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Florida Journal of International Law

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, one of 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 jurisdictions over crimes against humanity, war crimes, and genocide committed within the country after May 1, 2003. The purpose of this Article 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 Article 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 Article 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. Furthermore, this Article problematizes the recent decision and reasoning of the Pre-Trial Chamber to not allow the Prosecutor to proceed with an actual investigation in Afghanistan. Finally, the Article explores potential impacts of an ICC intervention and benefits of opening an actual investigation in the country.

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