A Critical Analysis of the International Criminal Court: Its Significance, Drawbacks and Future Roadmap

By Ifra Jan* and Karmanye Thadani**

Introduction

One of the most important driving forces behind the decision to establish the United Nations was the prime determination “to save succeeding generations from the scourge of war, which twice in their life time had brought untold sorrow to mankind”. However, even after the formation of the United Nations, several armed conflicts and wars continue to inflict pain and suffering. In this consideration, the Humans Rights Committee during its sixteenth session in 1984 observed that “war and other acts of mass violence continue to be a scourge of humanity and take the lives of thousands of innocent beings every year”.

Generally, in situations of conflict arising from the territoriality principle, states have the power to take jurisdiction over the crimes committed within their territory, which is inherently defined under their sovereignty. However, under nationality principles, states would assume jurisdiction over the crimes committed by their nationals outside the boundaries. In the exercise of their sovereignty, states can delegate the task of trying a particular type of offence to an international body. This was done after World War II and, more recently, after the conflicts in the Balkans, in Rwanda, Sierra Leone, Timor Leste and to a less extent in Cambodia.

Before the inception of the International Criminal Court (ICC), a brief introduction to the two ad hoc tribunals, International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), is important, as this would further highlight the importance of the ICC. Firstly, the United Nations Security Council set these ad hoc tribunals in order to exercise and maintain its security and peace powers which are defined under Chapter VII of the UNSC charter (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression). Secondly, these tribunals shared their respective jurisdictions with the national courts (like the ICC as well), however, there was no mention anywhere that the decision of the tribunals shall supersede the national courts (unlike the ICC). Lastly, the tribunals only served at a specific location under a special time frame and were subjected to selective justice, which failed to transpire into the world at large, which was facing similar crises during the same time.  

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A summary of the United States – Taliban agreement (Doha Agreement) in 500 words

Qatar, Feb 29 (ANI): United States Special Representative for Afghanistan Zalmay Khalilzad and Mullah Abdul Ghani Baradar, Taliban group’s top political leader signing a peace agreement between Taliban and U.S., in Doha on Saturday. (Credits: ANI Photo)

Amidst the Taliban’s ‘takeover’ of Afghanistan and the chaos that ensued, here is a 500 word, 11 point summary of the agreement pursuant to which the withdrawal of US troops took place. Indicative of the capacity in which the US recognised the Taliban, the agreement is titled, ‘Agreement for Bringing Peace to Afghanistan between the Islamic Emirate of Afghanistan which is not recognized by the United States as a state and is known as the Taliban and the United States of America‘ (Agreement), also known as the ‘Doha Agreement’. An understanding of the Agreement is important to analyse the whys and hows of the events which unfurled in Afghanistan in the past 2 weeks.

However, before proceeding to the summary, it is important to bear in mind the following points:

  1. The US does not recognise the Taliban as a State or a State entity, as understood under international law.
  2. As per article 1(a) of the Vienna Convention of Law of Treaties (VCLT), a treaty governed by the VCLT can only be executed between States.
  3. However, the inapplicability of the VCLT does not affect the legal force of such agreements and the application of the VCLT to any of the rules therein to which such agreements will be subject to independent of the VCLT (article 3).

The Agreement

  1. The Taliban had to initiate intra-Afghan negotiations with Afghan sides from 10 March 2021 onwards, with a permanent and comprehensive ceasefire to be the most important agenda.

Part 1 (US Obligations)

  1. USA and its allies had committed to withdraw all military forces and all its coalition partners[1] within 14 months from the announcement of the Agreement (i.e. by 1 May 2021).
  2. The US had to bring down the number of troops to 8,600, with a proportional reduction by its allies, within the first 4.5 months and the then withdraw the remaining troops in the next 9.5 months.
  3. The US and its allies had to withdraw all their forces from 5 military bases within the first 4.5 months, and thereafter from all the remaining military bases within the next 9.5 months.
  4. Up to 5,000 Taliban prisoners were to be released as a confidence building measure, which included release of 1,000 prisoners by 10 March 2021.
  5. The US had to start a review of sanctions against the Taliban and also engage with other members of the UNSC with the goal to remove the Taliban (and its members) from their sanctions list by 27 August 2020 and 29 May 2020, respectively.
  6. The US and its allies had agreed to refrain from the use of threat or the use of force against the territorial integrity of Afghanistan.

Part II (Taliban’s Obligations)

  1. The Taliban, including Al-Qaida, had agreed to not ‘use the soil of Afghanistan’ to threaten the security of the US and its allies. Further, the Taliban, were to not cooperate with any such group or individuals which/who would threaten the security of the US and its allies.
  2. The Taliban had to prevent any group or individuals from threatening the security of the US or its allies and prevent them from recruiting, fundraising, training in that regard.

Part III (Mutual Obligations)

  1. The US and the new Afghan government were to maintain positive relations with each other. These relations were to be determined by the intra-Afghan dialogues and negotiations.
  2. The US and the new Afghan government were to seek economic cooperation for the redevelopment of Afghanistan.

[1] This includes all non-diplomatic civilian personnel, private security contractors, trainers, advisors, and supporting services personnel