Afghanistan Joins the International
Criminal Court

On Feb. 10th, Afghanistan became the 89th state to ratify the statute creating the International Criminal Court. This important step ensures that future grievous human rights abuses committed in Afghanistan will not go unpunished.

Questions and Answers Regarding Afghanistan’s
Accession to the ICC

What possibilities exist for justice?

The Lawyers Committee for Human Rights welcomes the decision of the Afghan cabinet to become a party to the International Criminal Court (ICC), and the commitment to accountability that this important step demonstrates.

Establishing accountability for those responsible for committing war crimes and crimes against humanity in Afghanistan during the past 2 decades of war is essential if Afghanistan is to stop the cycle of violence that has plagued the country and prevent future atrocities.

Will the ICC have retro-active jurisdiction over crimes committed before Afghanistan joins the Court?

Under the Rome Statute, which governs the ICC, the Court has jurisdiction over crimes committed after July 1, 2002. For states that become party after July 1, 2024 (such as Afghanistan), the Court has jurisdiction over crimes committed after the date when the state formally becomes a party to the Court.

What about crimes committed between July 1, 2002 and the date Afghanistan becomes party to the Court?

The ICC has jurisdiction over these crimes if they are referred to the Court by the U.N. Security Council.

How are cases brought before the Court?

There are 3 ways for a case to come before the ICC:

1. Referral to the Court by another State Party
   
2. Initiative of the Prosecutor based upon information he has received
   
3. Referral to the Court by the U.N. Security Council

What signal does this action by Afghanistan send to the international community?

This action by the Afghan transitional government signals a desire to seriously address the question of accountability for the most egregious crimes of international concern. As the government begins to take concerted measures to disarm and demobilize warlord militias as a key part of the country’s reconstruction, the decision to join the ICC will send a strong message both to the warlords and to the people of Afghanistan affirming the seriousness of the government’s intent to consolidate the rule of law.

What will this action mean for the Afghan justice system?

The ICC is intended to be a court of last resort, and will only step in if a state party is unwilling or unable to try the case itself. When states join the court, they are expected to carry out legislative and institutional reform aimed at bringing their law into line with the standards included in the Rome Statute. In this way, joining the ICC can contribute to the nation-building efforts that are under way by helping to unify and strengthen the country’s institutional structures.

Joining the court will provide an opportunity for Afghanistan to reform its own criminal justice system so that the country will be better placed to effectively investigate and prosecute these types of crimes itself. This could become part of the judicial reform already being carried out under the auspices of the Judicial Commission established as one of the mechanisms under the Bonn Agreement.

How will Afghanistan’s joining the court affect the surrounding region?

Afghanistan’s accession to the Court is also to be welcomed because it could help to promote support for the ICC in a region where there are few states parties, and will serve to demonstrate that nations with Muslim majorities are compatible with a permanent international criminal legal regime.

What is the role of the U.S. and the international community in this process?

The Lawyers Committee urges the international community, including the U.S. and the E.U., to work together with the Afghan government and people to identify the best way to deal with accountability, and to assist Afghanistan in its efforts. In this context, we would urge the U.S. not to let its position on the ICC get in the way of this joint endeavor.

While welcoming Afghanistan’s decision to join the court, the Lawyers Committee is troubled by news indicating that the transitional government may have signed a bilateral agreement with the U.S. agreeing not to surrender U.S. nationals to the Court, a so-called “Article 98 Agreement”. The U.S. aims to reach such non-surrender agreements with as many states as possible, a move which the Lawyers Committee believes is contrary to the Rome Statute and international law, and seriously undermines the ICC, the cornerstone of the fledgling system of international justice. Clear affirmation of the principle that the same law applies to all is particularly key in the delicate context of post-conflict reconstruction in Afghanistan, which, until now, has suffered under a series of abusive governments.
(Click here to read the LCHR Statement on U.S. Attempts to Exempt its Nationals from the ICC)