The International Criminal Court’s Afghan Dilemma: Complementarity and the Quest for Justice in Afghanistan

62 Pages Posted: 6 Apr 2021 Last revised: 7 Mar 2022

Date Written: March 2, 2022

Abstract

The principle of complementarity is a cornerstone of the International Criminal Court’s (ICC) framework. Enshrined in Article 17 of the Rome Statute, the doctrine balances the overarching precept of ending impunity for atrocity crimes against the primacy of national criminal jurisdictions. Under the complementarity regime, the ICC may only assert jurisdiction when a state fails to act, including when its legal system is unwilling or unable to genuinely carry out proceedings.

Shortly after the Appeals Chamber of the ICC authorized an investigation in March 2020 of alleged war crimes and crimes against humanity in Afghanistan, the government of Afghanistan requested that the ICC’s Office of the Prosecutor (OTP) defer to its domestic proceedings. This Article argues that, contrary to Afghanistan’s contention, potential cases arising from the OTP’s investigation would be admissible before the ICC. Afghanistan has consistently neglected its responsibility to bring perpetrators of international crimes to justice. The recent ascendance of the Taliban into power is unlikely to change this status quo.

The complementarity analysis reveals that, besides the likely absence of proceedings against individuals who bear the greatest responsibility for the alleged crimes, authorities in the Afghan legal system remain unwilling and unable to genuinely carry out the requisite investigations and prosecutions. The state’s unwillingness and inability to conduct genuine proceedings are evinced through the Taliban’s return to power, the flawed Afghan peace process, the amnesty framework, and an array of other factors pertinent to the issue of admissibility. Considering the deeply ineffective domestic accountability mechanism, the ICC must step in and ensure that impunity is no longer guaranteed in Afghanistan.

Keywords: International Law, International Criminal Law, International Criminal Court, ICC, Rome Statute, Complementarity, War Crimes, Crimes Against Humanity, Comparative Law, Afghanistan, Afghan Law, Afghan War, Taliban, Human Rights

Suggested Citation

Hakimi, Mehdi J., The International Criminal Court’s Afghan Dilemma: Complementarity and the Quest for Justice in Afghanistan (March 2, 2022). Columbia Journal of Transnational Law, Vol. 60, No. 2 (2022), Available at SSRN: https://ssrn.com/abstract=3819180

Mehdi J. Hakimi (Contact Author)

Stanford Law School

559 Nathan Abbott Way
Stanford, CA 94305
United States

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