International Justice

CJ354 Endicott College

Tag Archives: Afghanistan

The ICC begins to look away from Africa – towards the U.S.?

International Criminal Court to investigate war crimes in Afghanistan which could “expose U.S. personnel to international justice inquiry for the first time” Prosecutor Bensuda has stated that she plans to open the investigation sometime after the U.S. presidential election but before the end of the year. According to Foreign Policy – unnamed U.S. officials have already begin voicing their concern regarding this investigation. The ICC’s current scope of evidence is not sufficient enough to bring charges against U.S.

screen-shot-2016-11-02-at-10-14-19-am

ICC Prosecutor Bensuda

officials currently, although this may change. David Bosco of Foreign Policy argues that in order for the ICC to make the connection between war crimes in Afghanistan and  U.S. official culpability would be to link conflict in Afghanistan with U.S. detention policies. Most shockingly, the ICC would have to demonstrate that the U.S. justice system as proven ineffective in handling allegations of torture amongst its own citizens.

This comes at a particularly interesting time considering the mass exodus by African nations out of the ICC in response to feeling that they are specifically targeted while Western powers and other areas of the world go unchecked. While an investigation into Afghanistan and U.S. involvement might provide at least a demonstration of the court’s screen-shot-2016-11-02-at-10-15-07-amwillingness to look elsewhere aside from Africa, it will prove extremely difficult to garner cooperation from U.S. or Afghan officials. This is an inherent drawback of the court. If the court is truly prosecuting both sides of a conflict equally it will likely make many enemies, especially as it is still young and struggling to establish and hold on to its legitimacy.

http://foreignpolicy.com/2016/10/31/exclusive-international-criminal-court-poised-to-open-investigation-into-war-crimes-in-afghanistan/

 

The International Criminal Court: A Threat Against State Sovereignty

The International Criminal Court holds three different types of jurisdiction including national, territorial and United Nations Security Council referral. In a recent article titled A Crime Against Sovereignty it discusses the territorial jurisdiction held by the ICC in relation to the preliminary investigations being held in Palestine and Afghanistan. Both Afghanistan and Palestine have ratified the Rome statute therefore granting the ICC jurisdiction to crimes committed within their territories or by people from their territories. The Israeli officials have taken an adversarial stance to the ICC’s preliminary investigation being held in Palestine possibly due to the fear that they may be charged with war crimes and crimes against humanity.

Furthermore the ICC is also hosting preliminary investigations in Afghanistan which could result in American officials being held responsible for war crimes committed during both the Bush and Obama administrations. The United States has made it clear that the ICC has no authority to prosecute American or Israeli citizens since they have not ratified the Rome Statute. In addition to voicing their opposition to the ICC’s jurisdiction, the United States has also enacted the American Service Members’ Protection Act of 2002  which authorizes the president to use all means necessary to free US and allied military personnel and government officials detained by the ICC. In addition to that, this act also grants severe restrictions on US cooperation with the court. As discussed in the Bosco reading, the Bush administration was very opposed to joining a supranational court stating that “…it’s the right move, not to join a foreign court that could- where our people could be prosecuted.” However Bosco also discusses how US relations with the ICC have improved under the Obama administration. With that said however the United States still remains a non-signatory of the statute and the ICC still faces a large political obstacle if it decides to go after US past and current officials. I remain curious as to how far the ICC’s power will extend. As we have discussed in class, one of the main critiques of the court is that it is very reliable on states’ cooperation and without it the ICC has a very difficult time in achieving its justice goals. I remain hopeful that the United States will cooperate as much as it can with the court and look forward to the ICC’s next move regarding the situation in both Palestine and Afghanistan.

Is transitional justice a forgotten issue in Afghanistan?

It is a legitimate concern for Afghans who are preparing themselves for their country’s third presidential elections on April 5th, a little under three weeks from today, and which will hopefully mark the first peaceful transition of power in the country’s history. Despite this achievement, many voters are concerned and frustrated that issue of transitional justice for war crimes over the past three decades has been lacking from presidential debates. For some of the candidates, this is understandably a difficult subject to approach, since a number of them have difficult pasts with conflict and war crimes. In the face of new government, Afghans are worried that the same culture of impunity and lack of transitional justice will plague Afghanistan in the future.

Over President Karzai’s tenure, the government has been criticized for the little progress it has made in efforts to enact transitional justice. In 2002, President Karzai helped to established the Afghanistan Independent Human Rights Commission (AIHRC) was established to address war crimes that had been committed in the country prior to 2001. A national action plan recommended by the commission was launch by Karzai in 2006, but after the parliament enacted a general amnesty law in 2007, the action plan expired in March of 2009 despite having requested to be extended.

