Maryam Jami argues that while faced with the jurisdictional predicament of the Taliban’s amnesty declaration under the Rome Statute, the International Criminal Court should be empowered to intervene to address the Taliban’s ongoing extrajudicial punishment based on the doctrine of ‘international concern’.
Introduction
The Taliban took control of Afghanistan 15 August 2021 after an unexpectedly quick win over Afghan security forces. Following the establishment of the Islamic Emirate of Afghanistan (IEA), the Taliban pledged a general amnesty on August 17 to anyone connected to the former Afghan government and security sector, and those who have worked with the international/coalition forces. They also called upon former government employees and public servants to return to their jobs.
However, despite the Taliban’s promise of protection for people associated to the foreign troops and the previous Afghan administration, extrajudicial murders and abductions are purportedly being carried out in Afghanistan. United Nations officials reveal that they have received credible evidence that more than 100 members of the former Afghan government, its security personnel, and others who collaborated with international forces had been killed since the Taliban’s takeover, and that at least 72 of these killings were attributed to the Taliban, themselves.
While Abdul Qahar Balkhi, Spokesperson for the IEA Foreign Ministry denied such allegations, two new videos went viral on March 15 showing Taliban shooting at affiliates of the former Afghan security sector in the Panjshir and Baghlan provinces. This trend of unlawful trials and punishment by the IEA carries on while the country’s formal judicial system is paralysed and the Taliban have officially closed the Independent Bar Association, detaining its lawyers, attorneys, and other staff. They have also stripped the Constitution of the Republic (2004) and other national laws of their effect, thereby leading the country into a state of lawlessness. In light of this, international tribunals are now being hailed as the sole legitimate avenue which can approach and comment on the Taliban’s ongoing reprisal killings and detentions. The International Criminal Court (ICC) is the relevant international body which is responsible for resolving the cases of war crimes, human rights abuses, extrajudicial killings and detentions, and crimes against humanity. Nevertheless, the United Nations Rome Statute of the International Criminal Court (the Rome Statute) makes no direct reference to the national amnesties declared by governments or domestic jurisdictions. That is why, one of the most contentious and practically significant problems since the ICC’s establishment has been whether the ICC should admit an amnesty issued by a national government while investigating a State emerging from internal wars or conflicts. This lack of discussion and reference on the subject in turn encourages governments to seek self-impunity by declaring amnesties, which they may readily obtain. Not only that, but governments now have the ability and capacity to violate the human rights of their political opponents under the guise of amnesties—which I hereinafter refer to as the ‘strategic violation of human rights’.
Governments’ Manipulation of the National Amnesties
The Black’s Law Dictionary defines amnesty as ‘an act of amnesia and oblivion under the jurisdiction of national authorities’. While the fundamental goal of amnesties has always been to end civil wars and establish conditions conducive to reconciliation, current practice of granting amnesties occasionally reflects other goals. The contemporary implementation of national amnesties by governments have sometimes led to, or even have been aimed at, the violation of international human rights and protection of the violators against international prosecution. The outbreak of amnesties in Latin America in the 1900s reveals such a pattern of misusing the national amnesties for the mentioned purposes. For example, in an effort to move on from the dictatorship, the Uruguayan legislature passed the Expiry Law in 1986, which granted amnesty to many military and police members who had committed human rights atrocities during the dictatorship.
While obliged by its Statute to abstain from intervening in cases of national amnesty, the ICC soon discovered that the amnesty patterns of the 1900s were not aimed at consolidating peace and ending a period of civil war, as national amnesties are supposed to. Rather, they were declared by the incumbent governments to seek impunity from international prosecution and in some cases to strategically punish their opponents. Therefore, there was a room created for the ICC to intervene in such cases based on the general notion of ‘international concern’ or international responsibility for human rights, as other courts (e.g., the Inter-American Court of Human Rights, which is discussed below) and human rights groups did the same. This notion constitutes an obligation for the ICC and other international legal channels to actively defend and protect international human rights, and imposes restrictions on domestic governments that use amnesties to violate international human rights. This view is also supported by some other international law conventions. For instance, a State must not rely on its national law to violate international treaty obligations, according to Article 27 of the Vienna Convention on the Law of Treaties. Although, in the case of the Taliban, there is no formal legislation governing the amnesty that currently violates the international human rights, the IEA’s ‘declaration’ has still constituted an obligation on it to protect international human rights under the amnesty. The amnesty indicates that the addressees of the declaration will not face a criminal trial or punishment in the domestic realm, thereby pointing to a ‘promise’ by the IEA assuring the international tribunals that the offense is no longer prosecutable neither under domestic jurisdiction nor international ones, and the subjects will no longer be threatened by a prospective trial or punishment.
