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Afghanistan and International Humanitarian Law
The Report to the 5th Pre- Session, 26 August 2021

During the 5th   pre- session of online conference on ‘International law and armed conflicts in the region’, entitled as ‘upheaval in Afghanistan and international humanitarian law’, Dr. Mostafa Fazaeli - assistant professor of international law at Qom University addressed the subject of Afghanistan upheaval and international terrorism in international humanitarian law.
In August 26 a faculty member of Qom University stated that Taliban denies targeting and killing civilians, but apparently the Taliban's definition of civilians contradicts the definitions provided by International Humanitarian Law(IHL).
Past decades have seen an increase in international and non-international armed conflicts in the Middle East and West Asia, he further noted. For over four decades now, Afghanistan has been ravaged by either international or non-international armed conflicts.
He also indicated that the definition of “terrorism” has evolved over time. Traditionally, the concept of terrorism only involved individuals or terrorist groups, but nowadays act of terrorism is conducted by states, too. Thus the notion of state-terrorism, though it existed before, is vague and needs more attention. Sometimes terrorist acts are perpetrated within the context of an armed conflict, in which case they will be subject to international humanitarian law.
He added, the definition of the term “terrorism” is inherently controversial and we are faced with various definitions of terrorism in international law and this has led to controversy.
Referring to the comprehensive definition of terrorism provided by the European Union, Dr. Fazaeli noted that this definition is among few definitions which also refer to crimes against property. It refers to serious destabilization or fundamental destruction of the political, economic and social structures of a country or an organization as well.
He affirmed that a continuous situation of armed conflict in Afghanistan has existed since 1978. During this time the conflict has been mostly non-international and in some occasions international.
Since 19 June 2002 the conflict in Afghanistan was internationalized, so crimes perpetrated in this period of time can be identified as war crimes. In this case, the conduct of Taliban and the states involved in the conflict shall be considered an act of a State under international law and subject to states responsibility. Accordingly, Taliban shall be considered responsible for pursuing international criminal responsibility of the perpetrators of terrorist and war crimes, crimes against humanity and possibly genocide.
Next speaker was Dr. Mohammad Saleh Taskhiri -lecturer at Qom University faculty of law and international law who addressed ‘protection of cultural and property rights under international humanitarian law with an emphasis on Afghanistan situation.’ He affirmed that today, protecting cultural property in relation to armed conflicts is considered as a norm of customary international law.
He also noted that 1954 Convention prohibits any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples. The Convention also prohibits complete or partial demolition of other sanctuaries including historic, religious or cultural landmarks.
He contended that in this respect there are some binding international obligations for States. States shall undertake to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property.
 Dr. Abdolhakim Salimi, Faculty of al-Mustafa International University who remarked on ‘Fundamentals of international humanitarian law from the Perspective of Islam and International Law with an Emphasis on the Situation in Afghanistan’, confirmed that there exists a relation between Islamic law and IHL; Islamic law of war emphasizes on rules and principles of humanitarian law such as “the principle of distinction”.
He asserted that Humanitarian crisis around the world have been exacerbated by conflict and Afghans have endured 40 years of uninterrupted war. The opinion of humanitarian rights should have a direct relation with basic notions like human beings, human dignity and the environment; and this is a challenging issue. General principles of international law are the cornerstones of IHL.
 Faculty of al-Mustafa International University stated that principle of distinction provides that the principle of distinction is a fundamental principle of international humanitarian law which provides that parties to an armed conflict must “at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives”. Islamic law considers the distinction between civilian population and things and military combatants and objectives, as well.
Dr. Abbas Ali Azimi Shushtari, faculty of law of Imam Sadiq Research Center on Islamic Sciences who addressed the issue of ‘IHL Applicable to the Situation in Afghanistan’ noted that some kind of acceptance and relation to their predecessors can be implied from the speech of Taliban spokesperson. Therefore, wrongful acts done by the first group of Taliban must also be prosecuted.
He stated that International humanitarian law distinguishes between two categories of armed conflict: international and non-international armed conflicts. Article 2 Common to the four Geneva Conventions which is much the same as the entirety of the four Geneva Conventions, as well as the rules of Additional Protocol I apply to international armed conflicts, while Article 3 Common to the four Geneva Conventions and Additional Protocol II apply to non-international armed conflicts. From a humanitarian point of view, non-international armed conflicts are subject to the same rules as international armed conflicts. Some conducts of hostilities like street riots do not have the description of internal conflicts and certainly IHL does not apply to such conflicts. There is a misconception that individuals involved in internal conflicts, are not considered fighters, but the truth is that pursuant to international rules and regulations, these individuals are defined as combatants, too.
Dr. Seyed Hesamoddin Lesani -Faculty of Law Hazrat-e Masoumeh University of Qom emphasized on ‘The Role of IHL and ICC in Afghanistan Upheavals’. He noted that International criminal liability does not have a long history in international law; international criminal tribunals for Rwanda and former Yugoslavia were the cornerstones of the international attention to individual criminal responsibility. He mentioned that ICC has the jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes and the crime of aggression. Among these war crimes are related to humanitarian law. It is defined in Article 8 of the Statute of the International Criminal Court and states that gross violation of the Geneva Conventions, as well as international law and customary law in the field of the law of armed conflicts, is a war crime.
At the outset, no one seems to disagree with this, as the Statute of the Court entered into force for the Government of Afghanistan in May 2003 and Afghanistan is considered a member of the Court. Since February 2003, Afghanistan has ratified the Statute of the Court.
He added: "In case of Afghanistan and the crimes committed in that country, Afghanistan is a member of the International Criminal Court and as a result, any such crimes that occur in Afghanistan can be prosecuted by the Court, even if committed by citizens of states that are not members of the Court."
The perpetrators who may be prosecuted in the case of Afghanistan are divided into three categories: Afghan government forces for committing certain crimes, crimes committed by Taliban forces, and the trial of US forces in Afghanistan; First two groups are from inside Afghanistan but the trial of American troops is more difficult because on November 20, 2017, the Prosecutor at the International Criminal Court (ICC) applied to the Preliminary Branch of the ICC for a permit for crimes committed in Afghanistan since the beginning of May 2003, arguing that The case has no specific legal consequences, the court refused to issue an order and did not allow the prosecutor to enter the case; Eventually, the prosecutor insisted, and the Appellate Division issued the permit on March 5, 2020, to begin an investigation about the issue.
It's because The Government of Afghanistan has further explicitly authorized the U.S. government to exercise criminal jurisdiction over U.S. personnel. Thus, under the existing SOFA, the United States would have jurisdiction over the prosecution of the service member who allegedly attacked the Afghan civilians.
The faculty member contended that Afghanistan cannot prosecute US troops, but at the same time it cannot deprive the court of this right, and the International Criminal Court has the right to prosecute US troops.
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