Toward Cooperation between Afghanistan and the International Criminal Court

Abstract

The Rome Statute requires State Parties to implement procedures to facilitate cooperation with the International Criminal Court (“ICC”); however, Afghanistan has not yet done so. This failure to implement the Rome Statute has inhibited the ICC’s ability to investigate and bring to justice potential criminal defendants like the Taliban and the Islamic State, warlords, and suspects among the government’s troops and police officers. This article recommends that Afghanistan move swiftly to incorporate a provision that facilitates this important relationship, establishing and regulating cooperation between Afghan law enforcement agencies and the ICC, especially with respect to ongoing inquiries. It begins by identifying some of the major atrocities that occurred over the past four decades in Afghanistan up until Afghanistan’s ratification of the Rome Statute in 2003. From there, it discusses the relevant provisions of the Rome Statute with respect to international cooperation. Next, it examines the current relevant rules and regulations in the laws of Afghanistan, including the Afghan Constitution, penal code, criminal procedure code, and law on the organization and the jurisdiction of the Afghanistan judiciary. The article then analyzes and explains the lack of coordination and cooperation mechanisms with the ICC within the laws of Afghanistan, identifying its consequences for investigating and prosecuting those international crimes that allegedly took place in Afghanistan after May 1, 2003. Finally, it concludes by presenting model legislation from the UK and Australia, using those examples to assist in devising similar legislation for the Afghanistan context, accounting for potential barriers to implementation and offering suggestions to gain support for this reform.

Keywords: Afghanistan, International Criminal Court, Cooperation, International Crimes