ASP side event in the Hague, the Netherlands

Rights activists challenge ICC’s decision to deny investigation into Afghanistan situation

The Hague (Kabul Now) – The 18th Assembly of States Parties (ASP) side event was held today, Wednesday, December 04, in World Forum Convention Center in The Hague, The Netherlands. The ASP is a yearly week-long meeting composed of the member states who are signatories to the Rome Statute. ASP brings together the state parties as well as journalists, observers and human rights activists take part in the assembly. The side event was organized by Transitional Justice Coordination Group (TJCG), Justice International and the Kingdom of Norway.

Five panelists and a moderator took part in the discussion on peace and justice in Afghanistan. This event comes at a crucial time when the country is seeking to reach a political settlement with the Taliban, a movement that has been fighting against NATO and other international forces and the Afghan government for the last 18 years.

The politics of peace

The subject discussed in the 18th ASP side event was: Politics of peace; how ICC intervention impacts accountability in the countries that have failed to deliver it. Currently the United States (US) is negotiating “peace” with the Taliban, but the talks are missing any discussion of justice and accountability, and appear to be focused only on power-politics.

The two sides were about to reach a complex yet unpredictable “peace” deal in September of this year, when the US President Donald Trump halted it following a deadly Taliban-claimed attack on the Afghan capital that killed 11 civilians and one US soldier.  In his recent visit to Afghanistan on November 28, Mr. Trump, however, said that his administration had resumed talks with the Taliban.

Politicians say that Afghanistan is too volatile to speak of justice and that peace must be pursed even without a justice component. Afghan human rights activists, however, disagree. They are not happy with the unbalanced progress of peace talks, they say peace is not achievable in the absence of justice.

Despite repeated and long-awaiting calls by rights group and civilians to investigate war crime and crime against humanity, 12 April 2019, the ICC rejected the request, justifying that an investigation into the situation in Afghanistan at this stage will not serve the “interests of justice.”

Richard Bennett, a panelist who has served as a UN diplomat in Afghanistan, said situation in Afghanistan is very long way from peace. He noted that the US-Taliban peace talks began with grantees by the Taliban on not harboring the terrorists in return for US withdrawal but ended with mistrusts. “These talks were highly politicized,” he said, highlighting that, “the politics of peace is as dirty as any other politics.”  

“The politics of peace is as dirty as any other politics.”

Richard Bennett

Peace and justice dilemma

So far, the warring parties—the US, the Taliban and the Afghan government— have not been able to come up with concrete agendas on peace and justice. US Special Representative for Afghanistan Reconciliation Zalmay Khalilzad, though repeatedly said that peace with the Taliban would not necessarily sacrifice justice, but a prisoner swap between the US and Taliban showed quite the opposite. Under pressure by the US, the Afghan government released three high profile Taliban leaders including Anas Haqqani, a notorious Taliban operative who had been behind dozens of deadly attacks on civilians and public institutions. The Afghan government—led by President Ashraf Ghani— once announced that releasing Anas Haqqani was a “red line” for the government but as peace talks between the US and the Taliban resumed, it broke the very red line. The Afghan government has constantly stated that a cease fire should be a pre-condition to any talks with the Taliban, something the Taliban have refused to accept so far.

Sari Kouvo, another panelist who is co-director and co-founder of the Afghanistan Analysts Network, said the warring parties are politicking around peace talks but Afghanistan, though striving for peace, is far away from peace. Whatever is happening in high level of peace talks have very little impact on lives of the Afghan people, according to Ms. Sari.

ICC’s denial to investigation into Afghanistan situation

Conflict-stricken Afghanistan is suffering from a war that has destroyed almost the entire infrastructure of the country and left millions of the Afghans displaced and disabled. The country has seen high levels of civilian casualties in 2019, caused by the violence between the Taliban fighters and government forces. 

ICC’s rejection to an investigation into the situation in Afghanistan came while civilian causalities and violence have increased, something that is a high point of concern for rights group. 

Amal Nassar, a jurist who is working for the International Federation for Human Rights (FIDH) as Representative to the International Criminal Court (ICC), noted for the fist time the Pre-Trial Chamber of ICC used the term, interest of justice, to deny an investigation. “The decision is bizarre to many,” she pointed out.

Nasrina Bargzie, an Afghan-American attorney who practices law in the United States, was another panelist who questioned ICC’s decision. Ms. Bargzie, however, noted that the ICC is not the last resort and she called on the “humanity of Afghans to be acknowledged by the State Parties, and the world.”

Afghanistan signed the Rome Statute and become member of the State Parties in 2003. As per the Rome Statute, the country was obliged to ensure that war crimes, crimes against humanity, and genocide were addressed in the country.           

Horia Mosadiq, a member of TJCG and a human rights activist, pressed the State Parties to ensure the health and functioning of the court. She said that the Court mandate is not being met in relation to Afghanistan. “The Court is in an existential crisis. It is time for the State Parties to stand up in diplomatic circles and use every lever of power available to fight for victims and fight for the honorable mandate of this Court.”