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Potential War Crime And Violation Of International Humanitarian Law In Afghanistan

War crimes are identified with violations of the law of war at the time of arm conflict. It is an extensive conception and if any harm is caused to mankind during peacetime, it is regarded as a war crime. Any kind of infringement of human rights falls under war crimes. The suffering of Afghans was ignored by the world for a couple of decades but what is not acceptable is Afghanistan's government is doing the same. Afghanistan does not have any substantial law on genocide. War crimes in Afghanistan included acts such as abuse of civilians or prisoners of war. It is important to deal with the problem of genocide and related violence. Hence, war crimes in Afghanistan are violations of international humanitarian laws incurring individual criminal responsibility and must be adequately investigated.

Introduction
A war crime is a demonstration that comprises a serious infringement of the laws of war that leads to individual criminal responsibility.[2] Instances of crimes incorporate purposefully killing prisoners or civilians, destroying civilian property, torturing, taking hostages, performing perfidy, raping, assaulting, using child soldiers, and abusing the principles of differentiation, proportionality, and military necessity.[3]

The war crime concept arose at the beginning of the 20th century when the body of assemblage of applicable international law to warfare between sovereign states was classified. At the national level, this classification was done considering the publication of the Lieber Code in the United States. During the Hague Conventions of 1899 and 1907, the codification was done at the international level. The law was clarified through trials that happened during this period in national courts.[4]

Significant law advancements happened by the end of World War II as trials of Axis war criminals helped in setting up the Nuremberg principles.[5] In addition, new war crimes were defined and it was stated that the universal jurisdiction could be exercised over such crimes under the Geneva Conventions in 1949. After establishing various international courts in the late 20th century and early 21st century, the definition of added categories of war crimes appropriate to armed conflicts in civil wars was provided.[6]

Infringements of International Humanitarian Law that acquire entity criminal liability under International law are considered war crimes.[7] Even if a superior officer orders a war crime during the war, an individual cannot commit a war crime in any case.[8] In this case, the individual cannot take the defense that the same was committed because of the order of the seniors. It is heinous to commit these crimes as they include rape, torture annihilating property, the purposeful killing of prisoners of war and innocent civilians, not providing fundamental items for the endurance of taking hostages, captured people, etc. [9]

International humanitarian laws classified war crimes under it where on May 1, 2003, Afghanistan acceded to the Rome Statute. Afghanistan established the jurisdiction of the court over crimes against humanity and war crimes which should be investigated when occurred. Under the Statute, there is no exemption; the perpetrators must be arraigned by the International Criminal Court (ICC) or an Afghan national court.[10] Under the Rome Statute of the International Criminal Court, Article 8(2) defines war crime as a gross infringement of international humanitarian laws.[11]

The UN Secretary-General is keen on highlighting the need to restore peace in an integrated manner by committing to the UN human rights system.[12] The states party to Geneva treaties should respect the Conventions in all circumstances.[13] This also places an obligation on the states to act in cooperation and compliance with the UN and its charter during events of the genocide and related violence.[14] The role of the International Committee of the Red Cross (ICRC) is recognized under the International Red Cross and Red Crescent Movement and those states who are party to Geneva Conventions and states that ICRC should undertake the tasks which ensure faithful application of international humanitarian law concerning armed conflicts.[15] Hence, necessary legislation should be enacted by states to avoid any breach of the law and maintain peace.[16]

Background of the War Crime Law
Peter von Hagenbach's trial in 1474 by an ad hoc tribunal of the Holy Roman Empire was reportedly the first "international" war crimes trial (Edoardo Greppi, 1999 Linda Grant, 2006).[17],[18] He argued that he "just followed orders".[19] However, for his crimes, he was convicted and beheaded stating that "he possessed a duty to prevent as he was a deemed knight". A Confederate States Army officer, Henry Wirz was held responsible in 1865 by a military tribunal and hanged at Andersonville Prison, where many Union detainees of war died during the American Civil War (the United States, 1867-1868).[20]

At the end of the 19th century, the concept of war crimes further grew and during the beginning of the 20th century, the law of armed conflict or international humanitarian law was codified.[21] The Hague Conventions embraced in 1899 and 1907 aim on the proscription of parties to war to utilize certain methods and strategies of warfare.[22],[23] Many related treaties have been embraced from that point forward. Conversely, the Geneva Convention of 1864[24] and subsequent Geneva Conventions, notably the four 1949 Geneva Conventions and the two 1977 Additional Protocols[25], aim at the fortification of persons who are not taking any part in hostilities. Various violations of its norms have been identified by Hague Law and Geneva Law but not all can be classified as war crimes. International law mustn't codify all war crimes in one single document. Treaties of international humanitarian law, international customary law, and international criminal law possess lists of war crimes.[26]

War Crimes in Afghanistan -Background of Afghan War
Afghanistan War is a global conflict that began in 2001 triggered further by the September 11 attacks. It is comprised of three phases. The primary stageŚ overturning the Taliban (the traditionalist political and religious group that controlled Afghanistan and provided a haven for al-Qaeda, the culprits of the attacks of September 11) lasted for only two months. From 2002 until 2008, the subsequent stage began which was marked by a strategy of the U.S. to defeat the Taliban using military power and reconstructing core reconstructing in the country. In 2008, the third stage which was a turn to exemplary counterinsurgency convention began and accelerated in 2009 with the decision of the then U.S. President Barack Obama to augment the presence of U.S. troops in Afghanistan temporarily.[27]

To implement this strategy, a larger force was deployed to protect and safeguard the citizens from inhuman attacks from the Taliban and support endeavors to reintegrate rebellions into Afghanistan.[28] The strategy, beginning in 2011, came combined with a schedule for the withdrawal of the foreign forces from Afghanistan where the security responsibilities would be steadily surrendered to the Afghan police and military.[29] The new methodology largely failed to accomplish its target. Extremist attacks and civilian casualties remained tenaciously high, while a significant number of the Afghan military and police units assuming control over security duties were barely prepared to hold off the Taliban.[30] In December 2014, when the combat mission of the U.S. and NATO formally ended, this became one of the longest wars ever fought by the United States making it a 13-year long one.[31]

