A Legal Analysis of the Crime of Genocide in the Statute of the International Criminal Court and the Penal Code of Afghanistan

Mohamma Tariq Wamiq; Hussain Sharifi Ziraksar; Adul Zahir Ershad; Mohammad Abrahim Masoun

doi:10.47814/ijssrr.v9i7.3497

Mohamma Tariq Wamiq Faculty of Law and Political Science, Jami University, Afghanistan
Hussain Sharifi Ziraksar Faculty of Law and Political Science, Jami University, Afghanistan
Adul Zahir Ershad Faculty of Law and Political Science, Jami University, Afghanistan
Mohammad Abrahim Masoun Faculty of Law and Political Science, Jami University, Afghanistan

DOI: https://doi.org/10.47814/ijssrr.v9i7.3497

Keywords: Crime of Genocide; The Four Protected Groups; Rome Statute; Penal Code of Afghanistan; Material Elements of the Crime (Actus Reus); International Criminal Law; Criminal Responsibility

Abstract

Genocide is one of the most severe and catastrophic international crimes, for which the international community has envisaged specific measures in international instruments for its prevention and punishment. Article 6 of the Statute of the International Criminal Court and Article 333 of the Penal Code of Afghanistan have criminalized the crime of genocide exclusively against national, ethnic, racial, and religious groups; this has resulted in a legal vacuum regarding the protection of political and social groups and has diminished the preventive effect and efficiency of international criminal justice. The present research was conducted with the aim of providing a legal analysis of the crime of genocide in the Statute of the International Criminal Court and the Penal Code of Afghanistan. Utilizing a descriptive-analytical method and examining legal sources, cases of international criminal tribunals, and the literature of international criminal law, this study analyzes the legal framework of the crime of genocide and identifies its limitations with respect to the Penal Code of Afghanistan. The primary research question is: "To what extent do the definition, constituent elements, and scope of responsibility arising from genocide in the domestic law of Afghanistan align with the standards of international criminal law?" The findings indicate that although the Afghan legislator has generally followed the 1948 Convention and Article 6 of the Statute in the definition and instances of the crime of genocide, ambiguities and challenges persist in certain areas—including determining the scope of protected groups, precisely elucidating the mental element (mens rea), and jurisdictional and executive mechanisms—which could jeopardize the realization of the principle of legality of crimes and punishments and the efficiency of the prosecution of the crime of genocide.

References

1. Ebrahimi, A. (2011). International Criminal Law. 1st ed. Kamal-ol-Molk Publications, Iran.
2. Ardebili, M. A. (1989). "Mass Killing." Legal Journal, No. 11.
3. Bohloli, A. (2020). "Punishment for the Crime of Genocide from the Perspective of Jurisprudence and the International Criminal System." Journal of Jurisprudence and the History of Civilization, Vol. 7, No. 1.
4. Bigzadeh, I. (1997). "An Examination of the Crimes of Genocide and Crimes Against Humanity in the Statute of the International Criminal Court." Journal of Legal Research, No. 22.
5. Pourbafarani, H. (2014). International Criminal Law. 7th ed. Jangal Publications, Iran.
6. Hafizullah. (2010). International Criminal Law. Vol. 2. Mostaqbel Publications, Kabul.
7. Kittichaisaree, K. (2008). International Criminal Law. Translated by Jannat Makan. Tehran: Jangal Publications.
8. Nedai, A. (2022). International Criminal Law 2. Herat: Nedai Publications.
9. Rebut, D. (2020). International Criminal Law. Translated by Behzad Razavi-Fard and Mohammad Faraji. 1st ed. Tehran: Mizan Publications.
10. Zamani, S. Q. (2008). "The International Criminal Court and the Issuance of the Arrest Warrant for 'Omar al-Bashir'." Legal Research Journal, Vol. 7, No. 14, pp. 13-47.
11. Robertson, G. (2004). Crimes Against Humanity. Translated by the Research Group of Razavi University of Islamic Sciences. 1st ed. Mashhad: Astan Quds Razavi.
12. Mir Mohammad Sadeghi, H. (2022). International Criminal Law. 7th ed. Tehran: Mizan Publications.
13. Tahmasebi, J. (2016). The Jurisdiction of the International Criminal Court. 1st ed. Tehran: Mizan Publications.
14. Cassese, A. (2008). International Criminal Law. Translated by Zahra Mousavi Ardeshir and Hossein Piran. 1st ed. Tehran: Jangal-e Javidaneh Publications.
15. Jafari, F. (2012). "The Confrontation between Politics and Justice in the Rome Statute." Law Quarterly, Journal of the Faculty of Law and Political Science, Vol. 42, No. 3, pp. 107-126.