 Mae'r Menedig gyda'r cyraint cyd, i gyd yn curfi'r ysgrifion, a'r cyrthynasol a'r yr ysgrifion sy'n holl o bain. Mae'r cyrthynasol a'r cyrthynasol a'r ysgrifion yn Lles, ddweud y gynghorais o'r cyrthynasol a'r cyrthynasol, a'r cyrthynasol i'r lleol i'r ddefnyddol i'r Rhafn roi, i'r cyrthynasol i'r yrhynasol i'r Rhafn, i'r cyrthynasol i'r llyw, i'n gyd, i'r llywodraeth i'r llywodraeth i'r wylen. Mae'r ffordd yn cymdeithasio'r ffordd yn ymddangos i'r pethau a fydd yn defnyddio. Rwy'n gweithio llawd ac yn ymddangos i'r adnod o'r adnod. Mae y meddwl yn rhaid o hearloedd, ac efallai'n meddwl ar gyfer y ffordd hynny, ac mae'n meddwl yn cymdeithasio'r adnod. Mae'r gwneud yn ymdweithio'r adnod o'r adnod yn ymddangos i'r adnod, ac mae'n meddwl yn cymdeithasio'r adnod, a y gallu'r adnod o'r adnod o'r adnod o'r adnod. Do nothing, we cannot pretend we do not pay the screen. We cannot pretend that we cannot feel the devil. If we recognise that we are more fortunate than others then why do we not take action to value the scales? Ignorance cannot be improved just to fight the subject, the subject is also a crime…a crime of silence. Nid ydych chi am gwybod y cyfnod. Nid ydych chi rwy'n gweld sy'n gwybod y bod yn ysgrifennu yn gweithio yr ysgolol ym yn y cyfnod. Nid ydych chi'n gwybod yw'r ddweud yw'r syniadau'r gwahanol gyda hyffordd o'r cyfnod sy'n I. Nid ydych chi'n gwybod yw'r ar hyn yn gwisio'r cyfeithio'r syniadau'r cyffordd o'r cyfnod o'r cyfnod yn ymgyrch. I do solemnly, sincerely and truly declare and affirm that the evidence I shall give shall be the truth, the whole truth and nothing but the truth. Can I have the names of the prosecution please? Good afternoon, my name is Shala Syed. I'm an actor and I will represent the people of Afghanistan in this monumental case. Thank you. And who will represent the state? Please take your place on the stand. Can I have your full name please? I will now read the charges. Prosecution versus the UK. The indictment hearing logged against the British state contains four counts. The accused is charged with various customary international criminal law violations, allegedly committed against the people of Afghanistan and others by the UK forces and their allies. And is specifically charged as follows. Count one, crime of aggression. Count two, crimes against humanity. Count three, war crimes. And count four, torture and other cruel, inhumane or degrading treatment or punishment. Definitions. Count one, crime of aggression. One, the planning, preparation, initiation or execution of an act of aggression, which by its character, gravity and scale constitutes a manifest violation of the Charter of the United Nations. Two, for the purpose of paragraph one, act of aggression means the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall in accordance with the United Nations General Assembly Resolution 3314 of the 14th of December 1974 qualify as an act of aggression. A, the invasion or attack by the armed forces of a state of the territory of another state or any military occupation, however temporary, resulting from such invasion or attack or any annexation by the use of force of the territory of another state or part thereafter. B, bombardment by the armed forces of a state against the territory of another state or the use of any weapons by a state against the territory of another state. C, the blockade of the ports or coasts of a state by the armed forces of another state. D, an attack by the armed forces of a state on the land, sea or air forces or marine and air fleets of another state. Count two, crimes against humanity. One, murder, extermination, torture, enslavement, persecution on political, racial, religious or ethnic grounds, institutionalized discrimination, arbitrary deportation or forcible transfer of a population, arbitrary imprisonment, enforced disappearance, rape, enforced prostitution and other inhumane acts of a similar character internationally causing great suffering or serious injury to body or to mental or physical health committed in a systematic manner or on a large scale and instigated or directed by a government or by any organization or group. Count three, war crimes. One, grave breaches of the Geneva Convention of the 12th of August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention. A, willful killing. B, torture or inhumane treatment. C, willfully causing great suffering or serious injury to body or health. D, extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly. E, willfully depriving prisoner of war or other protected persons of the right to a fair and regular trial. F, unlawful deportation or transfer or unlawful confinement. Two, are the serious violations of the law and customs applicable in international armed conflict with the established framework of international law including A, intentionally directing a tax against the civilian population as such or against individual civilians not taking part in hostilities. B, intentionally