The establishment of an International Criminal Tribunal to investigate allegations of war crimes, war of aggression, crimes against humanity, genocide and crimes against peace are subject to approval by the UN Security Council as an enforcement measure under Chapter VII of the UN Charter. That a plethora of evidence exists within which Russia (formerly USSR) and the United States of America are manifestly guilty of the above breaches of conduct during their prosecution of war in Afghanistan (1979-1989 and the period 2001 to present) is above question.

However, as all five Permanent Members of the Security Council must vote for the establishment of a War Crimes Tribunal, the question of justice becomes, in the case of Afghanistan, one of persuading two powerful members of the Security Council with veto power, in this case Russia, (successor and inheritor of the USSR) and the US to investigate themselves.

It will come as no surprise therefore that those governments that initiate war, promoted ethnic cleansing, and encouraged the commission of war crimes and crimes against humanity by their proxy combatants reject any useful dialogue concerning the formation of a Criminal Tribunal and or cooperation with investigators.

A case in point lies in the fact that the Russian Lower Parliament (Duma) decreed in 1996 that Russian soldiers could not and would not be held accountable for various breaches on international law pursuant to conduct while engaged in military operations in Afghanistan. Suffice it to say, the realpolitik of the matter is that alleged war criminals do not and will not facilitate their own prosecution and sentencing. Russia however is but one of two of the world’s remaining superpowers alleged to be circumventing the commission of a tribunal and therefore the application of justice for war crimes. Recently, the Obama Administration used the threat of its UN veto power to circumvent the formation of a War Crimes Tribunal and again, as with Russia, signed legislation into law immunizing members of the George W. Bush Administration from facing an inquiry, charges and or prosecution for war crimes committed during their prosecution of wars in Afghanistan and Iraq.

In the matter of Afghanistan, an observation worthy of note lies in the fact that the perpetrators (Russia and the US, once discovered, denied their crimes and or attempted to reduce them to occasional, insignificant events, or to evaluate them as the work of an individual suffering from mental fatigue or post traumatic disorder (PTSD), or to posit them as reasonable response to ‘inexcusable provocations’. Thus, this ‘homage’ to virtue,’ is in fact de facto recognition that the accused were and are in fact engaged in conduct that constitutes grave breaches of international law. Such regimes do not countenance recognition of fault, and as a consequence of military and economic power and world status, continue to benefit from long-term impunity from any national or international adjudication and thereby prosecution. Current history has shown that, even in the eventuality of negative exposure in the media, genocide and massacre are still carried out in Afghanistan, the Middle East, Chechnya, and in various locales on the African Continent. See: (Documents of the Laws of War, Adam Roberts, Richard Guelff, 2^nd Edition, ‘War Crimes,’ 1989, pp. 3, 9, 10-12,153-156, 331-337, 432, 439) 

Between 1978 and 1992, once the Soviets took direct control in Afghanistan, operational patterns (air attack) indicated a systemic effort to depopulate selected areas on an ethnic basis, i.e. the overwhelming Pashtun-populated regions, stretching from the Southwest to the Eastern Provinces, by killing hundreds of thousands and driving the rest into exile. Although all areas of Afghanistan were decimated to some degree, the treatment of civilian populations in Pashtun and non-Pashtun areas differed significantly. While non-Pashtun areas were depopulated to some degree to make them available for air bases and missile silos, overall Soviet strategy concentrated on emptying-out the Pashtun areas and thereby altering the ethnic makeup of Afghanistan in order to facilitate the integration of its strategically important territory into the Soviet system by eventual annexation into the Central Asian Republics.

“A variety of techniques were used to depopulate the predominantly Pashtun areas: Bombing reduced scores of villages to rubble while helicopters slaughtered the fleeing inhabitants. Crops were set afire at harvest time, orchards and vineyards were cut down, flocks of sheep were decimated, irrigation systems were destroyed since it was not intended for those who fled should return.” See: (The Widening Circle of Genocide, I. Charny, 1994)

Fearing legendary Pashtun resistance to invasion, this top secret strategy, codenamed Operation Kaskad, would, in the wake of the horrific carnage and depopulation, go on to recruit and incorporate sympathetic elements from the Tajik and Uzbek minority community, currently known as the Northern Alliance and thereby enlist them as a proxy militia. See: (Destruction of a Nation, Michael Barry, 1984)

As a proxy-militia, the armed bands of Ahmad Shah Massoud aided and abetted the Soviet effort to depopulate the northern environs by seizing property and forcing residents to abandon their property under threat of death. It was widely known that the leadership of the northern minority had long expressed their desire of uniting all ethnic Tajiks living in Afghanistan with those who resided in the neighboring, co-ethnic Soviet Republic and thereby establish the creation of a ‘Greater Tajikistan.’ See: (Afghanistan and Soviet Global Interests, Elie Krakowski, 1987)

Author Mike Martin in his book Inside a Rebel Stronghold, (1984), p.198, writes: “His (Massoud’s) temporary truce with the Russians had not been rescinded. His Jamiat fighters were being sent to try to take over Hezb villages beyond the Panjshir. The Russians were actually supplying him with arms so that he could try to defeat Hezb which the Russians regarded as their implacable foe. There were signs that the Soviets wanted to hand over control of north-eastern Afghanistan to Massoud’s Council of the North. Reports surfaced that the Russians were offering him weapons for such a bargain.” (Martin, p.229)  

 As regards the Pashtuns, who were singled out for ‘ethnic cleansing’ and suffered the largest number of victims, 31% of the population had been killed as a result of Operation Kaskad. See: (Afghanistan, Ending the Reign of Soviet Terror, Bruce G. Richardson, 1996,1998, 2004,  pp.51-58,)

In addition to charges of ‘ethnic cleansing’, numerous other infractions of international law await the investigators who will one day represent victim’s rights pursuant to the creation of the long-anticipated International Criminal Court. More than two-million Afghans lost their life during the Soviet invasion and occupation and therefore represent an outrageous circumvention of human rights and international law, perhaps the most egregious case yet to surface during the 20^th Century.

