At least six Afghan, or Afghan-Dutch, citizens have been investigated for war crimes and torture in Afghanistan by the Dutch authorities. Two were found guilty and received prison sentences, one was acquitted, one died during the investigation, one was investigated but released due to insufficient evidence, and the sixth is still under investigation. All were military officials belonging to the People’s Democratic Party of Afghanistan (PDPA) which governed Afghanistan from 1978 to 1992. The trials were conducted based on the principle of universal jurisdiction, which allows national courts to try the gravest crimes, even when they allegedly took place in another country. AAN’s Ehsan Qaane provides details about the identity of the six, the allegations against them, context about the PDPA’s era, as well as analysis about the significance of these trials for victims (with input from Thomas Ruttig and Rachel Reid).Photographs of some of the 5,000 victims forcibly disappeared by the PDPA government placed close to Pul-e Charkhi prison in Kabul where many mass graves have been discovered. Information about these victims has emerged as a result of Dutch investigations into war crimes and has brought solace to family members. Photo: Maina Abbasi/ December 2016
- During its 14 years in power, the PDPA used torture and forced disappearance (when the state or another body detains a person and gives no acknowledgment of their whereabouts of fate) and intentionally killed civilians – all war crimes. After the fall of the regime, some former PDPA officials sought asylum in the Netherlands.
- The Dutch authorities, not wanting to be a safe haven for war criminals have been active in pursuing investigations, including, since 2005, six former PDPA officials resident in the Netherlands: four from the intelligence service, one from the army and one, who is currently under investigation, who held leadership positions in Pul-e Charkhi prison. The authorities did this based on the principle of ‘universal jurisdiction’, whereby some crimes are considered so heinous they can be tried anywhere.
- During the investigations, the Dutch authorities faced several severe challenges, including insecurity in Afghanistan where the crimes took place, the distance between the crime scenes and the Dutch prosecutors’ office and the time that had elapsed since the crimes were committed – more than twenty years.
- As the result of the investigations, two perpetrators were sentenced to jail. Evidence important to some victims’ families was also published for the first time, a list of around 5,000 victims who had been forcibly disappeared, which came to be known as the ‘death list’. Many families learned of the fate of their relatives for the first time.
- While impunity and amnesties still hold in Afghanistan, the work of the Dutch prosecutors is a sharp reminder to the government and human rights advocates in Afghanistan of how much work still needs to be done in the documentation of past crimes. There is also a growing sense of urgency about this work, given the time passing.
The (alleged) perpetrators: who are they?
When the communist PDPA regime fell in 1992, many of its officials fled Afghanistan. According to two Dutch prosecutors interviewed by AAN, “a large number of PDPA members and… a large number of their victims” came to the Netherlands as asylum seekers. This bias in the population of Afghans in the Netherlands, they said was the reason why, so far, only former PDPA officials have been investigated for one crimes and not alleged war criminals from among the mujahedin or Taleban or other groups. Other nationalities have, however, also been investigated. (1)
So far, all six of the PDPA officials to be investigated in the Netherlands for crimes committed in Afghanistan were former military officials. Most PDPA members, from both its rival factions, Khalq and Parcham, admitted to their crimes during their interviews with the Immigration and Naturalisation Service (IND), in order to highlight the risk to their lives in Afghanistan if they were returned. The information given in these refugee applications and interviews was provided under conditions of confidentiality, but because of the serious nature of the potential crimes described, the Dutch immigration services passed information onto the Dutch police and prosecutor’s offices (more on which later) and they decided to investigate the six.
The information for this despatch was mainly collected from the Dutch courts’ online files, interviews with prosecutors and interviews with four Afghan-Dutch citizens living in The Hague. Two of these citizens were in prison in the 1980s and have followed the judicial proceedings in the Netherlands closely. The full names of the perpetrators were not mentioned in the courts’ files; they were given to AAN by other sources.
Details of the six cases are given below. Several worked for the state intelligence agency which went through several names in the early years of the PDPA regime: Department for the Protection of Afghanistan’s Interests (De Afghanistan de Gato Satelo Edara, AGSA), established immediately after the coup; Workers Intelligence Agency (Kargari Istikhbarti Muassisaas, KAM), established after Amin’s coup in September 1979 and; State Intelligence Agency (Khedamat-e Ettela’at-e Dawlati KhAD) established with KGB help immediately after the Babrak coup in December 1979.
