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Paper long abstract:

Afghanistan has been a war-torn country for the past forty years. Over this time, countless atrocities have been committed and the lives of thousands of innocents have been taken. For example, according to the most recent report by the UN Assistance Mission in Afghanistan (UNAMA), in 2018 alone 10,993 civilians were killed or injured in the country, the highest number of causalities since UNAMA started recording such numbers in 2007. Yet no one has been held accountable for the atrocities, neither in national nor in international courts, and an entrenched culture of impunity continues to flourish to the present day. This lack of accountability is particularly vexing given that Afghanistan has been a state party to the Rome Statute since 2003, and the International Criminal Court (ICC) has jurisdiction over crimes against humanity, war crimes, and genocide committed within the country after May 1, 2003.

The purpose of this paper is to critically examine the situation in Afghanistan after 2003 with regard to international crimes and preliminary ICC investigations, with a close eye on the latest efforts of the ICC and the government of Afghanistan. This paper argues that Afghanistan has not yet fulfilled its basic obligations under the Rome Statute to prosecute grave crimes and cooperate with the ICC; and the ICC has not duly accomplished its mandate in the country by exercising its jurisdiction and prosecuting pertinent crimes. Furthermore, this paper will deconstruct the recent Afghan government's argument against the applicability of the complementarity principle of the Rome Statute, and instead contend that the two-pronged test of unwillingness and inability on the part of the Afghan government has been met and thus ICC intervention is not only legally justified but mandated. The complementarity principle of the Rome Statute permits the ICC to exercise its jurisdiction over international crimes if state parties are not willing or able to investigate and prosecute such crimes. The author will utilize a doctrinal research to analyze the relevant primary sources of law including international conventions, domestic laws, and the ICC cases; and secondary sources of law including academic treatises, articles, commentaries, and agency reports.