Since 2001 when the war began in Afghanistan, the civilian toll was terrible which was recorded regularly by the country itself and international human rights organizations. The UN annually documented the number of deaths after 2009.[32] A large portion of the casualties credited to the Afghan government and its partners have been regarded as accidental "collateral damage", especially because of US air strikes. Claims have arisen, notwithstanding, of killings and abuse by powers on the government side that may be accounted as war crimes.[33] Fundamental investigations began by the International Criminal Court in 2006 and one of the parties involved formally confirmed the claims for the first time: The recently delivered report by the Australian military found "credible information" that its Special Forces in Afghanistan have unlawfully killed 39 civilians and detainees and cruelly treated two persons.[34],[35]

War Crimes in Afghanistan caused by Civil War
 
Armed Conflict Perpetrator
Incident Date Type of Crime Persons Responsible
Bagram torment and prisoner mistreatment December 2002 War crimes (Death of prisoners) The United States Armed Forces
Kandahar massacre 11 March 2012 Murder and wounding of civilians The United States Armed Forces
Maywand District murders June 2009 - June 2010 Murder of at least 3 Afghans The United States Armed Forces
Brereton Report crimes 2007-2013 Murder of multiple prisoners of war Australian Special Air Service Regiment
2011 Helmand Province incident 15 September 2011 Murder of an injured prisoner British Royal Marines
Source: BBC News, Compiled by the Researcher

Investigation of Australian Special forces for war crimes in Afghanistan
The report which is the aftereffect of a four-year examination by the Inspector-General of the Australian Defence Force (IGADF) is important as it shows an interest in serving justice. The possible dangers of Special Forces functioning in counter-terrorism and counter-insurgency context are well portrayed.[36] The report highlights the fact that military authority should be committed to considering its members accountable if a serious investigation has to occur.[37]

The vast majority of the war crimes occurred in 2009-11, toward the start of the US "surge" approved by President Barack Obama. Casualties were maximum along with severe violence. Under US general David Petraeus, the global forces under the ISAF order embraced an 'enemy-centric' approach named the "kill-or-capture" strategy.[38] These were the years of incessant night assaults, generating protests from President Hamid Karzai and various cases from Afghans and human rights organizations that unarmed citizens and vulnerable people, of any age group and gender, were being killed.[39]

The increasing civilian casualties were partly because of faulty intelligence and the Australian report also concedes that some operations lacked "actionable intelligence".[40] The difficulties and dangers of battling a counter-insurgency war in a foreign country led some Australian commentators to presume that the country should not have participated militarily in this period of the contention.[41]

The Australian report makes a scratch in the hefty reinforcement of impunity that has encircled the worldwide pursuit of the Afghanistan war. Along with the US and UK, the Afghanistan Independent Human Rights Commission has approached other countries, to follow the Australian example and interrogate conceivable unlawful killings by their forces in Afghanistan.[42]

Prosecution and Rights of Fair Trial
International commitments of Afghanistan on the obligation to indict do not leave any ambiguity. All the relevant treaties and covenants have been ratified, most significantly, the Rome Statute. However, the end of the war provides a chance for the authorities to grant amnesty in its highest capacity for those who participated in the armed conflict.[43] It should be clear that international crimes as defined in the Rome Statute are not excluded in this context. [44]Severe breaches of crimes against humanity and international humanitarian law are not exempted to be granted amnesty under international law.[45] War crimes are not restricted to acts carried out in international armed conflicts because these armed conflicts lead to the unbearable loss of property[46], life, and freedom. Those victimized by hostilities due to war crimes have the right to exercise their criminal jurisdiction so that the culprits are prosecuted and appropriate action is taken towards them.[47],[48]

According to Islamic Military Jurisprudence, during a war that should be conducted in a disciplined way, injuring non-combatants should be avoided. There should be a minimum force, persisting no anger, and humane treatment towards prisoners of war.[49],[50] Those arrested during the war should be given maximum protection along with ensuring their rights and obligations.[51] The study found that during the war in Afghanistan, people of all age groups, women, and children have been severely victimized due to the atrocities by insurgents.[52] This is a gross violation of International Human Rights and the Islamic Law of War. The similarities between International Human Rights and Islamic Law of War significantly direct the conduct of hostilities during contemporary situations of conflict.[53]

The domestic legal obligation of Afghanistan to arraign serious crimes is unambiguous. In 2017, the national legislation for crimes under the Rome Statute became part of Afghanistan's Penal Code.[54] The revised Penal Code defines and determines punishments for war crimes and crimes against humanity for the first time, including acts that the government has accused the Taliban of carrying out. These crimes were not defined at the time of the 2009 Amnesty Law or the 2016 Hezb-i Islami agreement.[55] However, like many countries, Afghanistan may meet its obligations under the Rome Statute selectively or unevenly, or disregard them altogether.[56] There has been little implementation of the Penal Code's provisions concerning serious crimes.

Afghanistan's 2009 Amnesty law is more a political statement than a legal text. There are ambiguities in its definition of those covered (individuals versus factions) and for what potential crimes (unspecified).[57] For a peace agreement with the Taliban, as for the agreement with Hezb-e Islami, the 2009 Amnesty Law already provides immunity from prosecution for those who agree to lay down their arms and recognize Afghanistan's Constitution. While the political will to prosecute is lacking, the problem of how to craft an appropriate amnesty in a peace deal with the Taliban is complicated. Aside from a very few cases prosecuted internationally and domestically, the worst crimes of the 1978-80 period, the crimes under the Soviet occupation, and the crimes of the 1990s have gone unpunished. A selective process of accountability also entails the risk of perpetuating injustice.