directing a tax against civilian objects that is objects which are not military objectives. C, attacking or bombarding by whatever means towns, villages, dwellings or buildings which are undefended and which are not military objectives. Three, violations of customary norms as per the Martins Clause. Until a more complete code of the laws of war is issued, the high contracting parties think it right to declare that in cases not including in the regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience. Count for torture and other cruel inhumane or degrading treatment or punishment. Acts by which severe pain or suffering whether physical or mental is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession. Punishing him for an act he or a third person has committed or is suspected of having committed or intimidating or coercing him or a third person or for any reason based on discrimination of any kind where such pain or suffering is inflicted by or at the indignation or of any of the consent of a public official or other person acting in an official capacity. This concludes the charges. Thank you very much. You can take your seat. There will be 26 witnesses in this case and you will see nine witnesses here before you. Eight have provided video testimony and seven have provided anonymous testimony which will be performed by actors. They will be performing it verbatim by which we mean word for word as their accounts were recorded. You will be presented with four fictionalized testimonies based on actual events which have been written by playwrights and which will be performed by actors. It will be made very clear whether it's a testimony or it's fictionalized research. We will now hear the prosecution's opening statement. The prosecution will present a formidable indictment against the defendant, the state of the United Kingdom for serious crimes, of committing the crime of aggression, war crimes and crimes against humanity against the Afghan people. At the conclusion of this case, and after you have heard all of the evidence from experts, eyewitnesses and recordings, we are confident that you will return a verdict of guilty. We shall establish beyond the realm of doubt facts which without the lived experiences of Gulwali Parsilai, Muaz Ambeg, Habib Ahmadi, Arzun Nau Bahar, Sahar, Nur, Shah and Alexandra and others who remain anonymous for their safety would have seemed incredible. We cannot deny the complexity of this case and we cannot effectively analyze the current situation in Afghanistan without looking at the history of the war on terror. And the UK's role in it. Sunday, the 7th of October 2001, following the 9-11 attacks on the United States, British armed forces entered the territory of Afghanistan bringing about death, destruction and chaos. They committed government-sanctioned acts of violence and aggression that constitute war crimes and human rights violations amounting to a manifest violation of the Charter of the United Nations all under a guise of self-defence. The prosecution questions the factual and legal basis for the US's self-defence claims and therefore the UK in its supporting role. The following excerpts relevant to our case are taken from the International Criminal Tribunal for Afghanistan on 15 December 2002, where it convened its first public hearing to try President Bush in Tokyo. 1. As per the identities of the hijackers or terrorists of 9-11, as disclosed by US intelligence agencies, 15 were from Saudi Arabia and four were from other countries such as Kuwait, Morocco and the UAE. 2. Osama bin Laden was not Afghan or a religious fighter. He was a billionaire. Recruited as an intelligence asset for the United States and other countries for many years. 3. The takeover of the Taliban militia in 1996 as a de facto Taliban government in Kabul, controlling several regions of Afghanistan, was done with the backing of the California Oil and Energy Company, UNO-KAL, with extensive military and logistic support from the United States and Pakistan. 4. Al Qaeda were not an organized military force. They were foreign fighters, recruited by covert agencies from several other countries. 5. The de facto Taliban militia were wholly dependent on the government of the United States and Pakistan and had not committed a single act hostile to the people of the UK prior to the invasion on Sunday 7 October 2001. It was said at the International Military Tribunal in 1945 which set to condemn Nazis after the Second World War. 6. The wrongs which they seek to condemn and punish have been so devastating that civilisation cannot tolerate their being ignored because it cannot survive their being repeated. 7. Here we wish to set a new standard for a state who willingly and knowingly commits the crime of aggression to be held accountable. 8. What we propose is a new theory of state wrong. 