While the progress for transitional justice has been at a snail’s pace in Afghanistan, perhaps there still is hope. One example is the case of Vice presidential candidate, Rashid Dostum, who apologized publicly to the afghan people for his involvement in war crimes, seen by some as a political maneuver but by others as an encouragement for others to do the same and apologize on their own cognizance.

Transitional justice perhaps still has a place in Afghanistan, and after the election in a matter of week, we will have a better idea of how the country will move forward to address its past. However, the effort must be sensitive to what is both feasible and appropriate in light of limitations that the government has faced in the past.

The article can be found here: http://www.transconflict.com/2014/03/transitional-justice-forgotten-issue-afghanistan-173/

Afghanistan, Violence and Women

Afghanistan, Violence Against Women and Responsibility

A recent (pending) change in the law in Afghanistan means that victims of womens violence will be silenced, as will witnesses. Honour killings, forced marriages, sexual violence and human trafficking will all be extremely difficult to prove or prosecute given the full ban of testimony. As HRW states, “it would let batterers of women and girls off the hook”.

My question on this is twofold. The first is the ability of the ICC to hold Karzai responsible, or rather to what degree his administration is responsible. The change in law could lead to a large upswing in violence against women, particularly of the sexual kind. In conflict zones, as we have seen, sexual violence is very much under the mandate of the ICC. Indeed a change in legislation that actively prevents testimony, and thus the prosecution of ‘batterers of women’ is surely indication of a state’s unwillingness to prosecute such crimes, a central tenant of evaluating the ICC’s jurisdiction.

That the state has sponsored such legislation brings into question the conflict type that the ICC could involve itself with. Certainly sovereignty arguments apply strongly here-the ICC cannot, nor should it, go around prosecuting everything left, right and centre. Perhaps such a law is not an active crime against humanity-it is obviously distinct from a Ntaganda that orders troops to commit these atrocities. But that seems to leave the women of Afghanistan with little recourse. The second question is thus-if not the ICC then who? This seems to be a passive crime in that it prevents the justice system from acting on behalf of women. Yet if the judicial process fails its female population, do we need to rethink how to combat such crimes. Legislators must know the effect on women such a law would have, and yet they have chosen to pass it nonetheless.

The implications of such a case would be vast, clearly. The problem is that this seems to fall into a grey area, one that at least partly indicates an unwillingness and inability to prosecute crimes, but that does not look like the ‘active’ crimes against humanity that our brutal dictators commit. Where, then, is the space in international justice for something to happen for the women of Afghanistan? (Other than NGOs and governments put pressure on them, which generally seems the least and the most any international action could be).

Peace and Justice: The Case of Afghanistan

Afghanistan has been amid a peace and reconciliation process for the past couple of years. To ensure its effectiveness the military surge has been complemented by various peace councils and civilian reconciliation efforts like women’s councils and councils for business entrepreneurs in the region. In order to ensure a well-rounded resolution to the Afghan war, Pakistan and its high leaders must be involved since they have historically been a crucial part of both the conflict and the solution.

A couple of days ago, members of Afghanistan’s High Peace Council, led by chairman Salahuddin Rabbani, arrived on a three-day visit to Pakistan, and held crucial talks with political leaders, including Prime Minister Raja Pervaiz Ashraf and Foreign Minister Hina Rabbani Khar amidst fresh tensions over a cross-border shelling incident.

According to sources, the meeting discussion included the release of certain Afghan Taliban commanders currently in Pakistani custody and establishing a comprehensive framework to provide safe passage to certain Taliban members. The Afghan side is believed to have shared its ‘roadmap’ envisaging steps it intends to take and a list of demands for Pakistan to help broker a peace deal.

The demands include the release of key Afghan commanders, including Mullah Abdul Ghani Baradar, who, according to the Karzai administration, can play a crucial role in bringing insurgents to the negotiating table. Baradar is ranked second in influence only to Taliban leader Mullah Muhammad Omar.

The effort to ensure reconciliation on behalf of both Pakistani and Afghan leaders is commendable. However, how is it possible that they can even begin to think this is an effective solution when the brokering, negotiating, and actual effort of reconciliation is only happening in top levels? Not to mention, any negotiations that include the release of Taliban leaders – the very reason why Afghanistan is in its current state of ruins – will make the people of Afghanistan feel like reconciliation is merely a mask and an effort to cover up the return of warlords from the 80’s as opposed to real justice.

Leaders from the Taliban have systematically targeted ethnic groups, they’ve attacked entire villages, subverted thousands of women and children and yet they continue to have free reign in the country.