The delegation of ICRC is established in Kabul in 1987 whose focus is to prevent violations of international humanitarian law. Since the war in Afghanistan began, the international humanitarian law has been violated time and again. The violators have not been punished as war crimes under international humanitarian law comprise torture, willful killing, and inhuman treatment. War crimes committed in Afghanistan have not been subjected to investigation and prosecution.[58]

Afghanistan's international law obligations conflict with any blanket amnesty that would cover the most serious crimes as identified by the ICC. According to the ICC's preliminary report on Afghanistan, the Taliban war crimes include murder; deliberately planning and executing attacks against the citizens; deliberately directing execution against humanitarian personnel; and recruiting child soldiers below 15 years of age or utilizing them to contribute aggressively to hostilities. For members of the Afghan national security forces, war crimes include torture, sexual violence, and forced disappearances.[59] Children are often among the most vulnerable groups during the war because, by definition, they lack peer advocates.[60] This is true for children's rights in general and is perhaps more problematic during conflict conditions. Children are more compliant and easy to manipulate than adults. It's easier to abduct children or force them into becoming a soldier. Children under the age of 18 are recruited by the Taliban.[61] The study found that the children recruited into the armed forces are denied the right to life, education, development, and protection recognized by the international community.[62],[63]

Article 8 of the Afghanistan Constitution highlights the idea of good neighborhood, the principle of non-interference, and preserving external and internal sovereignty. However, the study shows that due to weak foreign policy and the non-cooperation of neighbors, the terrorists and their allies found their sanctuaries in neighboring states. It leads to proxy war, violation of human rights, and deaths of innocent civilians. Due to the interference of other states, Afghanistan does not have internal sovereignty to punish the culprits who wage wars and does not file strong litigation to international criminal courts to have investigation and prosecute the terrorists and those who patronize the terrorists to kill civilians.[64] Article 23 of the Afghanistan Constitution protects life as a natural and inalienable right.[65] The researcher remarks the right to life is fundamentally essential as no human shall be deprived of this right. War and attacks in Afghanistan have been a threat to this right as innocent humans cannot immune themselves from this heinous atrocity.[66]

Article 24 protects human dignity with liberty. The Constitution of Afghanistan provides that no person shall be deprived of his liberty except the violation of the law and impose duties to protect human dignity.[67] Article 7 directs the state to prevent all kinds of terrorist activities which lead to violation of human rights.[68] Article 28 states that those citizens accused of a crime shall not be extradited to a foreign state without reciprocal arrangements as well as international treaties to which Afghanistan has joined.[69] No Afghan shall be deprived of citizenship or sentenced to domestic or foreign exile. The provision of Article 28 is not adhered to as it highlights the extradition procedure.[70] If a situation of captivity arises, the prisoners shall be guarded and not be ill-treated.[71]

Owing to attacks perpetrated in Afghanistan by the Taliban and other foreign forces, there has been no investigation, trial, and conviction against the culprits who were the main cause of loss of life and property. This violation of law is subjected to a penalty greater than that which was inflicted under the law. As far as the principle of natural justice is concerned, no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.[72] The researcher remarks that there is no fair trial system for those who have been arrested by NATO who were alleged to be terrorists or associated with the terrorist nexus.[73] Every person who is arrested and detained by the international troops in Afghanistan was not produced before the criminal court.[74] Also, there have been restrictions on media including threats to journalists and harassment to report news in its actual form.[75] Journalists have been detained over the years who exercised the right of freedom of the Press.[76]

But after the attacks of September 11, 2001, in the US, a war was waged with Afghanistan in the name of protecting of fundamental rights of the citizens of the country along with promising the people to liberate them from the control of the Taliban. However, there were unexplained arrests and detention carried out in the name of intelligence and military operations which is against the human rights and humanitarian law.[77] During this period residences of innocent people who fell prone to torture, assault and abuse trespassed in the disguise of collecting evidence based on suspicion.[78] This is another example of war crime in Afghanistan.[79]

As the Taliban has committed a great number of such violations, specifically through targeted assassinations of civil servants and other political figures, and through mass-casualty suicide attacks, conviction through strict prosecution should be carried out. These war crimes can be proven beyond reasonable doubt as escapism and ignorance of the basic rights of citizens are against the law.[80] The International Criminal Court (ICC) must request permission from the court's judges to initiate an examination into probable war crimes and crimes against humanity in Afghanistan.[81] The study found that the Amnesty Law is colorable legislation and it is inconsistent with the principle of natural justice. The themes of enactment and Pit and Substance of Law are vague, not serving any purpose.[82] Morally offensive acts such as degradation of women in Afghanistan[83], torture, and killing of civilians in attacks are not subjected to amnesty.[84],[85] The obligation of amnesty should not cover the heinous war crimes carried out in Afghanistan and strict punishment should be imposed.[86]

Conclusion
War crimes are identified with wrongdoings perpetrated at the time of war but even during peacetime. It is an extensive conception and if any harm is caused to mankind during peacetime, it is regarded as a war crime. Any kind of infringement of human rights falls under war crimes. The suffering of Afghans was ignored by the world for a couple of decades but what is not acceptable is Afghanistan's government is doing the same. Afghanistan does not have any substantial law on war crimes. Atrocities in Afghanistan include abuse of detainees of war or civilians. War crimes are significant examples of mass homicide and decimation, however, these violations are all the more extensively covered under international humanitarian law and portrayed as crimes against humanity. Various states hold various codes about the conduct of war. A few signatories have regularly violated the Geneva Conventions taking advantage of the ambiguities of law or political will to avoid compliance with regulations and standards. It is about the time when these issues of decimation and related violence are investigated in Afghanistan where those guilty are prosecuted to curb the violation of the basic right to life and related human rights. Henceforth, the study found that war crimes in Afghanistan are an infringement of international humanitarian law causing singular criminal responsibility and must be adequately investigated.