KhAD was divided into two directorates; the Military Intelligence Service, or MIS and the Civil Intelligence Service or CIS. Each of the directorates had its own detention facilities and interrogation units. Based on victims’ and eyewitnesses’ statements (including some former KhAD employees) submitted to the Dutch authorities, the torture of detainees and prisoners was systematic and widespread. The torture practices of the Civil Intelligence Service were said to be harsher than those of the Military Intelligence Service, though both committed abuses.
After President Karmal from the Parcham faction took power in late December 1979, the practice of forced disappearance abated. However, the practices of arbitrary arrest, torture and extrajudicial executions continued till the end of Dr Najibullah’s presidency (1986 to 1992), with the Afghan intelligence service agency leading the persecution of opponents of the revolution or members of the Khalq faction.
1. Hesamudin Hesam (Parcham)
Role: Between 1983 and 1990, Hesam was head of the Military Intelligence Service (MIS) of the KhAD intelligence agency and Deputy Minister of State Security.
Dutch investigation: Hesam was investigated for being a co-perpetrator of the torture of three people, in breach of the laws and practices of war.
Outcome: Sentenced to 12 years imprisonment in October 2005. Released in 2015. Still resident in the Netherlands.
2. Habibullah Jalalzoy (Khalq)
Role: Head of the Interrogation and Investigation Department of MIS from 1979 to 1989 and worked under the direct command of Hesam from 1983 to 1989.
Dutch investigation: Jalalzoy was investigated for being a co-perpetrator of torture. His trial ran in parallel to Hesam’s.
Outcome: Sentenced to nine years in jail in 2005. He is believed to still be resident in the Netherlands.
3. Abdullah Faqirzada (Parcham)
Role: Police officer and deputy to Hesam in the Military Intelligence Service (MIS) of KhAD from 1979 to 1989.
Dutch investigation: Faqirzada was investigated for involvement in torturing detainees.
Outcome: Released in 2007 due to insufficient evidence.
4. Amanullah Osman (Khalq)
Role: Head of the Interrogation Department of the Afghan intelligence service, the AGSA.
Dutch investigation: Osman was investigated for the commission of torture, and for his involvement in the disappearance and execution of thousands of Afghans, relating to the so-called death list, list of prisoners who were sent for execution without notifying their families (more on which below).
Outcome: Osman died in 2012, just before he was due to be arrested and charged by the Dutch police.
5. Sadeq Alemyar (Khalq)
Role: Commander of the 444 Commando Unit of the Afghan army from 1978 to 1979.
Dutch investigation: He was investigated for potential involvement in the Kerala massacre in 1979 in which hundreds of Afghans were killed and buried in mass graves.
Outcome: Alemyar was released in 2017 due to insufficient evidence.
6. Abdul Razaq Arif (Parcham)
Role: Arif served in three different positions in the Pul-e Charkhi prison from 1982 to 1987, first as head of the KhAD political unit in the prison, then a deputy to the general director, and finally as general director.
Dutch investigation: Arif was arrested in November 2019 on charges of committing torture and war crimes.
Outcome: Awaiting trial.
Before we turn our focus to the investigations and trials against these six men, here first is a brief overview of the early years of the Afghan conflict during which the crimes under investigation were perpetrated.
The dimensions of the conflict (1978 to1992)
The People’s Democratic Party of Afghanistan (PDPA) took power in April 1978 in a military coup d’état, with four men succeeding each other as president: Nur Muhammad Tarakai (1978 to 1979), Hafizullah Amin (1979), Babrak Karmal (1979 to 1986) and Dr Najibullah (1987 to 1992). (2)
The conflict between 1978 and 1992 had three dimensions with the PDPA government at the centre of all. The first and most significant source of resistance for the new government came from the Islamist tanzims (political-military groups) and their external supporters. Opposition also came from non-PDPA leftist groups and finally, there was also a long-running internal dispute between two PDPA factions, Khalq (People) and Parcham (Banner). All of these groups, excluding the non-PDPA leftist groups, subjected members of rival groups to torture and war crimes.
a) Intra-Party Conflict
Two months after the PDPA captured power in April 1978, inter-factional conflicts broke out. (3) The Khalq faction, which had more support in the army and the police, soon sidelined Parcham and, in effect, took power by itself. Its reign lasted until December 1979, when Parcham came to power as a result of direct military intervention by the Soviets, which toppled the Khalqis.
