Unabated violence in Afghanistan, including the latest attack on the Afghan human rights activist Fawzia Koofi, is a stark reminder of the continued suffering of Afghan women, men, and children in America’s longest war of choice.
It is good to know that the Intra-Afghan dialogue may begin soon following the Afghan government’s release of Taliban prisoners. Every decent soul in the world looks forward to peace and stability in Afghanistan.
That said, one cannot but wonder if ordinary Afghans will ever be compensated for the war crimes and brutality committed by all parties in the conflict — the Afghan forces, the Taliban and, above all, the United States.
In the wake of the horrific genocide in Rwanda and Yugoslavia, the Rome Statute, a multilateral treaty that established the International Criminal Court (ICC), was adopted by a number of countries in 1998 and the court began its operations in 2002.
It is the only permanent international court with jurisdiction to prosecute individuals from member states for genocide, crimes against humanity, the crime of aggression and war crimes.
The US, the great champion of human rights, having previously signed the treaty withdrew its signature and refused to ratify it after 9/11, arguing that the treaty puts US servicemen and officials at risk of prosecution by a court that is “unaccountable to the American people.’’
The US objects to the ICC’s jurisdiction over nationals of non-member countries unless referred to the court by the UNSC, of which the US is the most powerful member.
In the case of Afghanistan, however, the Trump administration has found itself in an uncomfortable position. Since Afghanistan is an ICC member country, the court has the authority to investigate and prosecute crimes committed on Afghan territory by anyone — regardless of nationality.
In March 2020, the ICC authorised the court’s prosecutor to commence an investigation into alleged war crimes and brutality committed by all parties to the conflict, on Afghan territory.
The prosecutor has also been authorised to investigate war crimes, torture, and rape, committed by US Department of Defense and CIA personnel in “black sites” — a network of secret detention facilities — in Poland, Romania, and Lithuania, since these three countries are also ICC members.
That such an investigation has merit has been confirmed by a 2014 US Senate Select Committee on Intelligence report which concludes that the US military and CIA tortured Afghan nationals in these “black sites”.
In response to the ICC ruling, President Trump issued an executive order in June, unleashing a series of punitive measures that include sanctions, asset freeze as well as visa restrictions against the ICC personnel and their families. The executive order also potentially targets others who may assist the ICC investigations.
The US maintains that it has its own system of accountability. However, according to Human Rights Watch, “the US has conducted some limited investigations into alleged abuses by US personnel in Afghanistan. But senior-level civilian and military officials who could bear responsibility for authorising these abuses, or failing to punish them, have not been held to account before US courts.”
Following in the footsteps of the US, the Afghan government is also disapproving and critical of the ICC, arguing that the government is capable of launching inquiries into abuses committed by the Afghan security forces. Yet, there is no evidence of any viable mechanism or institution that may have brought perpetrators of crimes to justice over the last two decades.
Let us not forget how Abdul Rashid Dostum, accused of torture and rape, was Ghani’s former vice president. After the 2019 controversial Afghan elections, Ghani agreed to promote Dostum to the rank of Marshal of the armed forces. This factor is part of the Ghani-Abdullah power-sharing deal to settle the bitter election dispute. It has come to pass even as Afghans are demanding that accountability for war crimes, summary executions, forced disappearances, and systematic torture be part of the intra-Afghan dialogue.
Impunity for US forces has perpetuated serious abuses, some amounting to war crimes. They have cooperated with the Afghan forces to carry out night raids resulting in civilian casualties and forced disappearances. Their joint airstrikes have destroyed healthcare facilities and schools resulting in death and destruction.
According to a February 2020 UNAMA report, more than 10,000 civilians were killed and injured in 2019 alone, with 30% being children. The last decade has seen more than 100,000 casualties. The report holds the Taliban, the Afghan security forces and the US responsible, in that order.
It goes without saying that the real numbers may be much higher and that all parties to the conflict bear the responsibility for devastation and violence.
By blocking ICC investigations, the US is denying the Afghans the opportunity to get some justice. So, while the US, its allies, the Afghan forces, government officials and the Taliban will remain unaccountable, the long-suffering Afghan people will have no recourse to justice or compensation.
It is therefore the responsibility of member countries to give unflinching support to the ICC. They must join hands in resisting the Trump administration’s unprecedented attempts to pressurise the institution and curb justice.
The ICC certainly has its limits and there is room for reforms that can accelerate proceedings, improve management and usher in more effective prosecutions.
But despite its limitations it embodies the hope of ordinary people that if their post-conflict national courts fail them, powerful individuals may still be punished by the ICC.
Johan Galtung, the founder of the discipline of Peace and Conflict Studies, distinguishes between two kinds of peace — ‘negative peace’ and ‘positive peace’.
The negative type refers to an absence of violence. On the other hand, ‘positive peace’ is a process that furthers conflict resolution through accountability, justice, forgiveness, and restoration of relationships between conflicting groups and people.
The intra-Afghan dialogue may lead to ceasefire and absence of violence followed by a broad-based government in which each group will protect its self-interest. Accountability will not be a priority. This will bring only ‘negative peace’ to Afghanistan.
By undermining ICC efforts, the Trump administration is blocking the way to ‘positive peace’ in Afghanistan — the only kind of peace the Afghans deserve.
Published in The Express Tribune, August 23rd, 2020.
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