9. We propose that the United States and the United Kingdoms war crimes and human rights violations fit the scale, gravity and symbolism that the crime of aggression holds in history. As the renowned international criminal lawyer Robert Crier noted, war crimes and human rights violations can only be committed by members of the state. 10. Aggression can only be committed on behalf of a state plan or policy. 11. We therefore believe it is key for the state in its entirety to be held responsible for the crimes it commits. 12. Here Thursday, 9 September 2021, we are faced with acts committed by the United Kingdom, one of the largest international powers and we are asking for this tribunal to put their faults to rights. 13. Over the next three days, we will see how after 20 years of British occupation, Afghanistan is in a far worse position than it was prior to 2001. 14. We will hear testimony from Afghans who have been indiscriminately arrested, detained and tortured. 15. We will learn the names of Afghans who have been killed by bombings, stray bullets and targeted assassinations for no other reason other than living in their country of birth. 16. We will see how today Afghan society has been left even more fractured. 17. Those who work for British forces have been left to deal with the fallout of a 20 year plus occupation. 18. And we will not forget the women of Afghanistan. 19. The women of Afghanistan have born the brunt of a 20 year plus occupation 19. As a child, as a girl, as an orphan, as a woman, as a mother, as a refugee. 20. Take your time. Thank you. 21. She was objectified as the poster child for western invasion, used as a convenient excuse, simplified to a mere victim. 22. But the Afghan woman is a dignified warrior. 23. As an underground student, as an activist, as an artist, as a doctor. 24. As an underground teacher, as a midwife, as a housewife. 25. As a farmer teaching the other women land days while tilling her land as a grandmother. 26. And while the people of Afghanistan's monumental work begins again, 27. Maybe in this court they might find justice. 28. Her majesty's government has consistently lied to the British public about their purpose for being in Afghanistan. 29. They have failed the people of Afghanistan and they have failed the Afghan community here in the UK. 30. 20 years of British occupation, aggression and humiliation cannot be justified legally or morally. 31. After you have heard all of the evidence, we ask that you find the defendant guilty as charged on all counts. 32. Thank you. 33. Thank you, Miss Saeed. 34. This concludes the introductions. We will now begin trial session one, whenever you're ready. 35. The prosecution will now take you through international law and international criminal law. 36. We feel it is important to give you this background so that the audience and panel have a solid understanding of the crime of aggression. 37. International law is the law that applies between sovereign states. It is about one way to describe the world. 38. International criminal law is relatively new. It was shaped by the creation of international tribunals, specifically the Nuremberg Tribunal in 1945. 39. M Sherif Masuni, known as the Godfather of International Criminal Law, defined it as the convergence of two different legal disciplines, the international aspects of national criminal law and the criminal aspects of international law. 40. We will be calling two experts forward to guide us through the complexities of these laws. 41. The prosecution would like to start by calling our first witness to the stand, Professor Richard Folk. As Professor Folk is currently abroad, we request to present a pre-recorded interview. 42. Granted. 43. Would you like to swear or affirm? 44. Swear. 44. Would you please read the oath? 45. Would you like to swear or affirm? 46. Swear. 47. Would you please read the oath? 47. I do solemnly, sincerely and truly declare and affirm that the evidence I shall give shall be the truth, the whole truth and nothing but the truth. 47. Professor Folk, you are Albert G. Milbank Professor Emeritus of International Law at Princeton University and visiting distinguished professor in global and international studies at the University of California, Santa Barbara and chair of global law law department at Queen Mary University London. In 2008 you were appointed by the United Nations Human Rights Council as a United Nations special rapporteur on the situation of human rights in the Palestinian territories occupied since 1967. Is this correct? 47. Yes it is. 48. Folk, could you please tell us what your background in international law is? 49. I was a member of the faculty of Princeton University for 40 years and held a position as the Albert G. Milbank Professor of International Law and Practice during most of those years. And then after my retirement in 2001, I moved to California program of global studies, global and international studies and taught courses, mainly graduate courses in international law. 50. Do you have any experience with matters of international law in Central Asia and Afghanistan in particular? 