Both factions, when in power, subjected members of the opposing faction to imprisonment, torture, execution and forced disappearance. Under the Khalqi government, thousands of Parchamis were jailed, categorised as ‘counter-revolutionaries’, along with other opponents – royalists, Maoists, Islamists and others. Unknown thousands were disappeared (see AAN reporting here and here).
When the Parchamis took power on 25 December 1979, they released most of the estimated ten thousand political prisoners held by the Khalqis, including prominent mujahedin leaders such as Abdul Rab Rasul Sayyaf and leading intellectuals such as Amin Farhang (later a minister under President Hamed Karzai) and historian Muhammad Hassan Kakar. However, they killed the Khalqi President Hafizullah Amin and some of his family members, and incarcerated the surviving Khalq leadership.
Some of those in jail who had been particularly close to Amin were executed in 1980. Radio Kabul reported on 8 June 1980 the executions of ten loyalists, including Amin’s brother Abdullah Amin, who had led the intelligence service, AGSA, and Muhammad Aref Alemyar who was reported as having headed a state-run transport company (probably the Afghanistan Soviets Transportation, AFSOTR). A second group of three ministers was executed on 14 June 1980, according to Radio Kabul, including Sediq Alemyar, Amin’s Minister of Planning and a brother of Aref Alemyar; Muhammad Zarif, the governor of Kandahar province and later Minister of Communications and Saheb Jan Sahrayi, the Minister of Tribes and Borders Affairs.
Those executed were said to have been found guilty by a revolutionary or special tribunal for their involvement in the “crimes of Hafizullah Amin and his regime” and “crimes against the Afghan people,” such as “torturing and killing thousands of Afghans” (see here and here). These trials, if they were held at all, were not public, and the news of the executions only came after they were carried out. Other leading Khalqis were sentenced to long prison terms and only released under President Najibullah’s ‘policy of national reconciliation’, most of them in 1988.
b) Persecution of members of the anti-regime resistance
From the beginning of its rule, the PDPA government was opposed by a large number of Afghans around the country. Most eventually joined one of the seven main Sunni Islamist military-political factions (tanzims), supported by Pakistan’s military regime (and indirectly by Saudi Arabia, the United States and others) or eight Shia tanzims, supported by Iran; without such membership, access to funding and weapons was difficult. The fighters called themselves mujahedin, fighters in a jihad. They aimed at toppling the communist government and after, the Soviet invasion, freeing the country from occupation and establishing an Islamic government. The mujahedin continued their fight till the Soviet Union withdrew its troops from the country in 1989 and the PDPA government collapsed in April 1992, but subsequently failed to establish a united government as they started a new inter-factional war between themselves (this report does not cover war after 1992 but you can read about it here).
In addition to the mujahedin, some Afghan leftist groups were among the resistance. Most originated in the 1960s Maoist Sazman-e Jawanan-e Mutaraqi (Progressive Youth Organisation), better-known as Shola-ye Jawed, that later split into various groups. Some set up military fronts in several parts of the country to fight the PDPA regime. Others challenged the government and the presence of the Soviet Union in Afghanistan by political means. Excluded from Pakistani support, some Maoists joined a mujahedin tanzim, while others were targeted by the Soviets and the Kabul government as well as mujahedin tanzims. Those who survived independently had little military impact beyond 1981/82, but were still systematically hunted down (more background here).
For the government, however, all opponents were cast as agents of religious fundamentalist and imperialist countries. It arrested, tortured and executed thousands of members of the resistance, as well as non-active Afghan citizens, accusing them of acts ‘against the revolution’.
