of Higher Education and an Afghan Lead International Criminal Law Expert in Consultative Meeting on Obligation of Afghanistan under(ICC)

Introduction

Finally on July 1, 2002 the long wanted desire and aspiration of human beings for access to a universal court with a world – wide jurisdiction that can prosecute criminals of the most serious crimes such as genocide, crimes against humanity and war crimes came to an end and ICC entered into force.

The people of Afghanistan that had experienced such crimes over decades and had just freed themselves from these atrocities but still were suffering from the injuries and devastations of these most serious crimes, were enthusiastically listening to mass media broadcasting news of the ICC that had started to function as an international court.

On February 10, 2003 the government of Afghanistan acceded to ICC and became a member state of this court. More than five years has past since Afghanistan has ratified ICC and now is the time that Afghanistan should take practical steps to perform its commitments regarding the International Criminal Court.

With Afghanistan ratification of the Rome Statue of the International Criminal Court a number of commitments and obligations become necessary to be fulfilled by this country. If Afghanistan is going to be a committed and accountable member of the International Criminal Court it needs to:

1) Criminalize International Crimes

Criminalizing means: criminalizing the international crimes in the national laws of the country. According to article 1 of the Rome Statute, ICC enjoys a complementarity jurisdiction. It means the state parties have the first responsibility to prosecute crimes committed on their territories. Whenever any of the crimes set forth in articles 6, 7 and 8 of the Statute is committed on territory of any of the state parties, the state party shall have the right to investigate the crime and prosecute the perpetrator(s). If the state party doesn’t want or can not investigate such crimes, then ICC shall interfere and exercise its legal jurisdiction.

Thus, if any of the above mentioned crimes is committed on Afghanistan territory, the Afghan government is obligated for investigation and prosecution of such crimes. Investigating and prosecuting of such crime is possible when the necessary laws are legislated inside the country and the most serious crimes set forth in the Statute are criminalized in the national laws. This way, the Afghan courts under provisions of these laws, shall have jurisdiction over these crimes and can prosecute the perpetrators. Otherwise, the “legality of crimes and punishments” which is a popular principle will be questioned.

Unfortunately, we lack such an important law in our country currently.

2) Genuinely Respect Principles of Fair Trial in the National Laws

This is obvious that Afghanistan can only perform its commitments and obligations as a committed and responsible member of the ICC when this country fully respects and recognizes principles of fair trial in its national laws and practically apply them.

Fair Trial can be defined as such:

“Hearing and adjudicating all civil and criminal cases of the parties - both procedural and substantive cases- in a legally authorized, independent, impartial court while guaranteeing and respecting legal rights of the parties in all stages of the trial.”

In other words, fair trial means procedural justice in adjudication.

Respecting this procedural justice is important to reaching a fair, just and impartial conclusion. Fair conclusion (judgment) is possible when both parties to a case receive what they deserve. In case one of the parties has taken away the other parity’s right this right must be returned, the criminals must be punished and the innocents freed or in a nutshell, creating a balance between rights of the parties. Creating such a substantial balance requires for developing a similar procedural balance throughout the judicial processes. The facilities necessary for proving lawsuits or denying charges must be provided equally for both parties. The court system must, in general, provide for a circumstance where no space for doubt or uncertainty regarding the bases and sources of the judges’ decisions remains. This is one of the fundamental rights of individuals and society.

On the other hand, enjoying rights means that if those rights are violated, there must exist

some assured legal ways to re- obtain them. That is why, for protecting fundamental rights of individuals, laws of countries criminalize violation of those rights. Similarly, these laws, for the same purpose, consider the suspects as innocent as long as their crimes have not been proved in a legally authorized impartial court with due legal processes including providing the suspects with enough time and facilities to defend themselves.

It looks that Afghanistan criminal laws have failed to fully respect principles of fair trial in some cases. I have highlighted these shortcomings somewhere else in details. But here I would like to very briefly mention that Afghanistan’s membership to ICC requires and obligates this country to make the necessary amendments to its national laws in the following areas and adjust Afghanistan laws according to the current developments of criminal law in the international level.

A) Fully Respecting Rights of Suspects and Accused Persons

Article 55 of the Rome Statute of the International Criminal Court recognizes the following rights for suspects during investigation:

Under this article a suspect,

- shall not be compelled to incriminate himself/herself or forced to confess;

- shall not be subject to torture, coercion or any other form of cruel, inhuman or degrading treatment;

- shall have the right to have an interpreter free of any cost;

- shall not be subject to arbitrary arrest or detention;

- shall have the right to be informed from the grounds that indicate his/ her involvement in a crime;

- shall have the right to remain silent;

- shall have the right to choose defense lawyer; and

- Shall have the right to be questioned in the presence of a counsel.

