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31 Fla. J. Int'l L. 1 (2019-2020)

handle is hein.journals/fjil31 and id is 1 raw text is: 



         A CRITICAL ANALYSIS OF THE ROME STATUE
              IMPLEMENTATION IN AFGHANISTAN

                         Abdul Mahir  Hazim*

                               Abstract
   Afghanistan  has been a war-torn country for the past forty years. Over
this time, countless atrocities have been committed   and the lives of
thousands  of innocents have been taken. For example, according to the
most  recent  report by  the UN   Assistance  Mission  in Afghanistan
(UNAMA), in 2018 alone 10,993 civilians were killed   or injured in the
country, one of the highest number of causalities since UNAMA   started
recording such numbers  in 2007. Yet no one has been  held accountable
for the atrocities, neither in national nor in international courts, and an
entrenched culture of impunity continues to flourish to the present day.
This lack of accountability is particularly vexing given that Afghanistan
has  been  a state party  to the Rome Statute since 2003, and the
International Criminal Court (ICC) has jurisdictions over crimes against
humanity, war  crimes, and genocide committed  within the country after
May  1, 2003.
   The  purpose of this Article is to critically examine the situation in
Afghanistan   after 2003   with  regard  to international crimes   and
preliminary ICC  investigations, with a close eye on the latest efforts of
the ICC  and the government   of Afghanistan. This  Article argues that
Afghanistan  has not yet fulfilled its basic obligations under the Rome
Statute to prosecute grave crimes and cooperate with the ICC;  and the
ICC  has not duly accomplished its mandate in the country by exercising
its jurisdiction and prosecuting  pertinent crimes. Furthermore,   this
Article will deconstruct  the recent  Afghan  government's   argument
against the applicability of the complementarity principle of the Rome
Statute, and instead contend that the two-pronged test of unwillingness
and inability on the part of the Afghan government has been met and thus
ICC  intervention is not only legally justified but mandated. Furthermore,
this Article problematizes the recent decision and reasoning of the Pre-
Trial Chamber   to not allow the Prosecutor to proceed  with an actual
investigation in Afghanistan.  Finally, the Article explores  potential
impacts  of an  ICC  intervention and  benefits of  opening  an actual
investigation in the country.



     * I am very grateful for my long-time mentor, Gayle Zilber, who closely reviewed and
edited the first draft of this Article and provided very insightful comments. Her edits and
suggestions made the argument and the organization of this Article much clearer and stronger
than it was before. In addition, I'd like to recognize and appreciate the editorial team of the
Florida Journal of International Law for their edits and reviews.

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