The government’s main instrument for persecuting its various opponents was the country’s intelligence service and those in charge of Afghanistan’s largest jail, Pul-e Charkhi; the Afghan army was also an important part of the government’s machinery of suppression.
Many allegations of war crimes have also been attributed to some of the mujahedin tanzims, an area not covered by this report because, so far, only former PDPA personnel have featured in Dutch war crimes investigations. (4)
Universal jurisdiction and international justice
The prosecution of war crimes under international law by national courts is based on the principle of universal jurisdiction, which holds that even if crimes are committed in another country, even those committed by foreigners or against foreigners, they can be so grave that accountability is a matter of concern for humanity as a whole. The application of universal jurisdiction is a growing trend in Europe, including in Germany, France, Sweden, Denmark and the United Kingdom, and has also been applied in the United States and Canada. (5) In 2018, there were 60 universal jurisdiction cases in 16 countries, involving 140 suspects, according to Trial International. In recent years, crimes by Syrians who have come to live in Europe have been a particular focus of war crimes investigations, with at least 13 trials in four countries. In addition to the Afghans investigated in the Netherlands, Faryadi Sarwar Zardad, an infamous Hezb-e Islami commander, was convicted in 2005 in the United Kingdom of hostage taking and torture committed in Afghanistan. He was sentenced to 20 years in jail and released and deported to Afghanistan in December 2016, after serving ten years (see AAN’s reporting about his case here).
Universal jurisdiction cases are distinct from the International Criminal Court (ICC), though both apply international law (and the ICC happens to be based in the Netherlands). On 5 March 2020, the ICC appeals judges authorised the Office of the Prosecutor of the court to open its full war crimes investigation in Afghanistan (see here for AAN’s reporting).
The Netherlands recognises that it has an international obligation to punish the perpetrators of torture and core international crimes, like genocide, war crimes and crimes against humanity. This obligation springs from being a signatory to the four Geneva Conventions, the United Nations Convention against Torture, the Convention on the Prevention and Punishment of the Crime of Genocide, and from international customary law. The provisions of these international treaties and customary law have been incorporated into Dutch laws, including the Anti-Torture Act and the Criminal Law in Wartime Act.
Triggers for the Dutch investigations
a. Asylum interviews
The Dutch Public Prosecution Department was first alerted to the presence of potential Afghan war criminals in 2000, when the Dutch Immigration and Naturalisation Service (IND) shared information about asylum seekers whose applications were rejected on suspicion of their involvement in what it called “serious crimes.” This information was the trigger for the investigations against Hesam, Jalalzoy, Faqirzada and Osman.
This use of information from asylum-seeking interviews was strenuously opposed by Hesam, Jalalzoy and Faqirzada’s defence lawyers who argued that the information provided in their asylum interviews was confidential, and not meant to be used as evidence in criminal proceedings against them. They said that the Dutch immigration service had violated their clients’ right not to self-incriminate (the Nemo Tenetur principle), which is banned by Article 6 of the European Convention on Human Rights (ECHR). The judges, however, have consistently rejected this objection, citing among other things Article 1F of the UN Convention on Refugees, known as the exclusion clause. (6) This stipulates that individuals who have perpetrated “serious crimes” including war crimes, and have not been held accountable, shall be excluded from refugee protection privileges (see here for more details).
During his initial interview with Dutch immigration officials, Hesam had openly shared his professional background, and confessed to have tortured prisoners during his work with the PDPA government, as part of his claim to asylum.
According to the Afghanistan Justice Project (AJP), Hesam had command responsibility over MIS, and before becoming the head of MIS, “was the chief of intelligence division 17 in Herat.” According to the Dutch courts’ judgement, for a time while he was at the Ministry of State Security, he also had a supervision role and ‘effective control’ over the Civil Intelligence Service of KhAD.
Investigations were launched against Hesam and Jalalzoy in parallel in December 2003, with both men brought to trial, and then convicted in October 2005. Dutch investigators heard from around 20 witnesses to prepare the cases, in Afghanistan and Europe. Witnesses recounted the use of electric shocks, beatings, exposure to extreme cold, stress positions and sleep deprivation.
