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2012 | Nasir Khan - Afghanistan War Crimes: Government, ICC and NGOs

In 2012, Afghanistan had experienced over 33 years of war, beginning with the Soviet invasion in 1978. This article looks into past and present war crimes in Afghanistan, the ability and willingness of the Afghan government to prosecute criminals, and the role of the international community and Non-governmental Organizations (NGOs) in ensuring accountability. It is argued that there are no positive signs that the Afghan government is willing or able to prosecute war criminals. Its inability and unwillingness to take actions against those responsible for the gravest crimes opens the possibility of prosecution by the International Criminal Court (ICC). However, since the Court has prospective jurisdiction only on crimes committed after the Rome Statute entered into force in Afghanistan (2003), and solely focuses on those most responsible for war crimes, the expectation of ending impunity will not be fulfilled unless domestic accountability mechanisms are  activated and strengthened. 

Since 2009, the Office of the Prosecutor of the ICC has opened a preliminary examination into the situation in Afghanistan. NGOs can play an important role in furthering the aims of the ICC in Afghanistan by (i) persuading governments to cooperate with the Court, (ii) assisting with the collection of information on the ground, (iii) preserving evidence, (iv) pressuring the Afghan government into taking steps to reform the national justice system, and (v) educating people about their rights and the judicial mechanisms available for seeking redress. Additionally, if war crimes are not prosecuted in Afghanistan, NGOs can call on other countries to invoke universal jurisdiction and demand justice for the victims. Nevertheless, the article concludes that high expectations of ending impunity should not be attached solely to local NGOs, who experience severe financial and operational limitations because of the ongoing conflict. To uphold the rule of law there must be close coordination between local and international civil society in order to keep the issue of justice alive.