Conor Finnegan and Luis Martinez, “Taliban fighters executing surrendering troops, which could amount to war crimes, U.S. officials say; The U.S. Embassy in Kabul has also urged Americans to evacuate Afghanistan, Washington Post, August 12, 2021 (12:22 p.m. ET).
The Taliban, as they expand their control over Afghanistan, are committing War Crimes and Crimes Against Humanity. They must be held accountable, and prosecuted.
The law of war or international humanitarian law applies to the Taliban. Afghanistan is also a party to the Statute of the International Criminal Court, which has jurisdiction to try Taliban leaders and soldiers who order, commit, or are complicit in the commission of such crimes.
Rticles 7 and 8 of the Rome Tatute of the International Criminal Court provide as follows:
Article 7. Crimes against humanity
1. For the purpose of this Statute, “crime against humanity” means any of the follow- ing acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack;
(a) (b) (c) (d) (e)
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced steriliza- tion, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, na- tional, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts ofa similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
2. For the purpose of paragraph 1:
(a) “Attack directed against any civilian population” means a course of conduct in- volving the multiple commission of acts referred to in paragraph 1 against any civilian pop- ulation, pursuant to or in furtherance of a State or organizational policy to commit such attack;
Imprisonment or other severe deprivation of physical liberty in violation of funda- mental rules of international law;
Volume 2187, 1-38544
(b) “Extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;
(c) “Enslavement” means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of traf- ficking in persons, in particular women and children;
(d) “Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are law- fully present, without grounds permitted under international law;
(e) “Torture”, means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;
(f) “Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be in- terpreted as affecting national laws relating to pregnancy;
(g) “Persecution” means the intentional arid severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;
(h) “The crime of apartheid” means inhumane acts of a character similar to those re- ferred to in paragraph 1, committed in the context of an institutionalized regime of system- atic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;
(i) “Enforced disappearance of persons” means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political or- ganization, followed by a refusal to acknowledge that deprivation of freedom or to give in- formation on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period oftime.
3. For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not in- dicate any meaning different from the above.
Article 8. War crimes
1. The Court shall have jurisdiction in respect of war crimes in particular when com- mitted as part of a plan or policy or as part of a large-scale commission of such crimes.
2. For the purpose ofthis Statute, “war crimes” means:
(a) 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;
Volume 2187, 1-38544
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military ne-
cessity 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.
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any ofthe follow- ing acts:
(i) (ii) (iii)
Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in ac- cordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;
Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or wide- spread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advan- tage anticipated;
Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;
Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;
Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive em- blems of the Geneva Conventions, resulting in death or serious personal injury;
(viii) The transfer, directly or indirectly, by the occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this ter- ritory;
(ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objec- tives;
Subjecting persons who are in the power of an adverse party to physical mutila- tion or to medical or scientific experiments of any kind which are neither justi- fied by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger
the health of such person or persons;
Killing or wounding treacherously individuals belonging to the hostile nation or army;
Declaring that no quarter will be given;
Volume 2187, 1-38544
(xiii) Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities ofwar;
(xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;
(xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war;
(xvi) Pillaging a town or place, even when taken by assault;
(xvii) Employing poison or poisoned weapons;
(xviii)Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;
(xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;
(xx) Employing weapons, projectiles and material and methods ofwarfare which are of a nature to cause superfluous injury or unnecessary suffering or which are in- herently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;
(xxi) Committing outrages upon personal dignity, in particular humiliating and de- grading treatment;
(xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as de- fined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;
(xxiii)Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;
(xxiv)Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conven- tions in conformity with international law;
(xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding re- lief supplies as provided for under the Geneva Conventions;
(xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.
(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, includ- ing members ofarmed forces who have laid down their arms and those placed hors de com- bat by sickness, wounds, detention or any other cause:
(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(ii) Committing outrages upon personal dignity, in particular humiliating and de- grading treatment;
(iii) Taking of hostages;
(iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial
guarantees which are generally recognized as indispensable.
(d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations ofinternal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.
(e) other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, name- ly, any of the following acts:
(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conven- tions in conformity with international law;
(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in ac- cordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;
(iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objec- tives;
(v) Pillaging a town or place, even when taken by assault;
(vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as de- fined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;
(vii) Conscripting or enlisting children under the age of fifteen years into armed forc- es or groups or using them to participate actively in hostilities;
Volume 2187, 1-38544
(viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military rea- sons so demand;
(ix) Killing or wounding treacherously a combatant adversary;
(x) Declaring that no quarter will be given;
(xi) Subjecting persons who are in the power of another party to the conflict to phys- ical mutilation or to medical or scientific experiments of any kind which are nei- ther justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or se- riously endanger the health of such person or persons;
(xii) Destroying or seizing the property of an adversary unless such destruction or sei- zure be imperatively demanded by the necessities of the conflict;
(f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between gov- ernmental authorities and organized armed groups or between such groups.
3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.
Afghanistan and Tajikistan are paeries to the zrome Statute of tge Internatuinal Criminal Court.
The U.N. Security Council should consider adopting a resolution authoring foreign countries to use “all necessary means” to halt the commission of crimes against humanity and war crimes in Afghanistan bythe Taliban or anybody else.
The Trenchant Observer
The Trenchant Observer has been following Afghanistan closely since 2005, when he worked in Kabul as the Team Leader of group of six lawyers charged with advising the government on modernizing its criminal justice process to better meet international human rights standards.