Investigating war crimes in afghanistan the i. C. C. Has now cleared the way for an inquiry into the allegations and the u. S. Is angry so can justice be done in this war torn country and the politics at play this is inside story. Hello and welcome to the program im peter davi the International Criminal court has authorized an investigation into possible war crimes committed in afghanistan an appeal by the i. C. C. S chief prosecutor to bensouda was approved after being rejected last year hes ations of atrocities committed by u. S. Soldiers the taliban and Afghan Forces will now be investigated the torture of prisoners Sexual Violence and the indiscriminate mass killing of civilians are among the claims the i. C. C. Wants to look into but the u. S. Does not recognize the Courts Authority and the white house has even imposed a travel ban on its judges peterhof man skeel a judge presiding over the Appeals Chamber defended that ruling saying the case meets all the right criteria that in support of her request. For 2 zation of understood geisha into the situation in afghanistan the prosecutor presented information relating to normal incidence which and have you established reasonable basies that crime under the jurisdiction of the court have been committed while that decision angered the u. S. Secretary of state mike pompei oh this is a truly breathtaking action by an unaccountable Political Institution masquerading as a legal body. Heres all the more records for this ruling to come just days after the United States signed a historic peace deal on afghanistan which is the best chance for peace in a generation the United States is not a party to the i. C. C. We will take all necessary measures to protect our citizens from this renegade unlawful socalled court well the u. S. Has long seen the i. C. C. As a threat to its sovereignty in 2018 the former u. S. National security adviser john bolton lashed out saying this we wont cooperate with the i. C. C. Well provide no assistance to the i. C. C. And we certainly will not join the i. C. C. We will let the i. C. C. Die on its own adding that if the court comes after us we will not sit quietly. Ok lets bring in our guests joining us today from kabul we have more heem hes a Founding Member of the think tank the Afghanistan Affairs unit in washington we have shift im done formally an advisor to nato senior civilian representative in afghanistan and in amsterdam we have kevin john hello hes a law professor at the university of amsterdam and the Australian NationalUniversity Welcome to you all cry him in kabul coming to you 1st what are the chances at some point in the next year say we see somebody from the taliban somebody from the United StatesSecurity Apparatus or indeed somebody from the Afghan Military in court at the i. C. C. You know 1st of all lets look at the avalon conflict this discussion starting from 2001 does it cover the whole period of the conflict the avalon conflict started in 1979 and since then there have been numerous abuses of human rights grass while ations of the. And while asians of human rights there have been war crimes and. Throughout these last 4 decades so strong. Being from 2001 the 1st question will be does it satisfy all those who are advocating for the Transitional Justice in afghanistan i dont thing that thats happening with starting point theyre selected as 2001 because before that we had significant events taking place now coming back to your question 2001 and on words 1st of all your know that the American Administration america is not a signatory to the i. C. C. And they have. 2 raised the try to block this whole investigation also yesterday sic it to pump you up is this concerns about this whole exercise next one or 2 years i am not very much optimistic that things will move that fast fast i can also get tell you that in the past some actions were taking even the reports were not allowed 7 to be released by the Afghan Parliament by the government the Afghanistan Independent Human Rights Commission has had a significant exercise or the period ok if the 60 day ok those are accusations that are being circulated 100 couple of weeks so i try to broaden the discussion to bring in our 2 other guests. Kabul raises a valid point doesnt he if the u. S. Very aggressively chooses not to recognize the i. C. C. Whats the point. I think it was very clear from the beginning the United States even warren the members if they try to open investigation they will be blocked even entering the United States and censor this news came out the state department is aggressively going against them and of course as mushtaq said the United States is not party but afghanistan is party to i. C. C. And the independent Human Rights Commission chairwoman she welcomed the decision and aware that the Afghan Government is also not fully involved in this ricin investigation or would also say what happens at this very critical moment where we are talking about p. C. Conciliation negotiation release of prisoners right now like almost 5000 prisoners who have been accused of. Killing people. Exploiting bombs in afghanistan and i would say even one crimes these are the 5000 people that the taliban asked to be released and then the United States has agreed to the taliban that these 5000 taliban would be released so in such a situation