Despite affirming that the manipulation of amnesties by the governments and heads of State to gain impunity from prosecution has grown pervasive over recent decades, I argue that governments do not always misuse amnesties to obtain impunity and shield themselves against prosecution, but they also do so to strategically violate the human rights of activists, and their critics and opponents – those who either currently oppose their rule, or have fought them during previous civil wars and armed conflicts. The governments’ tendency to do so is clearly charted in the case of Velasquez Rodriguez v Honduras (1986). In this case, the Inter-American Court of Human Rights found that the Honduran military had violated international human rights by arresting, torturing, and killing of a student activist who was apparently protected under an amnesty law. The student was a follower and promoter of the opposition party, which comprised of political rivals and critics of the Honduran government. This tendency is now being revived in the case of Taliban. The IEA initially declared amnesty to reassure Afghans and the international community, and represented that the Taliban would no longer relegate to unlawful detentions and extrajudicial killings. However, current evidence reveals that the IEA, as a government, is using the amnesty and the public trust to strategically violate the human rights of its erstwhile adversaries.
The Rome Statute and the Taliban’s Amnesty
This amnesty has been a clever way for the Taliban to punish their opponents covertly and strategically while legally keeping the ICC out of the circle. In fact, some provisions of the Rome Statute have enabled the Taliban to use amnesties as a safe and reliable means of violating human rights, since national amnesties are the only areas in which the ICC has indirectly decided not to intervene. Article 17 of the Statute provides that the ICC would not intervene in a case if it is being investigated, has been investigated, or is concluded by the State which has jurisdiction over it. There is only one exception to this rule, and this is when a State is ‘unwilling or unable to carry out the investigation or prosecution’. As per the Statute, the factors for determining a State’s ‘unwillingness’ include whether: the State is pursuing self-impunity through the prosecution; the procedures are delayed; and, the processes are not conducted impartially. In March 2020, considering the Republic of Afghanistan’s inability to bring the perpetrators of war crimes to justice, an inquiry into alleged war crimes and crimes against humanity in Afghanistan had been authorised by the ICC. However, the Republic soon requested the ICC to defer such investigations to its domestic channels, while later there were no investigations proceeded by the Republic, showing that it was either unwilling or unable to do so. This tendency in turn made the ICC theoretically and practically authorised to proceed with investigations, yet it did not do so. The inability and unwillingness to conduct prosecutions has further transpired into the Taliban’s regime, as they directly declared amnesty without even proceeding with the investigations. Nevertheless, what keeps the Taliban away from the ICC’s radar is that, unlike the Republic, they actually did something regarding the investigations by declaring the amnesty, showing that the respective offense is no longer prosecutable. As is evident, in the Taliban’s case, the amnesty is not declared for obtaining self-impunity, rather it is declared in regard to the former oppositions of the IEA, not its own members or officials. Secondly, there was no delay in the decision. The amnesty was proclaimed only two days after the takeover. Finally, no proceedings were actually conducted before the declaration of the amnesty. Therefore, one cannot comment on whether the proceedings were impartial or not. Also, in order to be determined as ‘unable’ to prosecute a case, the Statute establishes that a State should be unable to obtain ‘the necessary evidence for the prosecution’. Again, as there were no proceedings conducted before the declaration of the amnesty by the Taliban, it is also of no effect to decide whether or not the IEA was unable to obtain evidence for the prosecution.
Concluding Remarks: The ICC’s International Responsibility for Human Rights
As charted above, the provisions of Article 17 do not grant to the ICC the authority to intervene in the case of Taliban’s amnesty under any of the mentioned exceptional conditions, thereby practically enabling the Taliban to perform extrajudicial punishment under the veil of the national amnesty. While in this case, the ICC cannot intervene due to its mandate under the Rome Statute, I argue that it should be able to intervene under the concept of ‘international concern’, just as it did in the 1900s. Having said that, the Rome Statue does not pledge the ICC to take measures to protect international human rights under the notion of international concern. Although in 2011, Dr. Hans-Peter Kaul, former Second Vice-President of the ICC, emphasized in a speech about ICC and human rights that ‘the ICC is a permanent judicial institution that was set up to end impunity for the most serious crimes of international concern’. The crimes that provoke international concern and fall within the jurisdiction of the ICC are generally listed in Article 5 of the Rome Statute as ‘(a) the crime of genocide, (b) crimes against humanity, (c) war crimes, and (d) the crime of aggression. However, it is a non-exhaustive list and practically authorizes the ICC to explore different patterns of these crimes down the line. This is where the practical mission of the ICC starts—the mission which should sometimes go behind the borders of the Rome Statute, especially in cases where the crimes of international concern are perpetrated in a manner that impliedly grants to the perpetrators impunity under the Rome Statute. As witnessed in the case of Taliban, amnesties continue to provide fertile ground for the emergence of new forms of human rights violation. The ICC, in response, should be alert not to allow its Statute and mandate to prevent it from practically and actively exploring these emerging patterns of human rights violation, as well as from intervening in such cases. Neither should the ICC ignore its international responsibility for human rights.
Maryam Jami is a Researcher at the Institute of War and Peace Studies (IWPS) and Senior Editor at South Asian Journal of International Law and the International Review of Human Rights Law.