Any effort of Afghan reconciliation is completely undermined by their consideration of Taliban leaders and by the neglect of civil society in this process. Afghanistan’s new government should look into a truth commission for 2014 and the international community – namely the ICC – should consider actively investigating Mullah Fazel Mohammad Mazloom (who is the alleged Chief of Staff of the Taliban) and Mullah Dadullah (current senior military commander of the Taliban). These are the people who are most likely giving the orders for attack, providing weapons, and actively stunting the peace and reconciliation process in Afghanistan. Failure to begin an investigation in Afghanistan may tag the ICC as selectively choosing their cases. This is a good opportunity for the ICC to show that they do not cover only cases in Africa and will, in fact, go where the victims need them.

U.S. soldier’s testimony on Afghan rampage at odds with prosecution

A recent trial being conducted by the army is centered on a US soldier that went on a shooting rampage this past March and killed 16 villagers in the Kandahar province of Afghanistan. The US prosecutor is seeking the death penalty, but the trial has had recent trip ups with some of the prosecution’s witnesses have led to delays with the legal proceedings. While this is an example of a government holding its own military accountable, it is still a fact that this is one of the worst civilian slaughters blamed on an individual soldier since Vietnam.

While reading this article, I was struck how it is situations like this that the United States has argued they want to retain control over by not joining the ICC. In the effort to encourage discussion, I find myself wondering about the type of backlash that would be incurred if the United States were to find insufficient evidence and dismiss a case like this. If the US were a signatory nation, how likely would it be that there would be enough pressure from the international community to push for an abstaining vote from the US or repeated opposition?

To me, it seems like even in cases like this that the combination of the veto power of the US in the security council and the fact that the American legal system is so stable means that they would rarely, if ever, find themselves in a situation like that. That said, it is conceivable that this would turn many nations against the United States if a case like that were dismissed or if the defendant were found to be not guilty.

http://www.reuters.com/article/2012/11/07/us-usa-afghanistan-trial-idUSBRE8A60D720121107

Impunity Gap: Afghanistan

Transitional justice for Afghanistan has yet to be realized. Certainly, it is logical to suggest that justice for crimes committed during the Taliban regime and during the subsequent foreign intervention must wait until peace and stability have returned to Afghanistan. But this case exposes many key transitional justice dilemmas – on the tension between peace and justice, international (Western) and local cultures modes of justice, the question of amnesty and political inclusions for former Taliban.

Read the article by Kouvo and Mazoori on “Reconciliation, Justice, and Mobilization of War Victims in Afghanistan,” this Guardian article on amnesty for the Taliban and this follow up Wired article on results of the amnesty deal.   (These are all short articles.) Address one or more of the following questions based on what you read in these articles any any additional online research.

a) What types of atrocities in Afghanistan should be addressed by transitional justice mechanisms? Should transitional justice only address crimes of the Taliban?

b) What are victims demanding in terms of justice and reconciliation? How have they mobilized?

c) The amnesty deal for Taliban is very controversial. What are the arguments for and against giving them to the Taliban? What conditions and limits should be included with this amnesty?

d) What, if any proposals, have come from the United Nations on justice in Afghanistan?

d) What cultural mechanisms of dispute resolution mechanisms can be modified for transitional justice?

e) Is this a peace vs. justice dilemma? Should justice wait until the country has stabilized? Or can justice be used to end the insurgency?

(Please provide links to any information you use in our online research.)

U.S. pays ‘blood money’ to victims of Afghan massacre

So I’m sure you guys all heard of the shooting that happened in Afghanistan by an American solider a little over a week ago. The shooting killed 16 people including 9 children, 3 women, and 4 men. News broke out today that the U.S. is paying “blood money” to the victims of the massacre. The American official who delivered the money to the families said the money isn’t a compensation but an offering from the U.S government to help the victims and their families. The victims families/villagers got $50,000 for each of the people that dead and $11,000 for each of the people who were wounded. The U.S solider identified as Staff Sgt. Robert Bales is charged with 17 counts of premeditated murder and other crimes, if convicted he could face the death penalty. The Afghan community is insisting that Bales be returned to Afghanistan to face trial, questioning the U.S. military’s account of what happened. What do you guys think about this whole thing?

http://www.cnn.com/2012/03/25/world/asia/afghanistan-killings-money/index.html?hpt=hp_t1

http://www.washingtonpost.com/world/us-pays-blood-money-to-victims-of-afghan-massacre/2012/03/25/gIQARfIaZS_story.html

http://www.usatoday.com/news/nation/story/2012-03-25/afghanistan-shooting-compensation/53765298/1?csp=34news

http://www.huffingtonpost.com/2012/03/25/afghanistan-shooting-victims-us-paid-compensation_n_1377950.html