where theres one on one side theres peace negotiation and another side i. C. C. Open this investigation i think its damaging i know for sure we cannot compromise legal means for political means there has to be processes but afghanistan unfortunately has been suffering from injustice for the last 4 decades my Family Member has been buried alive we have learned after 30 years you know theyre not no longer alive and they havent been alive so there has been a Transitional Justice process in afghanistan which has been blocked by the United States as well as parties who are involved so i think there will be significant pushback from Afghan People as well ok Kevin John Heller in amsterdam there are accusations in the New York Times this week that the trumpet ministration has been actively trying to intimidate members of the lower court at the i. C. C. Can we stand up in any way or is it something that you think we shouldnt be giving any credence to at all. Well you know i certainly am not privy to the kind of any Insider Information about what the u. S. Is or isnt doing kind of at the personal level but theres no question that the u. S. Has been extremely belligerent toward the court going well beyond any of the hostility we ever saw even from previous republican administrations i mean certainly the Bush Administration never tried to actually block visas the courts prosecutor d didnt threaten to freeze the assets you know investigators and prosecutors from the court so its quite clear that the u. S. Is going to do everything they can to prevent the i. C. C. From investigating it least americans in the near future ok mr him in kabul going back to really a point about weve got to get the parameters of the court set in stone i guess because afghanistan hit the front pages and the events after 911 the court was set up. In perpetuity i guess in 2002 the afghan line the official Afghan Government line however is this operating within those parameters it cannot serve justice doing what it wants to do. This is what im saying this is i already said that if you start from up post 911 into what will happen to before that where we had mass killings alive buddy a lot of people we had a civil war in afghanistan during which the warring parties did mass killing and also a heavy toll was taken by the woman of afghanistan the general public suffered significantly and there are recorded cases of abuse of human rights there are 4 in images and videos of those mass atrocities if those are not covered i think this is justice incomplete and justice incomplete will not serve the purpose of helping afghanistan to transition or to transition from the conflict into a just society because half a justice is i dont know how much purpose will it serve so that will remain a question to feet in washington how would this impact the very recent doha deal that saw the taliban and the United States saying yes there is a way forward to peace in afghanistan. I think it may impact but not heavily because all the parties are involved in this case if there is charges it would be against a taliban it would be against the United States as well as the Afghan Government so therefore i believe from all sides there would be kind of push back and just to you know tell you a story about the Transitional Justice in afghanistan which has been ongoing since almost 18 years the process the report the investigation has been completed in there has not been the least from the independent Human Rights Commission it has been saved and blocked since ever and nobody has been even talking about that so thats more of the internal things if such an International Course will start investigation im certain that neither the Afghan Government and now the United States or taliban will allow that investigation to happen it may damage the Peace Process it might be more of a political pushback but i dont expect any justice to discord and of course unfortunately we have been witness the bark on case is and you know this side of the ends and our course of always in our budget has a going to and a lot of other areas where the i. C. C. Try to deliver justice but it was more of a drama than delivering Justice Kevin john hell in amsterdam the point the crazes of what happened in the aftermath of the terrible events in the balkans in the 1990 s. Why should the peace deal between the United States and the taliban impacts what the i. C. C. May or may not end up doing with afghanistan at all because that process that Legal Process will take years and years and years and the people that signed the peace deal in doha if it holds theyll be dead and buried perhaps by the time theres a a final chapter in the i. C. C. Legal process. Well the 1st thing to point out is that the i. C. C. Had absolutely nothing to do with justice in the balkans that was the yugoslav tribunal set up by the Security Council the i. C. C. Didnt even exist at that point the i. C. C. Is only dealing with events that take place after 2002 when the rome statute enter into force so maybe the justice is imperfect but its the only justice the i. C. C. Can give now whether the i. C. C. Will somehow undermine the peace deal it could complicate it somewhat i think your point is very well taken that the that the investigations even if theyre successful will take considerable amount of time and we