51. I have written about these issues from an international law point of view. I haven't been involved in any legal proceedings that concern Afghanistan or Central Asia. 52. Would you call yourself an expert in the field of international law? 53. Those lengths of trying to teach and write about international law would qualify me as some sort of expert. 54. You have previously written the following. For centuries international law function mainly to give cover to conquest and related geopolitical maneuvers of dominant states while reinforcing unconditional claims of territorial sovereignty and white supremacy among the westernizing countries of Europe. Could you clarify this quote for the court and perhaps giving examples relating to Britain or the British Empire? 55. Yes, in the sense that it was not properly authorized by the United Nations, or more specifically the Security Council, it cannot be legitimately regarded as a war of self-defense. 56. The original attack on Afghanistan 2001 in response to the 9-11 attacks on the United States could be somewhat justified as retaliatory. 57. But even that is not considered by contemporary international law to be a legal use of force. 58. The general idea is that one can complain about such an attack which was not an armed attack. 59. Many people, including myself, have criticized the treatment of that mega terrorist incident as an act of war rather than as a crime. 60. It seems to me the whole subsequent history in Afghanistan and more generally would have been much more constructive from an international relations point of view if it had been treated the way terrorism had in the past been treated as a crime 51. Vindicating criminal law enforcement but not recourse to war. 52. In your view, what was the reason for this recourse to war? 53. It represented a pretext for the then leadership of the United States to project its power in the post-colonial world in a manner that upheld its conception of global security. 54. For that reason, it cast a lot of suspicion on the 9-11 events itself because there was a lot of evidence that George W. Bush and the neo-conservatives that backed his presidency were looking for a pretext 55. To use force overseas in the Middle East, in Central Asia, allies and friendly countries to help them with their effort to defend their sovereign rights. 56. But ultimately, this is a further confirmation of what I said earlier about the primacy of geopolitics. We do not live in a world in which international law fairly interpreted governs the behavior of dominant states. 57. And we are really dependent on the self-restraint and the prudent leadership of those states, which in this period following the Cold War has not been so much in evidence. 58. And the so-called war on terror, which culminated in the invasions of Afghanistan and Iraq, are expressions of this collapse of a self-restraining world order that is 59. Dependent on the prudent behavior of the leading states. And during the Cold War, that prudent behavior was partly induced by the countervailing power of the Soviet Union. 60. The collapse of the Soviet Union ironically the situation deteriorated internationally because there was no longer a clean power to offset the geopolitical ambition of the West and particularly the United States. 51. Thank you very much. No further questions. Would you like to swear? 52. It is one of the primary purposes of the United Nations. It has a long and complicated history spanning almost 100 years. 53. This current definition as found in article 8, Biss of the Rome Statute, inserted by Resolution RC Reds 6 of June 11, 2010 in Campala defines the crime of aggression as three elements are required. 54. First, the perpetrator must be a political or military leader, ie a person in position effectively to exercise control over or to direct the political or military action of a state. 55. Here we wish to make it clear that we are trying a government and all the organs that make up that government. 56. By the government we mean the British Parliament made up by the House of Commons, the House of Lords and the current hereditary monarch Queen Elizabeth II, the British government headed by Prime Ministers Tony Blair, Gordon Brown, David Cameron, Theresa May and Boris Johnson and their Cabinet Office, 57. As well as the Attorney General, the Department of Business, Energy and Industrial Strategy, the Department of Education, the Foreign Commonwealth and Development Office previously known as the Foreign and Commonwealth Office and the Department of International Development. 58. HM Treasury headed by the Chancellor of the Exchequer, the Home Office, the Ministry of Defence, Her Majesty's Armed Forces comprised by the Royal Navy and Royal Marines, the British Army and the Royal Air Force, all led by Queen Elizabeth II and the UK Prime Minister and managed by the Secretary of State for Defence. 