The ‘war on Terror’:

A growing number of international jurists have concluded that the US has and continues, to wage ‘war of aggression,’ the supreme crime under international statute against the Afghan people based on fabricated intelligence and thereby negating any lawful semblance of a self-defense posture. Yet here again, we have a powerful nation with veto power in the very halls of justice that would sit in judgment. The Americans, as with the Soviet invaders, fearing legendary Pashtun military prowess and fabled resistance, have waged war on the Pashtun community, once again recruiting from the Afghan minority community who now serve both as a supply and intelligence conduit and proxy militia.

 Professor Marc Herod of The University of New Hampshire (UNH) has assembled preliminary casualty data on the numbers of civilian deaths attributable to massive air attack proximate to dense population centers by US forces. Initial calculations put those killed in air attack since October of 2001, at more than 100,000. The use of proscribed weapons, i.e. white phosphorous, cluster-bombs, depleted uranium munitions, fuel-air-explosives, unmanned aerial drones, etc., have accounted for many of those killed. In addition to ‘war of aggression’ allegations, the use of proscribed weapons are also in serial violation of international law as well, and will undoubtedly bolster the case against the US war in Afghanistan with the advent of an International Criminal Court. See: (Documents on the Laws of War, ‘War Crimes,’ Adam Roberts, Richard Guelff, 2^nd Edition, 1989, pp. 3, 9, 10-12, 153-156, 331-337, 432, 439)

Thus, the United Nations, notwithstanding their mandate to pursue conflict resolution and their attendant recognition and protection of fundamental human rights, subverts the spirit if not the letter of the law through parliamentarian procedure and maneuvering that codifies Russia’s and the United States veto power, hence enabling member states to violate international law with impunity. While at the governmental level, external remonstrations have been limited to circumspect diplomatic expressions of ‘concern’ or ‘grave concern,’ words and phrases coined and articulated to placate public concern while maintain the status-quo in the interests of member states regarding, inter alia, dialogue vis-à-vis war reparations for the aggrieved, (which for the purpose of this inquiry means Afghanistan), and for the continued acquisition and consolidation of international market share, the exploitation of natural resources in “developing nations,” and the continuity of heretofore sacrosanct ‘spheres of influence’ predicated on artificial demarcation and or boundaries by member states. 

Victims and survivors, have the right to know, the right to justice and the right to compensation or reparation. Justice must be rendered either by national justice or by international justice when national courts cannot offer guarantees of independence and impartiality, or are physically unable to function. As a consequence, perpetrators will no longer violate with impunity, while potential perpetrators will fear retribution and refrain from committing exactions.

National legislative entities and courts of justice (as in the Russian Duma and the Congress of the United States) are as yet unable or unwilling to deal with the extraordinary magnitude of crimes committed against humanity around the world. The two International Criminal Tribunals are temporary courts (Rwanda and Bosnia) with limited jurisdiction hence the need to create a permanent International Criminal Court.  The reward of the idealists will be that some of their efforts in promoting democratic and judiciary progress will succeed, even if all their expectations are not fulfilled. The approval, in July 1998, of the statute of the International Criminal Court, complimentary to and yet independent from UN proscription and or resolution, shows that a growing number of governments and peoples are now convinced that international justice should, if not prevail over political expediency; at least play the role of a legal paradigm and moral conscience for the world’s leaders. As of this date, 119 countries, including Russia, became signatories to the Convention to become effective in the year 2000, inexplicably, United States delegates abstained from support objecting to two key points in the Statute: The prosecutor’s power to initiate investigations and the court’s jurisdiction over crimes committed by citizens of non-signatory countries. After the vote, American officials promised active opposition to the ratification of the Statute by other countries and to the eventual operations of the Court, in a cynical reversal of their earlier support for the punishment of the practitioners of genocide and war criminals, and in total contradiction to the decisive role of the US in the creation and implementation of the Nuremberg, Tokyo, ex-Yugoslavia and Rwanda Tribunals. It could therefore be reasonably argued that the uncharacteristic posture of the US reflects a growing concern over responsibility and therefore attendant litigation pursuant to their extralegal aggression against Iraq and Afghanistan.

If the United States succeeds in frustrating the concept and implementation of an International Criminal Court, undoubtedly the darker side of the spectrum is a continuation of man’s inhumanity to man with the apparent failure on the part of responsible actors to prevent, to counteract and in the case of Afghanistan, to restore. As the bloodiest century in recorded history draws to a close, the urgency of impartial justice and recognition of human suffrage during a time of war demands that we as citizens of the world support the concept, implementation and jurisdiction in the matter of the (ICC) International Criminal Court.

Bruce G. Richardson     

  

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