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Afghanistan’s ICC Efforts: A Comprehensive Look at Recent Developments and Historical Context

Source: Premium Times

On 5 March 2020, the Appeals Chamber of the International Criminal Court decided unanimously to authorize 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.

 

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 authorization 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.

 

The Appeals Chamber found that the Prosecutor is authorized 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.

 

On 15 April 2020, the Prosecution notified the Chamber of the Government of Afghanistan’s request of 26 March 2020 seeking a deferral, pursuant to article 18(2) of the Rome Statute of the Prosecution’s investigation into the Afghanistan Situation. On 27 September 2021, the Prosecution requested authorization to resume its investigation under article 18(2) of the Rome Statute. On 31 October 2022, Pre-Trial Chamber II of the International Criminal Court (ICC) authorized the Prosecution to resume investigation into the Afghanistan Situation. The judges considered that Afghanistan is not presently carrying out genuine investigations in a manner that would justify a deferral of the Court’s investigations and that Afghanistan authorities are not showing an interest to pursue the deferral request it submitted on 26 March 2020. On 4 April 2023, the Appeals Chamber issued its Judgment on the Prosecutor’s appeal amending the Pre-Trial Chamber II’s decision to align with the scope of the Prosecutor’s investigation in the Afghanistan situation as previously determined by the Appeals Chamber.

 

Background

 

On 20 November 2017, the Prosecutor had requested authorization from Pre-Trial Judges to initiate an investigation into alleged war crimes and crimes against humanity in relation to the armed conflict in the Islamic Republic of Afghanistan since 1 May 2003, as well as regarding similar crimes related to the armed conflict in Afghanistan allegedly committed in the territory of other States Parties to the Rome Statute since 1 July 2002.

 

Between 7 December 2017 and 9 February 2018, the ICC Victims Participation and Reparations Section (“VPRS”) transmitted to the Pre-Trial Chamber a total number of 699 victims representations. On 20 February 2018, the VPRS transmitted to the Judges a final consolidated report on victims’ representations, containing an overview of the victim representations process, as well as details and statistics of the transmitted representations. Information for victims, including those who submitted representations, and for their representatives, as well as information regarding any potential judicial developments, will be posted on ICC website. 

 

Jurisdiction – General status

 

Afghanistan deposited its instrument of accession to the Rome Statute on 10 February 2003. The ICC may therefore exercise its jurisdiction over crimes listed in the Rome Statute committed on the territory of Afghanistan or by its nationals from 1 May 2003 onwards.

 

Procedural history and focus of the preliminary examination

 

The preliminary examination of the situation in Afghanistan was made public in 2007. The OTP has received numerous communications under article 15 of the Rome Statute related to this situation. The preliminary examination focusses on crimes listed in the Rome Statute allegedly committed in the context of the armed conflict between pro-Government forces and anti-Government forces, including the crimes against humanity of murder, and imprisonment or other severe deprivation of physical liberty; and the war crimes of murder; cruel treatment; outrages upon personal dignity; the passing of sentences and carrying out of executions without proper judicial authority; intentional attacks against civilians, civilian objects and humanitarian assistance missions; and treacherously killing or wounding an enemy combatant. The preliminary examination also focusses on the existence and genuineness of national proceedings in relation to these crimes.


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