should measure that probably in years not in months but its also important to remember that the i. C. C. Even if it is successful in afghanistan will only be prosecuting a very small number of perpetrators it will only be prosecuting the most d high level most responsible perpetrators and there is no reason why the u. S. And Afghanistan Government and the taliban cant enter into peace negotiations and prisoner swaps at those lower levels the i. C. C. Has nothing to say about how these various parties are dealing with the less responsible perpetrators so i think im done in washington there is however already were told an operation a special unit set up in afghanistan by afghanistan so you could do as good a job as the i. C. C. Or not. I dont think so because in a situation right now in afghanistan basic human rights are not respected where there is one is as we are speaking right now unfortunately a few hours ago there was an attack and more than 27. 00 people have been killed and more than 50 people have been wounded and so far nobody has been responsible for that or might be later on isis or another group will claim responsibility so right now in afghanistan we are talking even even about very basic human rights forget about you know major criminals for example if we talk about the major criminals and if they cannot be off sick i would say the up hired us and the government the leadership in the government they are part of the major criminals the minister of defense is accused the 1st Vice President of afghanistan is accused and the president himself also been accused by the taliban for civilian casualties and of course you know general dostum who was his exwifes president he was and the less his current Vice President and the new ticket. Is also accused the minister of defense is accused so there is a big list of people who have been accused for water crimes and therefore i believe that there is no willingness within the Afghan Government and there is no power within the i. C. C. To exist any such action. Him in kabul to pick up on that point from should he come down to washington being charged and then being discovered being phoned being detained being arrested and going on trial those are very very Different Things so if the if everyone involved in this who doesnt like it if theyre actually scared of the symbolism of this names being symbolically charged people being symbolically charged why is that symbolism so significant. See the issue of Transitional Justice has always been something that the political elite has always tried to keep away and away from the discussion it has only been the human rights advocates and those advocating for Transitional Justice in afghanistan the 2nd point is that these political elite elites name our debt had been accused of engaged and water trustees so the ones who are accused are the ones who have been in power for last at least 18 years but one conflict they have been holding the aces in the whole conflict and that has been the reason that they have been able to keep the human rights advocates ag bay they have not allowed any moves in this regard let me remind you another thing 2000 is the Afghan Parliament when it was dominated by these actors of the afghan conflict they passed a bill where they issued an a blanket amnesty for all those who engaged in the civil war. In the guard to the Transitional Justice which was then contested by the human rights activists and which was a wise by the afghan President Hamid karzai that issues of at the individual level cannot have an amnesty 5 but in general the parties and the groups cannot be tried as part of the Transitional Justice so this effort has been to get and the symbolism is concerned there have been cases in the past in other parts of the world where symbolism has really then later on turned into actual action against those people who we have seen Charles Taylor being tried some others as well understood kevin in arms to them is what were seeing over this whole afghan question the for a walking talking demonstration the way that some people are saying the i. C. C. Needs more teeth it needs more judges more prosecutors more funding it needs the big powers at the United Nations to really get behind it so it can put in multiple investigations at the same time. Well i mean i think thats undeniably true the court is i think incredibly symbolically important i think its extremely symbolically important that the Appeals Chamber has affirmed the i. C. C. Is right to investigate crimes committed by the Afghan Government and even more kind of dramatically by americans but it is still fundamentally a court that is dependent upon its own resources and even more importantly the cooperation of state parties and nonstate parties and and it is really struggle because states have simply not agreed to to help it obtain evidence to you know track down perpetrators and arrest them and you know it suffers from the fact that it wasnt created by the Security Council in the same way that the yugoslav and the rwanda tribunals that it doesnt have the teeth that it needs to be effective particularly when its taking on a major power like United States and if you can washington is what were seeing as well at the moment something of a rubicon when it comes to washingtons attitude because officially if one was