Webinar (6): Afghanistan and ICC sanctions
The International United Nations Watch conducted a seminar moderated by spokesperson Maya Garner in collaboration with the Coalition for the International Criminal Court (CICC).
Panellists included
Ehsan Qaane, the Kabul-based Country Director of the Afghanistan Analysts Network (AAN), who is currently writing his thesis on the ICC and Afghanistan for his Masters in Law; Jennifer Trahan, Clinical Professor at New York University’s Centre for Global Affairs, where she directs the Concentration in International Law and Human Rights, as well as chairing the ICC Committee for the American Branch of the International Law Association, having recently served as an amicus curiae to the ICC on an appeal of the human rights situation in Afghanistan; and, Nasrina Bargzie, a member of the Afghanistan Transitional Justice Coordination Group, currently based in California, USA, who, as an Afghan-American attorney and Berkeley graduate, practices in the U.S. and abroad, working closely with Afghan civil society on human rights and governance.
Ehsan Qaane outlined the relationship between the Afghan government and the ICC dating back to 1989, noted how the country became an ICC member in 2003, and how this year of the saw the launch of an investigation into potential war crimes committed there from May 2003 to the present. He pointed out that the ICC mandate calls for an accounting of war crimes committed on Afghan territory, regardless of whether the crimes were committed by Afghanistan or by other nations. In 2017 and 2018, the ICC collected numerous statements submitted by Afghan victims and survivors in relation to alleged crimes but the prosecutor’s request to open an investigation was initially rejected in 2019, only for the decision to be subsequently reversed by the chambers.
In 2020, the investigation was authorized to proceed. Qaane said he considered the chance of bringing the alleged perpetrators to justice was “limited,” especially because of the involvement of an “international superpower”. He also noted that U.S. officials such as John Bolton and even President Trump himself had spoken out against the investigation. Jennifer Trahan spoke of how the U.S. relationship to the ICC had fluctuated, pointing out how the Clinton administration signed the Rome Statute in 2000 despite the Senate not having ratified it, and then, how the Bush administration “un-signed” the treaty. This was followed by the Obama administration’s reinstatement of the U.S. as an observer, which occurred before the Afghanistan investigation moved forward. In essence, U.S. support for the ICC had taken place on a case-by-case basis. Trahan said she was troubled by the current threats of sanctions against certain persons associated with the ICC. This amounted to a “singling out” of professional staff and suggested very broad provisions with implications for U.S. nationals rendering services to the ICC.
She allowed that the upcoming elections and a change in administration might-possibly reverse the executive order but held little hope that the U.S. would be helpful in any investigation involving U.S. nationals. She did hope that the “current threat level” would diminish. IUNW’s Garner drew attention to the larger trend of the current U.S. administration’s weakening of multilateral institutions and its increasing hostility toward UN bodies, citing such examples as the U.S. withdrawal from the UN Human Rights Council and the World Health Organization. Trahan concurred, noting “a consolidation of voices in opposition to the current U.S. position.” Pointing to the U.S. insistence that there can be “no jurisdiction” over its affairs because Washington is not a party to the ICC, Trehan reminded that the Rome Statute allows for the prosecution of persons of non-member states who commit war crimes in the territory of member states and that such is the case with regard to Afghanistan.
Nasrina Bargzie highlighted other transitional justice efforts and stated that “advocates working around the issue of ICC are well aware of the limited nature of what the ICC intervention will look like,” adding that advocates on the ground were working to inform Afghans of these limitations. She explained how understanding transitional justice models required a multifaceted approach. Bargzie emphasized that the preamble of the Rome Statute states its goal to ultimately combat impunity, and that the Office of the Prosecutor sees itself as seeking to ensure that the most serious crimes do not go unpunished. As such, Bargzie stated, Afghanistan is a case study for this commitment and approach, especially because of the prevailing violence and impunity. “This is what the ICC was created for,” Bargzie stated, citing recent attacks on civilians and civilian facilities, including those on maternity wards. “Afghanistan is bleeding,” she said, and it is the ICC’s role to address this.