References:
1. Cassese Antonio (2013), Cassese's International Criminal Law (3rd ed.), Oxford University Press. pp. 63-66. ISBN 978-0-19-969492-1. Archived from the original on April 29, 2021.
2. Ibid
3. Ibid
4. Shaw, M.N (2008), International Law, Cambridge University Press, pp. 433-434. ISBN 978-0-521-89929-1
5. International Criminal Court (2017), Report on Preliminary Examination Activities 2017, December 4, 2017, The ICC has complementary jurisdiction over these crimes. This means the country's judiciary is authorised to address these crimes first. However, if it is unable or unwilling to do so, then the ICC can claim jurisdiction. A member state can transfer its jurisdiction to the ICC by requesting its intervention; alternatively, the ICC can initiate, by proprio motu (Latin for own initiative'), jurisdiction if a member state is unable or unwilling to prosecute the alleged crime (article 13, Rome Statute). The Office of the Prosecutor must establish the unwillingness or inability of the Afghan government to prosecute these crimes before the ICC can launch an investigation, https://www.icccpi.int/itemsDocuments/2017-PE-rep/2017-otp-rep-PE_ENG.pdf.
6. Article 8(2) of the Rome Statute of the International Criminal Court states:
For the purpose of this Statute, "war crimes" means:
Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
i. Wilful killing;
ii. Torture or inhuman treatment, including biological experiments;
iii. Wilfully causing great suffering, or serious injury to body or health;
iv. Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
v. Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
vi. Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
vii. Unlawful deportation or transfer or unlawful confinement;
viii. Taking of hostages.
7. An agenda for peace, preventive diplomacy, peacemaking and peace-keeping, report by the Secretary-General of 31 January 1992, UN Doc. A/47/277-S/241 I 1, paras. 16 and 18. Also published as a separate brochure by the United Nations, 2nd ed. 1995.
8. Article I common to the four Geneva Conventions of 12 August 1949 for the Protection of War Victims, and to Protocol additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977. - L. Condorelli and L. Boisson de Chazournes, " Quelques remarques Ó propos de I'obligation des Etats de " respecter et faire respecter " le droit international humanitaire " en toutes circonstances "', in Ch. Swinarski (ed.), Studies and Essays in honour of Jean Pictet, Geneva-The Hague 1984, pp. 17-35; and H.P. Gasser, " Ensuring respect for the Geneva Conventions and Protocols: the role of third States and the United Nations " , in H. Fox and M.A. Meyer (eds.), Ensuring Compliance, London 1993, pp. 15-49, in particular pp. 24-33.
9. International Conference for the Protection of War Victims (Geneva 1993), Final Declaration, para. I. 6., supra note 8, p. 378.
10. Article 5 of the Statutes states that the role of the ICRC is to undertake the tasks incumbent upon it under the Geneva Conventions, to work for the faithful application of international humanitarian law applicable in armed conflicts and to take cognizance of any complaints based on alleged breaches of that law (Article 5.2c), and also to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof (Article 5.2g). These Statutes are rep roduced in the Handbook of the International Red Cross and Red Crescent Movement, 13th ed., ICRC/International Federation, Geneva, 1994, pp. 415-432.
11. Art. 49, Geneva Convention I; Art. 50, Geneva Convention II; Art. 129, Geneva Convention III; Art. 146, Geneva Convention IV; and Art. 85(1), Additional Protocol I
12. Edoardo Greppi (1999), The Evolution of Individual Criminal Responsibility under International Law, Associate Professor of International Law at the University of Turin, Italy, International Committee of the Red Cross No. 835, p. 531-553, October 30, 1999
13. Linda Grant (2006), Harvard Law Bulletin, highlights the first international war crimes tribunal, Available at http://www.law.harvard.edu/alumni/bulletin/2006/spring/gallery.phpExhibit
14. United States (1867-1868), 40th Congress, 2nd Session, Trial of Henry Wirz, A Congressionally Mandated Report Summarizing the Military Commission's Proceedings, House Executive Document No. 23,
December 7, 1867, Available at https://www.loc.gov/rr/frd/Military_Law/pdf/Wirz-trial.pdf
15. James Brown Scott (1915), The Hague conventions and declarations of 1899 and 1907 contains the texts of all conventions and the ratifying countries as of 1915.
16. Hudson, Manley O. (1931), "Present Status of the Hague Conventions of 1899 and 1907". The American Journal of International Law, 25 (1): 114-117, doi:10.2307/2189634. JSTOR 2189634
17. Malcolm Shaw (2020), "Geneva Conventions". Encyclopedia Britannica, 4 Mar. 2020, https://www.britannica.com/event/Geneva-Conventions. Accessed 25 May 2021.
18. Ibid
19. https://www.un.org/en/genocideprevention/war-crimes.shtml
20. Clayton Thomas (2021), Afghanistan: Background and U.S. Policy: In Brief, Congressional Research Service, https://crsreports.congress.gov
21. Anthony H. Cordesman, Burke Chair in Strategy with the Assistance of Bryan Gold and Sean T. Mann (2012), The Afghan War: Creating the Economic Conditions and Civil-Military Aid Efforts Needed for Transition, Center for Strategic and International Studies, Burke Chair in Strategy, Third Working Draft: September 18th, 2012, Available at https://csis-website-prod.s3.amazonaws.com/s3fs-public/legacy_files/files/publication/120918_Afghan_Failing_Econ.pdf
22. Council on Foreign Relations (2021), The U.S. War in Afghanistan (1999-2021), Available at https://www.cfr.org/timeline/us-war-afghanistan
23. Knaus, Christopher (2020), "Australian special forces involved in murder of 39 Afghan civilians, war crimes report alleges", The Guardian, ISSN 0261-3077, Retrieved 2021-05-21.
24. Brereton Report (2020), Inspector‐General of the Australian Defence Force Afghanistan Inquiry Report, Available at https://afghanistaninquiry.defence.gov.au/sites/default/files/2020-11/IGADF-Afghanistan-Inquiry-Public-Release-Version.pdf
25. Ibid
26. https://www.bbc.com/news/world-australia-55088230
27. "Paul Brereton inquiry uncovers list of alleged Australian war crimes in Afghanistan", 7NEWS.com.au. 2020-11-19. Retrieved 2021-05-23
28. Hitch, Georgia (2020), "What war crimes did Australian soldiers commit in Afghanistan and will anyone go to jail?", ABC News. Retrieved 2021-05-23.
29. Article 6(5) of the 1977 Additional Protocol II provides that At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict
30. International Committee of the Red Cross, Practice Relating to Rule 159: Amnesty, IHL Database, https://ihl-databases.icrc.org/customaryihl/eng/docs/v2_rul_rule159_sectiona.
31. Ahmed Al-Dawoody (2017), International Humanitarian Law and Islam: An Overview, Available at: https://blogs.icrc.org/law-and-policy/2017/03/14/ihl-islam-overview/
32. Preamble of the Rome Statute states that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes
33. Jan Wouters (2005), The Obligation to Prosecute International Law Crimes, International Institute of Law, Catholic University of Leuven, p. 603, https://www.law.kuleuven.be/iir/nl/onderzoek/opinies/obligationtoprosecu te.pdf.
34. https://www.bbc.co.uk/religion/religions/islam/islamethics/war.shtml
35. Patricia Crone, Encyclopedia of the Qur'an, "War". Brill Publishers, p. 456.
36. Third Geneva Convention (1949), Convention relative to the Treatment of Prisoners of War - Protects members of the armed forces who have been taken prisoner. Sets forth the detaining power's rights and obligations, including how prisoners are to be treated, Available at http://hrlibrary.umn.edu/instree/y3gctpw.htm
37. Ali, Shaheen Sardar; Rehman, Javaid. (Winter, 2005) "The Concept of Jihad in Islamic International Law". Journal of Conflict & Security Law. 10 (3) pp. 321-43.
38. Supra Note 26
39. Afghanistan Penal Code (2017), Available at https://aceproject.org/ero-en/regions/asia/AF/Penal%20Code%20Eng.pdf/view
40. Pike, John (1998), "Hizb-i-Islami (Islamic Party)", Intelligence Resource Program, Federation of American Scientists.
41. Rule 158 in the ICRC's study on customary IHL: Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, ICRC, Geneva / Cambridge University Press, Cambridge, 2005, available at http://www.icrc.org/ customary-ihl/eng/docs/home.
42. Supra Note 5
43. Simmons, B.A. (2009), Mobilizing for Human Rights: International Law In Domestic Politics, Cambridge University Press, 2009, at 451
44. Cohn, I., Southwick, M., Vandergrift, K. (2004), International Law Barring Child Soldiers in Combat: Problems in Enforcement and Accountability, Cornell Int'l L.J. 2004 at 531
45. Pearn, J. (2003), Children and War, Journal of paediatrics and child health, 2003 - Wiley Online Library, at 141
46. Article 49 of the Afghanistan Constitution mandates that Forced labor shall be forbidden. Active participation in times of war, disaster, and other situations that threaten public life and comfort shall be among the national duties of every Afghan. Forced labor on children shall not be allowed.
47. Article 8 of Afghanistan Constitution highlights The state shall regulate the foreign policy of the country on the basis of preserving the independence, national interests and territorial integrity as well as non-interference, good neighborliness, mutual respect and equality of rights.
48. Article 23 of Afghanistan Constitution reminds that Life is the gift of God as well as the natural right of human beings. No one shall be deprived of this except by legal provision.
49. Article 24 of Afghanistan Constitution clearly mentions Liberty is the natural right of human beings. This right has no limits unless affecting others freedoms as well as the public interest, which shall be regulated by law. Liberty and human dignity are inviolable. The state shall respect and protect liberty as well as human dignity.
50. Article 7 of Afghanistan Constitution directs that The state shall observe the United Nations Charter, interstate agreements, as well as international treaties to which Afghanistan has joined, and the Universal Declaration of Human Rights. The state shall prevent all kinds of terrorist activities, cultivation and smuggling of narcotics, and production and use of intoxicants.
51. Article 28 of Afghanistan Constitution enshrines that No citizen of Afghanistan accused of a crime shall be extradited to a foreign state without reciprocal arrangements as well as international treaties to which Afghanistan has joined. No Afghan shall be deprived of citizenship or sentenced to domestic or foreign exile.
52. Nigosian, S. A. (2004). Islam. Its History, Teaching, and Practices. Bloomington: Indiana University Press. p. 115
53. Article 29 of Afghanistan Constitution states that Persecution of human beings shall be forbidden. No one shall be allowed to or order torture, even for discovering the truth from another individual who is under investigation, arrest, detention or has been convicted to be punished. Punishment contrary to human dignity shall be prohibited.
54. Article 30 of Afghanistan Constitution states that A statement, confession or testimony obtained from an accused or of another individual by means of compulsion shall be invalid. Confession to a crime is a voluntary admission before an authorized court by an accused in a sound state of mind.
55. Article 34 of Afghanistan Constitution states that Freedom of expression shall be inviolable. Every Afghan shall have the right to express thoughts through speech, writing, illustrations as well as other means in accordance with provisions of this constitution. Every Afghan shall have the right, according to provisions of law, to print and publish on subjects without prior submission to state authorities. Directives related to the press, radio and television as well as publications and other mass media shall be regulated by law.
56. Ibid
57. Article 38 of Afghanistan Constitution states that Personal residences shall be immune from trespassing. No one, including the state, shall have the right to enter a personal residence or search it without the owner's permission or by order of an authoritative court, except in situations and methods delineated by law. In case of an evident crime, the responsible official shall enter or search a personal residence without prior court order. The aforementioned official, shall, after entrance or completion of search, obtain a court order within the time limit set by law
58. Article 56 of Afghanistan Constitution inflicts that Observance of the provisions of the constitution, obedience of laws and respect of public order and security shall be the duty of all citizens of Afghanistan. Ignorance of the laws shall not be considered an excuse.
59. Supra Note 5
60. Veintmilla, Julian D. (2016) "Islamic Law and War Crimes Trials: The Possibility and Challenges of a War Crimes Tribunal against the Assad Regime and ISIL," Cornell International Law Journal: Vol. 49: No. 2, Article 6.
Available at: https://scholarship.law.cornell.edu/cilj/vol49/iss2/6
61. Farhad Malekian (2011), Principles Of Islamic International Criminal Law: A Comparative Search 344- 46 (Eugene Cotran, Mark Hoyle & Martin Lau eds., 2d ed. 2011).
62. Farhad Malekian's extensive analysis states: It is a well-known fact that the spirit of both [international criminal law and Islamic international criminal law] is to release all human beings from all concepts of limitations, restrictions and superficial differences and ignorance. Simultaneously, the system of international criminal law does not ignore Islamic law and puts a heavy weight, on its concepts, in terms of the coexistence of sovereignties.
63. Aboul-Enein, H. Yousuf and Zuhur, Sherifa, Islamic Rulings on Warfare, p. 22, Strategic Studies Institute, US Army War College, Diane Publishing Co., Darby PA, ISBN 1-4289-1039-5
During his life, Muhammad gave various injunctions to his forces and adopted practices toward the conduct of war. The most important of these were summarized by Muhammad's companion and first Caliph, Abu Bakr, in the form of ten rules for the Muslim army:

People! I charge you with ten rules; learn them well! Stop, O people, that I may give you ten rules for your guidance in the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy's flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services; leave them alone.

End-Notes:
[1]* [2] Cassese Antonio (2013), Cassese's International Criminal Law (3rd ed.), Oxford University Press. pp. 63-66. ISBN 978-0-19-969492-1. Archived from the original on April 29, 2021.
[3] Sayed Qudrat Hashimy, THE RECOGNITION AND LEGITIMACY OF THE TALIBAN GOVERNMENT: A CONUNDRUM IN INTERNATIONAL LAW, 28, 3.
[4] Ibid
[5] Sayed Hashimy, Jackson Magoge & Ahsnat Mokarim, Relentless Violation of International Humanitarian Law During the Ongoing Conflict in Afghanistan, 9 SSRN Electronic Journal 12, 5 (2022).
[6] Ibid
[7] Sayed Qudrat Hashimy, ANALYSIS OF THE UNITED STATES' LIABILITY FOR WAR CRIME IN AFGHANISTAN, 3 1-14, 4 (2021).
[8] Shaw, M.N (2008), International Law, Cambridge University Press, pp. 433-434. ISBN 978-0-521-89929-1
[9] Hashimy, Magoge, and Mokarim, supra note 4 at 7.
[10] International Criminal Court (2017), Report on Preliminary Examination Activities 2017, December 4, 2017, The ICC has complementary jurisdiction over these crimes. This means the country' s judiciary is authorised to address these crimes first. However, if it is unable or unwilling to do so, then the ICC can claim jurisdiction. A member state can transfer its jurisdiction to the ICC by requesting its intervention; alternatively, the ICC can initiate, by proprio motu (Latin for own initiative' ), jurisdiction if a member state is unable or unwilling to prosecute the alleged crime (article 13, Rome Statute). The Office of the Prosecutor must establish the unwillingness or inability of the Afghan government to prosecute these crimes before the ICC can launch an investigation, https://www.icccpi.int/itemsDocuments/2017-PE-rep/2017-otp-rep-PE_ENG.pdf.
[11] Article 8(2) of the Rome Statute of the International Criminal Court states:
For the purpose of this Statute, "war crimes" means:
Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
Wilful killing;
Torture or inhuman treatment, including biological experiments;
Wilfully causing great suffering, or serious injury to body or health;
Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
Unlawful deportation or transfer or unlawful confinement;
Taking of hostages.
[12] An agenda for peace, preventive diplomacy, peacemaking and peace-keeping, report by the Secretary-General of 31 January 1992, UN Doc. A/47/277-S/241 I 1, paras. 16 and 18. Also published as a separate brochure by the United Nations, 2nd ed. 1995.
[13] Article I common to the four Geneva Conventions of 12 August 1949 for the Protection of War Victims, and to Protocol additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977. - L. Condorelli and L. Boisson de Chazournes, " Quelques remarques Ó propos de I'obligation des Etats de " respecter et faire respecter " le droit international humanitaire " en toutes circonstances "', in Ch. Swinarski (ed.), Studies and Essays in honour of Jean Pictet, Geneva-The Hague 1984, pp. 17-35; and H.P. Gasser, " Ensuring respect for the Geneva Conventions and Protocols: the role of third States and the United Nations " , in H. Fox and M.A. Meyer (eds.), Ensuring Compliance, London 1993, pp. 15-49, in particular pp. 24-33.
[14] International Conference for the Protection of War Victims (Geneva 1993), Final Declaration, para. I. 6., supra note 8, p. 378.
[15] Article 5 of the Statutes states that the role of the ICRC is to undertake the tasks incumbent upon it under the Geneva Conventions, to work for the faithful application of international humanitarian law applicable in armed conflicts and to take cognizance of any complaints based on alleged breaches of that law (Article 5.2c), and also to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof (Article 5.2g). These Statutes are rep roduced in the Handbook of the International Red Cross and Red Crescent Movement, 13th ed., ICRC/International Federation, Geneva, 1994, pp. 415-432.
[16] Art. 49, Geneva Convention I; Art. 50, Geneva Convention II; Art. 129, Geneva Convention III; Art. 146, Geneva Convention IV; and Art. 85(1), Additional Protocol I
[17] Edoardo Greppi (1999), The Evolution of Individual Criminal Responsibility under International Law, Associate Professor of International Law at the University of Turin, Italy, International Committee of the Red Cross No. 835, p. 531-553, October 30, 1999
[18] Linda Grant (2006), Harvard Law Bulletin, highlights the first international war crimes tribunal, Available at http://www.law.harvard.edu/alumni/bulletin/2006/spring/gallery.phpExhibit
[19] Sayed Hashimy, Dynamic Role of the United Nations Security Council to Maintain Peace and Security in Asia Especially in Afghanistan, May 17, 2017.
[20] United States (1867-1868), 40th Congress, 2nd Session, Trial of Henry Wirz, A Congressionally Mandated Report Summarizing the Military Commission's Proceedings, House Executive Document No. 23,
December 7, 1867, Available at https://www.loc.gov/rr/frd/Military_Law/pdf/Wirz-trial.pdf
[21] Hashimy, Magoge, and Mokarim, supra note 4 at 7.
[22] James Brown Scott (1915), The Hague conventions and declarations of 1899 and 1907 contains the texts of all conventions and the ratifying countries as of 1915.
