Regarding the Submission of a Report and a Request to Initiate an Investigation to the Office of the Prosecutor: Violations Committed by Afghan Fighters in Syria Fall within the Jurisdiction of the International Criminal Court.
The Hague (20, 21, 22) November 2024 – Press Release.
Based on paragraph (2) of Article (15) and paragraph (C) of Article (13) of the Rome Statute, the Office of the Prosecutor at the International Criminal Court received a communication from the Mizan Organization for Legal Studies and Human Rights concerning cases involving Afghan fighters in Syria linked to violations that may amount to serious international crimes.
In its submission, registered on 19 November 2024, and during its meeting with the Office of the Prosecutor on 20 November 2024, Mizan relied on a set of factual elements and legal grounds to demonstrate that the substantive criteria and preconditions for the Court’s exercise of jurisdiction have been met, in accordance with Articles (5, 7, 8, 11, 12, 18, 25, 30, and 31) of the Rome Statute.
In light of Afghanistan’s ratification of the Rome Statute on 10 February 2003, and its status as a State Party since the Statute entered into force for it on 1 May 2003, and with the aim of inviting the Prosecutor to consider the facts and legal arguments presented in the communication and to initiate an investigation pursuant to Articles (53 and 54) of the Statute, the Mizan Organization outlined the background of the arrival of Afghan nationals in Syria, the establishment of the Fatemiyoun Brigade, and their participation alongside the Iranian Revolutionary Guard Corps and Hezbollahin support of the Assad regime’s forces, engaging in brutal practices that focused on targeting opposition members and civilian populations.
The communication referred to investigations and reports issued by United Nations bodies, international organizations, and Syrian organizations, documenting the involvement of foreign Shiite militias loyal to Iran in widespread and systematic practices that are likely to constitute war crimes, genocide, and crimes against humanity.
The Mizan Organization for Legal Studies and Human Rights called upon the Office of the Prosecutor to summon witnesses while respecting their privacy and ensuring their protection. The organization stated that it had heard testimonies from residents of the rural areas of Deir ez-Zor, Aleppo, Damascus, and Daraa concerning the involvement of Afghan fighters in Syria in acts including arbitrary arrest, enforced disappearance, torture, and extrajudicial killings, as well as looting property, seizing homes and lands belonging to local residents, besieging towns, destroying vital facilities, and forcibly displacing and deporting families, including women and children. They also engaged in hostile military actions using internationally prohibited weapons, while violating the principles of precaution, distinction, and proportionality under international humanitarian law.
While these serious international crimes continue to be committed by the same actors, the victims—families, children, women, and the elderly—continue to await the advancement of investigation and prosecution procedures, in order to prevent impunity, guarantee non-recurrence, and take an initial step toward their protection and redress. This is required by the interests of justice and by the very purposes for which the International Criminal Court was established, as well as by the scope of its mandate and jurisdiction.
Consideration of the communication by the Prosecutor, and the opening of a preliminary examination into the matters raised, would ultimately provide the Pre-Trial Chamber with details concerning the alleged crimes, including lists of witnesses, victims, and accused persons, as well as other information related to the incidents. A significant portion of this information is already available to United Nations investigative bodies, international and Syrian human rights organizations, the governments of States Parties to the Court, and witnesses from the affected communities.
The communication clarified that there are reasonable grounds to believe that the incidents described fall within the subject-matter jurisdiction of the International Criminal Court, as defined in paragraphs (B and C) of Article (5) of the Rome Statute, and that they amount to crimes against humanity, committed knowingly as part of a widespread or systematic attack directed against a civilian population. These crimes include intentional killing, extermination, forcible transfer of population, persecution, apartheid, and enforced disappearance, pursuant to Article (7) of the Statute.
The violations also amount to war crimes, as serious breaches of the Geneva Conventions, committed as part of a plan or policy or on a large scale, directed against protected persons and property, pursuant to Article (8) of the Statute. These crimes include wilful killing, torture and inhuman treatment, intentionally causing great suffering or serious injury to body or health, extensive destruction and appropriation of property, unlawful deportation or transfer or imprisonment, violence against life and outrages upon personal dignity, intentionally directing attacks against civilians, attacks against religious, educational, or medical facilities or historic sites, pillaging towns, recruitment of children, and the displacement of populations.
The acts described in the communication fulfill the material and mental elements of crimes, including intent and knowledge. The conduct and resulting harm confirm that these acts were carried out as part of widespread or systematic policies against civilian populations, thereby establishing individual criminal responsibility, in accordance with the Explanatory Memorandum of the Assembly of States Parties, Articles (9, 30, and 22) of the Rome Statute, and the provisions of international criminal law.
The incidents covered by the communication occurred between 2012 and 2024. They therefore took place after the entry into force of the Rome Statute in general, and after Afghanistan acceded to the Statute and became a State Party, meaning that they fall within the temporal jurisdiction of the International Criminal Court pursuant to Article (11).
The individuals suspected of involvement in the alleged crimes are nationals of a State Party to the Rome Statute, and therefore the preconditions for the Court’s exercise of jurisdiction are satisfied pursuant to Article (12) of the Statute.
Since the Court may exercise jurisdiction when the Prosecutor initiates an investigation proprio motu on the basis of information concerning crimes within the Court’s jurisdiction, and since the Prosecutor may seek information from States, United Nations organs, intergovernmental organizations, and non-governmental organizations pursuant to Articles (15 and 13) of the Statute, and based on the foregoing, the rules of admissibility, other provisions of the Statute, the Explanatory Memorandum, and the Rules of Procedure and Evidence, and in the interests of justice and the interests of victims, the Mizan Organization for Legal Studies and Human Rights calls upon the Prosecutor to:
- Examine the information and legal arguments contained in the communication and open a preliminary investigation into the incidents described.
- Request additional information from the International, Impartial and Independent Mechanism for Syria (IIIM), the Office of the High Commissioner for Human Rights, the Independent International Commission of Inquiry on Syria, as well as from States, United Nations bodies, and specialized international and Syrian human rights organizations.
- Hear the testimonies of witnesses and victims and ensure all necessary measures to protect their privacy, safety, and rights to redress.
- Collect and analyze evidence to identify the individuals most responsible for the crimes and ensure accountability and the prevention of impunity.
- Request authorization from the Pre-Trial Chamber to proceed with a full investigation in accordance with the procedural rules and the Rules of Evidence.
Finally, and with the highest degree of importance, the Mizan Organization calls upon experts and specialists in Syrian and international institutions and organizations concerned with these issues to form a joint team to follow up on the cases raised before the Office of the Prosecutor, support the communication with additional evidence, and conduct a public advocacy campaign.