59. Together with the Chief of the Defence Staff and the Vice Chief of Defence Staff, the Ministry of Justice formed in 2007 as well as the Office of the Lord Chancellor and the Civil Service. 60. As you can see, many people and departments were involved in the decision and act of invading Afghanistan. It is why we are deviating from the standard individual liability of the crime of aggression as established in international law. 72. The Court must prove that the perpetrator was involved in the planning, preparation or initiation or execution of such a state act of aggression. This allows decision makers to hide behind departments. However, individuals should no longer be allowed to come together as a state, commit crimes and be immune from criminal liability. 73. Such a state act must amount to an act of aggression in accordance with the definition contained in General Assembly Resolution 3314, and it must by its character, gravity and scale constitute a manifest violation of the UN Charter. 44. Our proposed theory of the crime of aggression clearly fits the United Nations Charter 24. Article 3 of the UN Charter provides a non-exhaustive list of acts that may amount to aggression. These include acts such as the bombardment or use of any weapons by a state against the territory of another state and see the blockades of ports or coasts of a state by the armed forces of another state. 45. Article 5 of the UN Charter states, no consideration of whatever nature with a political, economical, military or otherwise may serve as a justification for aggression. 46. I have a master's degree in international law in which I specialise in international criminal law. I have a PhD in law and criminology in which I specialise in the crimes of the powerful. I'm an attorney in law, qualified in New York state and a solicitor of Ireland. 47. The crime of aggression originally known as crimes against peace is effectively the outlawing of war. That's what the authors were doing when they created this rule. They made war a criminal offence. So war is effectively now illegal and has been since the early 20th century. Everyone knows this and that's why in the offence you will probably see lots of legalistic methods used for the justification as well as other methods. If we go back to the League of Nations in 1919 that was the first attempt really to ban war and we can assume that came out of World War I where the states committed to respect and preserve as against external aggression the territorial integrity and existing political independence of all members of the League. That was further solidified in the Kellogg-Brion pack of 1928 and there was more moves to outlaw wars of aggression. You probably don't need to be a deep student of history to realise how they both were a failure, both were an attempt to outlaw what was effectively what happened in World War II. After World War II aggression was first recognised as an international crime, something that could be punishable. Before that it was treaty agreements. If you went to war it would have been a violation of a treaty, a contract between states and you could complain that your contract had been violated. It was after World War II that they sought to criminalise the acts itself so that you could actually hold people and states to account. So it was first recognised as punishable at the Charter of the International Military Tribunal at Nuremberg and at the same time it was included in the Charter at the Tokyo Tribunals which are the corresponding tribunals. After World War II the UN crystallised the international law prohibition in Article 24 as you just saw against the use of force. Again this is a treaty, the Charter of the United Nations so any violation would be considered a treaty matter which is why we had to develop the crime of aggression. It was used at Nuremberg. It didn't sit well at Nuremberg because it is a crime of the state and Nuremberg was a court trying individuals and it was one of the four international crimes that we have but it wasn't continued from Nuremberg like the other crimes were. War crimes, crimes against humanity, genocide in tribunals since then and kind of was left floating as a definition but with no court that could seize it as a definition and prosecute people or states for their actions. We did get a definition in 1974 as we saw from the United Nations General Assembly which talks about aggression is the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state. So this is kind of the basis of our customary international law definition of aggression. The Rome Statute now provides an updated definition and also an avenue for individual criminal responsibility for the crime of aggression. But that is a treaty that's based on the Statute of Rome but in the background we always have customary international law which is one of the main sources of international law and the crime of aggression exists in