[23] Hudson, Manley O. (1931), "Present Status of the Hague Conventions of 1899 and 1907". The American Journal of International Law, 25 (1): 114-117, doi:10.2307/2189634. JSTOR 2189634
[24] Malcolm Shaw (2020), "Geneva Conventions". Encyclopedia Britannica, 4 Mar. 2020, https://www.britannica.com/event/Geneva-Conventions. Accessed 25 May 2021.
[25] Ibid
[26] https://www.un.org/en/genocideprevention/war-crimes.shtml
[27] Clayton Thomas (2021), Afghanistan: Background and U.S. Policy: In Brief, Congressional Research Service, https://crsreports.congress.gov
[28] Hashimy, Magoge, and Mokarim, supra note 4 at 6.
[29] Hashimy, supra note 2 at 8.
[30] Id. at 5.
[31] Anthony H. Cordesman, Burke Chair in Strategy with the Assistance of Bryan Gold and Sean T. Mann (2012), The Afghan War: Creating the Economic Conditions and Civil-Military Aid Efforts Needed for Transition, Center for Strategic and International Studies, Burke Chair in Strategy, Third Working Draft: September 18th, 2012, Available at https://csis-website-prod.s3.amazonaws.com/s3fs-public/legacy_files/files/publication/120918_Afghan_Failing_Econ.pdf
[32] Sayed Qudrat Hashimy, THE RECOGNITION AND LEGITIMACY OF THE TALIBAN GOVERNMENT: A CONUNDRUM IN INTERNATIONAL LAW, 28, 15.
[33] Hashimy, Magoge, and Mokarim, supra note 4 at 8.
[34] Council on Foreign Relations (2021), The U.S. War in Afghanistan (1999-2021), Available at https://www.cfr.org/timeline/us-war-afghanistan
[35] Knaus, Christopher (2020), "Australian special forces involved in murder of 39 Afghan civilians, war crimes report alleges", The Guardian, ISSN 0261-3077, Retrieved 2021-05-21.
[36] Hashimy, supra note 18 at 112.
[37] Brereton Report (2020), Inspector‐General of the Australian Defence Force Afghanistan Inquiry Report, Available at https://afghanistaninquiry.defence.gov.au/sites/default/files/2020-11/IGADF-Afghanistan-Inquiry-Public-Release-Version.pdf
[38] Ibid
[39] https://www.bbc.com/news/world-australia-55088230
[40] Hashimy, supra note 6 at 13.
[41] "Paul Brereton inquiry uncovers list of alleged Australian war crimes in Afghanistan", 7NEWS.com.au. 2020-11-19. Retrieved 2021-05-23
[42] Hitch, Georgia (2020), "What war crimes did Australian soldiers commit in Afghanistan and will anyone go to jail?", ABC News. Retrieved 2021-05-23.
[43] Article 6(5) of the 1977 Additional Protocol II provides that At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict
[44] Hashimy, supra note 18 at 17.
[45] International Committee of the Red Cross, Practice Relating to Rule 159: Amnesty, IHL Database, https://ihl-databases.icrc.org/customaryihl/eng/docs/v2_rul_rule159_sectiona.
[46] Ahmed Al-Dawoody (2017), International Humanitarian Law and Islam: An Overview, Available at: https://blogs.icrc.org/law-and-policy/2017/03/14/ihl-islam-overview/
[47] Preamble of the Rome Statute states that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes
[48] Jan Wouters (2005), The Obligation to Prosecute International Law Crimes, International Institute of Law, Catholic University of Leuven, p. 603, https://www.law.kuleuven.be/iir/nl/onderzoek/opinies/obligationtoprosecu te.pdf.
[49] https://www.bbc.co.uk/religion/religions/islam/islamethics/war.shtml
[50] Patricia Crone, Encyclopedia of the Qur'an, "War". Brill Publishers, p. 456.
[51] Third Geneva Convention (1949), Convention relative to the Treatment of Prisoners of War - Protects members of the armed forces who have been taken prisoner. Sets forth the detaining power' s rights and obligations, including how prisoners are to be treated, Available at http://hrlibrary.umn.edu/instree/y3gctpw.htm
[52] Ali, Shaheen Sardar; Rehman, Javaid. (Winter, 2005) "The Concept of Jihad in Islamic International Law". Journal of Conflict & Security Law. 10 (3) pp. 321-43.
[53] Supra Note 26
[54] Afghanistan Penal Code (2017), Available at https://aceproject.org/ero-en/regions/asia/AF/Penal%20Code%20Eng.pdf/view
[55] Pike, John (1998), "Hizb-i-Islami (Islamic Party)", Intelligence Resource Program, Federation of American Scientists.
[56] Hashimy, supra note 18.
[57] Sayed Hashimy, An Analysis of Naked Licensing in the Case of Trademark Law in the U.S., U.K. And India, 17 SSRN Electronic Journal 2, 12 (2022).
[58] Rule 158 in the ICRC' s study on customary IHL: Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, ICRC, Geneva / Cambridge University Press, Cambridge, 2005, available at http://www.icrc.org/ customary-ihl/eng/docs/home.
[59] Supra Note 5
[60] Simmons, B.A. (2009), Mobilizing for Human Rights: International Law In Domestic Politics, Cambridge University Press, 2009, at 451
[61] Cohn, I., Southwick, M., Vandergrift, K. (2004), International Law Barring Child Soldiers in Combat: Problems in Enforcement and Accountability, Cornell Int' l L.J. 2004 at 531
[62] Pearn, J. (2003), Children and War, Journal of paediatrics and child health, 2003 - Wiley Online Library, at 141
[63] Article 49 of the Afghanistan Constitution mandates that Forced labor shall be forbidden. Active participation in times of war, disaster, and other situations that threaten public life and comfort shall be among the national duties of every Afghan. Forced labor on children shall not be allowed.
[64] Article 8 of Afghanistan Constitution highlights The state shall regulate the foreign policy of the country on the basis of preserving the independence, national interests and territorial integrity as well as non-interference, good neighborliness, mutual respect and equality of rights.
[65] Hashimy, supra note 31 at 12.
