A legal Assessment, against the study of war crimes in Afghanistan

Unfortunately there was a war in Afghanistan since the past three decades and has not only been able to eradicate the country’s material and spiritual assets, but also both side of conflict-related they have done acts which was against of the human rights, Islamic Sharia , Humanitarian international law and the international criminal court and against humanity charter, recently the international criminal court ( Fatou bensouda) Has asked the International Criminal Court to explain about the prevention of investigating the war crimes by US forces in Afghanistan because the prosecutor had previously asked the international criminal court that the war crimes committed by US forces in Afghanistan Should be looked into and make fair decisions about international criminal justice.

What are wars crimes? Crimes which have been done by the Americans in Afghanistan, what is the authority and responsibility of international court for the investigation of these crimes?  And what’s the position of America, So all these questions have been answered in this weekly analysis.

What crimes are war crimes?

According to the United Nations Charter, the war crimes are as follow:

  1. Any act that is against peace.
  2. Cruelty on civilian of the any nation and tribes.
  3. Mass killings, people’s mobilization, keeping huge number of people forcefully in prison and in other places.

As per article eight of the International Criminal court, war crimes are as follow:

  1. Damage of goods that are not used for military needs.
  2. Miss-Behavior with prisoners of war and those individuals who have surrendered themselves and forcefully enrolling in war lines.
  3. Attack on cities, villages and on other places which is not belong to military.
  4. Usage of those weapons and guns which have much side effects.
  5. Sexual abuse.
  6. Violence on human beings, especially killing, ruthless torture and so on.

The crimes committed by the Americans in Afghanistan

Since 2001, Americans began their military presence in Afghanistan, since that time they have used and tested their military equipment and weapons in Afghanistan, and even now they use the same in Afghanistan. They have used weapons and bombs on weddings, funeral, mosques, hospitals, villages and towns and the use of such weapons was prohibited by the international community, for instance, the mother of all bombs are used by Americans in the Achin district of Nangarhar province, And also the same have been welcomed by the national unity government.

Also, usage of Daisy cutter, Cruse, AGM missile and the GM-13 In eastern parts of Nangarhar province, Marja of Helmand, In Maiwand of Kandahar, and in other areas of Kandahar, and still they use.

Up to what kinds of crimes? The international criminal court have access to investigate it:

The International Criminal Court was established in Italy in 1998, at that time, the 160-member delegates attended the meeting of establishment. Now more than 160 countries are active member.

Afghanistan is also included in the member states of the international criminal court and Afghanistan has signed a constitutional amendment in 10th of April 2003, at that time Afghanistan didn’t have parliament so without approval of the parliament, it has been accepted as a valid and has received membership.

The International Criminal Court describes four types of crimes under the authority of the court in the fifth article of the Constitution, as follows:

  1. Crimes of Killing Generation
  2. Crime against humanity
  3. war crimes
  4. violation Crime

Other than all criminal cases, the above all crimes are defined in the basis of the International Criminal Court, the above criminal crimes are the war crimes that govern by the International Criminal Court in accordance with Article 5 of this kind of crime. And can punish the perpetrators.

Are the decisions of International Criminal Court can be implemented upon America?

As per the provisions of the Constitution of international criminal court the states are divided into three types across the world:

First: Those countries who have signed the Constitution and have also approved in their country’s parliament. These countries have received a membership of the court and are considered to be the full members of the court that the number of countries reaches 120 countries and they are considered to be fully under the law of the constitution.

Second: Those countries that have not yet signed the Constitution and have not approved it. These countries do not have absolute obligation on the basis of the constitution and they are not applicable to the constitutional order. Only in one case the provisions of court can be applicable on them, if they request in a particular case of voluntary part of the implementation of Charter provisions would then only the provision may implement upon them.

Third: Those countries which they have signed but haven’t approved the constitution, These countries do not have any obligation against the principals as well This also for completing a stage for approval of the draft, for the activation as their position is not clear, if they have a membership and are not obliged to stand before the standpoint, which do not perform anti-general practices or actions of the constitution. However, when the status of these countries is clear, it will not be empty from two conditions.

Regardless they will give up on membership, Or the draft will not be approved in their parliament, then in such cases they are free from the vary same in future and they are in list of non-member countries.

If they approve the constitution then they are considered as a member country and all rules and regulations can be implemented upon them.

The United States has not approved the Constitutional Criminal Court in parliament, but has just signed the same and even last year they rejected the membership of the court and due to the same act United states is not a member of the International Criminal Court, that is why the order of the court is not applicable on them. It is worth mentioning that the United States was the first country that was against the establishment of the criminal court and the reason was that it is in conflict with our national sovereignty. It is true that the Criminal Court orders can’t be implemented in this country, if they conduct a crime in a member of the World Criminal Court in any of the member country, then in two cases the court can punish these crimes. First if the member country complains to the court and second if the prosecutors refer the case to the court. As Afghanistan is a Full member country of the court, they have not complained to the International Criminal Court about the crimes of US troops, but recently ( Fatou bensouda) demanded that war crimes of US troops must be investigated in Afghanistan, Unfortunately the same is not followed by the court. There are many reasons for not following but here we have taken some reasons as per opinion of Alex Whiting:

  1. The American political influence and the impact on International Criminal Court.
  2. Imposing pressure on the Afghan government to do not cooperate with the International Criminal Court in this study and oppose these investigations.
  3. Challenged by the US President Donald Trump that if they continue to pursue the investigation, then US will stop financial facilities.
  4. Threat by the US government, if continuing to investigate, then they will sanctions on judges and will not provide the Visa to them.[1]

The final word

Investigation of war crimes, as the White House seriously opposed the investigation it appears that US troops have done widespread war crimes in Afghanistan and the country fear that if these crimes be investigated so they will have defamed And the soldiers will be apprehended to the trial table, therefore, they are trying to impose the pressure on this court, to don’t investigate, and it is still successful.

The world must listen to the people of Afghanistan, the crimes should be investigated and also, they need to encourage and support the Court of International Justice for investigation. This is also in a position where the Afghan war is ending, and probably American after an agreement with the Taliban, may leave Afghanistan completely. Demand of justice, must be implemented, before the withdrawal of US troops from Afghanistan.

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