18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE
Day 3 (4 December 2019)
Name of the Event: The Politics of Peace: How ICC Intervention Impacts Accountability in Countries that Fail to Provide Justice to Victims (Side Event co-hosted by Norway, Justice International, and the Transitional Justice Coordination Group (TJCG))
Overview by: Keri van Douwen, Junior Research Associate PILPG-NL
Main Highlights:
ICC denial to open investigation into Afghanistan leaves victims feeling betrayed by an institution that is mandated to deliver justice to the international community, of which Afghans are very much a part.
There is no reason to be cautious about the timing of seeking justice as the very little development happening at high political levels does not translate to the reality on the ground: for the people of Afghanistan, the war is only getting more brutal.
There will be no peace without justice and accountability: Afghanis have seen many peace negotiations, amnesty bills and peace deals while nothing has led to actual peace. One cannot use the same failed formula over and over again and expect a different result.
Justice is at the core of Afghan culture and tradition. Forgiveness as well. But so is revenge.
Summary of the Event:
“If you are going to have a cup of tea with warlords, have a cup of tea with civil society as well.” (Janet Anderson)
On the third day of the 18th session of the ASP a side event entitled “Politics of Peace” was (co-)hosted by Justice International and the Transitional Justice Coordination Group with support from Norway. Moderated by Janet Anderson (project manager at Justice Hub, international justice observer and host of podcast called ‘Asymmetrical Haircuts’), a panel including victims of the Afghan war, or human rights defenders, as well as experts on human rights and transitional justice, discussed the refusal of the ICC to open an investigation into the situation of Afghanistan, especially in relation to the desires of victims on the ground. The timeliness of the event was stark, given the ICC’s Appeals Chamber started hearing oral arguments on the same morning.
Amal Nassar, a jurist working for the International Federation for Human Rights (FIDH) as Representative to the ICC, emphasized the role that the denial to open this investigation has played in giving rise to discussions on reviewing the performance of the Court, a topic highlighted often during this year’s ASP. In several ways, the decision has shown light on the ICC’s many shortcomings. While the denial has been justified by the investigation not being ‘in the interest of justice’, Nasrina Bargzie, an Afghan-American attorney who represents seventeen different Afghan human rights organizations, argued that the Rome Statute should be closely studied to better understand with whom the authority to conduct an assessment of what is in the interest of justice lies. Horia Mosadiq, Afghan human rights defender and journalist who spoke passionately about her experience as a victim of war at the fourth plenary meeting earlier this week, explaining that she felt a sense of betrayal towards the ICC in deciding against investigating widespread atrocities committed in Afghanistan. Her feelings of betrayal stem from the ICC’s denial to fulfill what she considers it is mandated to do, namely to deliver justice. She also feels betrayed by the fact that the United States has been able to bring a Court, supported by 123 Member States, “to its knees”.
The panelists stressed that the ICC is part of a framework that Afghanistan has helped create (Afghanistan ratified the Rome Statute in February 2003) and that this is not a situation considered to be a foreign (western) interference. They noted that Afghan victims are asking for an impartial trial, as they realize that the discussion of whether or not peace should be sacrificed for justice is both irrelevant and mistaken. In the words of the late Kofi Annan, spoken by Amal Nassar, “justice and peace are not contradictory forces. Rather, properly pursued, they promote and sustain one another. The question, then, can never be whether to pursue justice and accountability, but rather when and how.” In the Afghan setting, where justice and peace have long been considered contradictory forces, it has meant that perpetrators turned high government officials or peace negotiators and that amnesty has been granted. For the panelists, this has put lasting peace far out of reach. The international community should learn from applying the same failed formula over and over and understand that a peace that is not inclusive, that is not addressing pain and grievances that Afghans have gone through, is not peace, but much more like a ceasefire. Amal Nassar, Nasrina Bargzie, and Horia Mosadiq stressed over and over again that victims do not have high expectations of the Court. On the contrary, they are very much aware that an investigation might not lead to arrests or prosecution. Rather, they seek to be heard, to make sure that diplomats understand that they should not only meet with warlords, but also with civil society. They want the world to recognize their experiences and they want to know what happened to their fathers, mothers, brothers, uncles, neighbours and whoever disappeared before their own eyes. Are they alive? Are they still being tortured? Where are their bodies? Nasrina Bargzie, in speaking of meeting ambassadors in Kabul, recollected that the only thing on their minds is the United States and what they might do, without any consideration of justice or accountability for the Afghan people. That is the politics of peace and quoting Richard Bennett “the politics of peace is as dirty as any other politics.”
Having listened to the other panelists, Sari Kouvo (co-founder and co-director of the Afghanistan Analysts Network) argued that what is needed is for the ICC and other institutions to adopt (some of) the stubbornness that is widely and continuously demonstrated by (Afghan) human rights defenders. Even if the ICC does not open an investigation, as Nasrina Bargzie tells us, Afghan people are resilient and willing to do the work to build up their country, every single day. Nevertheless, for her, denying the investigation into Afghanistan sends the message to the world that the ICC is in business for the easy cases only, while leaving the tough investigations unaddressed. The ICC should be an inspiring court, Amal Nasser argues “it could function as a catalyst for other cases to be opened on a domestic level”. The intention with which the Rome Statute was brought into force, bringing an end to impunity, is, in itself, not easy nor ever meant to be easy. That being said, Afghanistan has been ruled by a culture of impunity.
While initiatives towards transitional justice have waxed and waned since 2001, the panel shared an agreement that very little has been done by the international community to establish some level of accountability. Failing to do so has left Afghans no other choice than knocking on the door of the international community’s ‘last resort’ for justice. The panel was clear on the challenge that the International Criminal Court is facing, but also clear that it should face it head on. While the Afghan war remains far from over, Horia Mosadiq stresses that forgiveness is a value at the core of Afghan culture, tradition and religion. However, if justice is not delivered, it will be impossible to forgive - and revenge is, also, very much a part of Afghan culture.