[66] Article 23 of Afghanistan Constitution reminds that Life is the gift of God as well as the natural right of human beings. No one shall be deprived of this except by legal provision.
[67] Article 24 of Afghanistan Constitution clearly mentions Liberty is the natural right of human beings. This right has no limits unless affecting others freedoms as well as the public interest, which shall be regulated by law. Liberty and human dignity are inviolable. The state shall respect and protect liberty as well as human dignity.
[68] Article 7 of Afghanistan Constitution directs that The state shall observe the United Nations Charter, interstate agreements, as well as international treaties to which Afghanistan has joined, and the Universal Declaration of Human Rights. The state shall prevent all kinds of terrorist activities, cultivation and smuggling of narcotics, and production and use of intoxicants.
[69] Hashimy, supra note 31 at 10.
[70] Article 28 of Afghanistan Constitution enshrines that No citizen of Afghanistan accused of a crime shall be extradited to a foreign state without reciprocal arrangements as well as international treaties to which Afghanistan has joined. No Afghan shall be deprived of citizenship or sentenced to domestic or foreign exile.
[71] Nigosian, S. A. (2004). Islam. Its History, Teaching, and Practices. Bloomington: Indiana University Press. p. 115
[72] Hashimy, supra note 6 at 18.
[73] Article 29 of Afghanistan Constitution states that Persecution of human beings shall be forbidden. No one shall be allowed to or order torture, even for discovering the truth from another individual who is under investigation, arrest, detention or has been convicted to be punished. Punishment contrary to human dignity shall be prohibited.
[74] Article 30 of Afghanistan Constitution states that A statement, confession or testimony obtained from an accused or of another individual by means of compulsion shall be invalid. Confession to a crime is a voluntary admission before an authorized court by an accused in a sound state of mind.
[75] Hashimy, supra note 6 at 9.
[76] Article 34 of Afghanistan Constitution states that Freedom of expression shall be inviolable. Every Afghan shall have the right to express thoughts through speech, writing, illustrations as well as other means in accordance with provisions of this constitution. Every Afghan shall have the right, according to provisions of law, to print and publish on subjects without prior submission to state authorities. Directives related to the press, radio and television as well as publications and other mass media shall be regulated by law.
[77] Ibid
[78] Hashimy, supra note 18 at 13.
[79] Article 38 of Afghanistan Constitution states that Personal residences shall be immune from trespassing. No one, including the state, shall have the right to enter a personal residence or search it without the owner' s permission or by order of an authoritative court, except in situations and methods delineated by law. In case of an evident crime, the responsible official shall enter or search a personal residence without prior court order. The aforementioned official, shall, after entrance or completion of search, obtain a court order within the time limit set by law
[80] Article 56 of Afghanistan Constitution inflicts that Observance of the provisions of the constitution, obedience of laws and respect of public order and security shall be the duty of all citizens of Afghanistan. Ignorance of the laws shall not be considered an excuse.
[81] Supra Note 5
[82] Hashimy, supra note 6 at 10.
[83] Veintmilla, Julian D. (2016) "Islamic Law and War Crimes Trials: The Possibility and Challenges of a War Crimes Tribunal against the Assad Regime and ISIL," Cornell International Law Journal: Vol. 49: No. 2, Article 6.
Available at: https://scholarship.law.cornell.edu/cilj/vol49/iss2/6
[84] Farhad Malekian (2011), Principles Of Islamic International Criminal Law: A Comparative Search 344- 46 (Eugene Cotran, Mark Hoyle & Martin Lau eds., 2d ed. 2011).
Farhad Malekian' s extensive analysis states: It is a well-known fact that the spirit of both [international criminal law and Islamic international criminal law] is to release all human beings from all concepts of limitations, restrictions and superficial differences and ignorance. Simultaneously, the system of international criminal law does not ignore Islamic law and puts a heavy weight, on its concepts, in terms of the coexistence of sovereignties.
[85] Aboul-Enein, H. Yousuf and Zuhur, Sherifa, Islamic Rulings on Warfare, p. 22, Strategic Studies Institute, US Army War College, Diane Publishing Co., Darby PA, ISBN 1-4289-1039-5
During his life, Muhammad gave various injunctions to his forces and adopted practices toward the conduct of war. The most important of these were summarized by Muhammad's companion and first Caliph, Abu Bakr, in the form of ten rules for the Muslim army:
O people! I charge you with ten rules; learn them well! Stop, O people, that I may give you ten rules for your guidance in the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy's flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services; leave them alone.
[86] Hashimy, Magoge, and Mokarim, supra note 4 at 11.

Written By: Mohammad Rasikh Wasiq, Student of LLM (International Law) - ILS Law College, Pune
Email: [email protected]

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