Articles 66, 67 and 85 of the Rome Statute have recognized the following rights for the accused persons:

- Presumption of innocence;

- The right to have adequate time for preparation of the defense;

- The right to freely and confidentially communicate with counsel;

- The right to be tried without undue delay;

- The right to examine witnesses against him/her and to obtain the attendance and examination of witnesses on his/her behalf;

- The right to ask compensation for any unlawful arrest or detention. Article 85 of the Statute of the International Criminal Court says: “anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”

Afghan law though include some very positive points regarding the rights of suspects and accused persons but there are still some gaps to be filled and decrease the distance between Afghan laws and international standards. For example, articles related to compensation for victims of unlawful detention are not clear, transparent and proportionate.

B) Protecting the Victims and Witnesses

Protecting the victims and witnesses is very important for securing justice in criminal cases. The victims as one of the two main parties to cases and witnesses as informers from the crimes can play an important role in finding truth related to crimes.

Considering the above mentioned important fact, international human rights documents including the Statute have always been emphasizing on victims protection. Victims’ protection has three aspects:

- Securing victims participation in all stages of a criminal case; - Protecting the victims;

- Compensation to the victims.

Securing victims’ participation in criminal process means: the victims must be given the chance to participate and appear in all stages of the trial; they must be listened to; their worries and concerns must be considered and their needs must be met. In other words, the best resolution for a criminal case is to conclude it with consent and satisfaction of the victims. Securing participation of the victims in criminal process is the first step to driving their consent.

The victims in order to be able to carry on their cases against the perpetrators free of any fear and threat need protection. Governments are responsible for security of the victims. This way, the victims can be secured from threats of perpetrators which are usually strong in international crimes.

International courts have adopted different approaches to protect victims. The protective measures include physical protection of victims in their residence, protecting victims while entering into and exiting from courts, hiding victims’ faces from the criminal suspects, hearing victims’ voices from behind screens in order to hide their identifications and even providing asylum for them.

Another aspect of victim protection is compensation. Crimes cause variety of material and intellectual loses to victims. Even, some of these loses can’t be compensated.

Criminal laws can only achieve their objective which is securing justice when they introduce compensation for loses caused to victims.

The Rome Statute of the International Criminal Court in many instances has emphasized on victims’ protection. Paragraph 3 of article 68 of the Statute regarding victims’ participations says: “where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.”

Regarding victims’ protection paragraph 1 of article 68 of the Statute says: “the Court shall take appropriate measures to protect the safety, physical and psychological well- being, dignity and privacy of victims and witnesses.”

Paragraph 2 of the same article says: “as an exception to the principle of public hearings provided for in article 67, the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special mean. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness…”

Article 75 of the Statute has emphasized on the need to compensate loses and damages caused to victims and has established due principles. In this regard, article 79 of the Statute suggests a Trust Fund to be established for the benefit of the victims and their families.

But in Afghanistan one has to say, that the victims’ rights in particular, victims’ participation in criminal proceedings and their protection have not been considered very well and the relevant Afghan laws are obviously incomplete comparing to international standards.

3) Drafting a Cooperation Law with International Criminal Court

Article 86 of the Statute obligates the state parties to fully cooperate with the Court in investigating and prosecution of crimes within jurisdiction of this Court.

These Cooperations in case requested by ICC from Afghanistan can occur in the following areas: investigating and prosecution of international crimes committed on Afghanistan territory, arresting, detention and submission of such criminals to ICC.

Other State Parties particularly those from developed countries, have drafted their cooperation laws from the very beginning months of their membership to ICC. But in Afghanistan after six years from its accession to ICC such a law hasn’t been drafted yet. Thus, drafting and approving of the cooperation law is very necessary.

Conclusion

The government of Afghanistan as a member state of the International Criminal Court is committed to fulfill its obligations under the Statute regarding the Court. The most important commitments are those action items mentioned in this briefing.

Certainly, signing of the Rome Statute of the International Criminal Court on June 17 1998 in Rome, Italy and entering into force of the Statute after sixty days from the signature of its sixtieth member state on July 1, 2002, is considered an appropriate response to the long- wanted desire of human beings regarding the existence of such a universal court; A court that can bring an end to the impunity enjoyed by international criminals of the most serious international crimes. In particular, the people of Afghanistan warmly welcome the launch of ICC and ask the Afghan government to fulfill its obligations under the Statute at the earliest convenience and gain its international status as a committed and responsible member of the court.

Had this court been established years ago, perhaps Afghanistan atrocities during internal power- struggles and under Taliban ruling would not have happened.