independence in customary international law independent of any tribunal. And the definition that exists in customary international law specifically for our purposes here focuses on the state and not on individuals. So centrality of the state was quite key to begin with. What are the issues now with having only individual responsibility? Well there are a few problems I suppose with having individual criminal responsibility and for me the basis of it is an understanding of the nature of these crimes. These are organizational crimes. They are not crimes committed by one or two individuals which are sometimes referred to maybe as bad apples when we talk about war crimes. But it requires a system, it requires institution, it requires large numbers of people and organizations to carry out these crimes. So to focus on individuals I think misses the nature of the crime itself. It's the institution's cabal of politicians, it's groups and to use an example if we think about the final solution from the Holocaust. Historians have spent a lot of time doing amazing work trying to find out whose idea was this or who agreed to this or who authorized it. And we have some studies of the one as a conference in which it's actually quite difficult to nail down the individuals responsible. But it will be tried to say that the state of Nazi Germany didn't come up with this policy. And I think that's a good example to show how it's the state apparatus that we need to focus on, not trying to find the individuals responsible. Because sometimes it's very difficult, not only is it, I don't see a value in it, I think it's extremely difficult to do. How do you get access to those documents that say, you know, X said that this is what we should do. I think it's very difficult from a practical point of view as well. And that has all kinds of connotations that leads on to seeking justice later on. And what's the biggest hurdles in trying to state crimes? Access is one of the biggest hurdles, there are many hurdles, but access can be a huge hurdle. How do you find all these documents that are normally systematically destroyed or not recorded? Or decisions are made in such a way that it's a defused decision process so that nobody can be pointed out as having made those decisions. And political will is a problem, international criminal justice relies upon leaders, relies upon people to stick their necks out and make the cases for these prosecutions and push for these prosecutions. And that's the kind of political will that we haven't seen over recent years and decades. And one of the main obstacles to prosecuting these types of crimes is sovereignty. States are sovereign, they can do what they please and no other states can tell them what to do. That is the pure form of sovereignty. We know in today's world that there are dictates of consciousness. There are international norms that states actually do have to follow and we struggle to create mechanisms in which to enforce this. But nevertheless there are those norms. So the crime of aggression came into effect quite recently through treaty law in the Rome Statute. What does this mean for all the crimes committed before that point? So the question I think is what is the effect of having a crime entered into the Rome Statute after some of the behaviour and some of the acts which this tribunal will cover. And I think I would go back to what I said earlier that the insertion into the Rome Statute isn't the creation of this crime. It's the creation of the mechanism to prosecute individuals for this crime. The crime existed well before that. As part of customary international law we can go back at least 100 years to the League of Nations. But if pushed I think we could find evidence to go back even further to show that war was considered a crime. So yes if you were going to try individuals for this crime under an international jurisdiction we might have a problem of retrospectively applying this new definition as inserted into the Rome Treaty. But I don't think that's a problem when we consider international customary law always had this crime at least the last 100 years. And therefore we can pull from that in order to prosecute states. And it's always been states in international customary law that hasn't been individuals. So it actually for the purposes of a tribunal like this I don't see any legal problem with applying customary international criminal law and applying what was called the crimes against peace but is now called the crime of aggression. Thank you for your time for further questions. Thank you. Thank you Dr McManus. Do the panel have any questions? OK thank you. You may return to your seat. Thank you. This concludes trial session one. We reconvene at 5pm to begin trial session two which will look at the historical background in Afghanistan leading up to 2001. We will hear evidence from the prosecution and testimony from Manera Hashemi and Gawali Pasolai. Thank you very much.