The indictment against Hesam had three counts, first that he co-perpetrated “violence against seven victims,” which breached “the laws and practice of war in the period of 1 January 1982 up to and including 31 December 1988.” The second one was that he tortured two victims as a “co-perpetrator in Kabul in the period of 1 November 1989 up to and including 31 December 1990.” The final one was that he allowed his subordinates to commit “violence against two victims” in a way that violated “the law and practices of war” in the period of “1 October 1985 up to and including 31 December 1988.” He was acquitted on the first count and found guilty of the second and third counts. One of the victims said in his witness statement against Hesam that:
I often had to bend over and stand in that position for long periods of time, or I had to stand on one leg with my hands against the wall. Once, I even had to stand on one leg for forty days in a row. …The worst torture I had to endure was being exposed to electric current. A number of times, they put electric wires into my mouth and switched on the current. …Worst of all was when they applied electric wires to my genitals. That was excruciatingly painful. In November and December, the coldest months in Afghanistan, I had to stand outdoors in the snow, naked, from dusk till dawn…
Hesam was sentenced to 12 years in prison. His lawyers contested the verdict, but appeals were rejected by the Appeal Court in January 2007 and by the Dutch Supreme Court in July 2008 (judgements here). He was released in 2015 and given leave to remain in the Netherlands.
Like Hesam, Habibullah Jalalzoy’s asylum plea was rejected in July 2000 based on Article 1F of the UN Refugee Convention. During his initial interview with the Dutch IND, he was also open about his past offenses, something which ultimately lead to him being investigated.
Jalazoy was the head of the Interrogation and Investigation Department of MIS from 1979 to 1989, and worked under the direct command of Hesam from 1983 to 1989. He was accused of torturing suspects individually and/or as co-perpetrator.
According to the Dutch courts’ judgement, the judges stated that he had been found “guilty of war crimes and torture in Kabul… during the period of 1 July 1979 to 31 December 1989.” According to the appeals court, he committed “physical acts of violence and cruel and inhuman treatment and torture with regard to persons who (at the time) were not directly participating in the hostilities,” against three victims. The judges also said (original translation):
His victims were, for instance, kicked and beaten. A number of the victims had electric wires attached to their bodies after which they were subjected to electric current through these electric wires. One victim had his toenail pulled out whereas another victim was pushed to the ground in such a fierce manner that his back almost broke.
Jalalzoy was sentenced to nine years in jail in 2005 for torture and other crimes. Upon release he was given leave to remain in the Netherlands.
Faqirzada was arrested in 2006, having initially fled Afghanistan to the Netherlands in 1994. His asylum application was rejected by the IND due to his suspected involvement in the commission of war crimes in Afghanistan.
Faqirzada served in the Military Intelligence Service (MIS) of KhAD as both a police officer and a deputy to Hesam from 1979 to 1989. According to the Afghanistan Justice Project (AJP), quoting Habibullah (a witness), “he was the operative deputy and was carrying out the orders and actually conducted the programme for arresting and torturing them. He was so cruel; he was known as ‘Cobra Snake’ [mar-e kubra].” One of his jobs was also to have an eye on Khalqis who were working in MIS, as stated in the court’s verdict. According to Aziz Rafiee, a civil society activist in Kabul who met Faqirzada in the past, Faqirzada was later appointed governor of Kunduz province after his time in the MIS, and served in this position until the collapse of the Kabul communist government in April 1992.
The indictment against Faqrizada involved two counts of torture based on sections 8 and 9 of the Dutch Criminal Law in Wartime Act. (7) However, he was acquitted by the Hague District Court in 2007, and by The Hague Appeals Court in 2009. The appeals judges provided several reasons, including contradictory facts by witnesses and victims, no proper verification of the identities of some witnesses (they were examined only by phone), miscommunication between the examining officers, interpreter and witness and finally taking into “account of the fact that several witnesses stated that they had been subject to threats, intimidation or pressure from third parties [no further explanation of this was given].” It is clear that there had been serious mistakes by the prosecutors and investigators.
After his acquittal, Faqirzada returned to Afghanistan and was given a government position, according to two interviewees (AAN was not able to verify this).
The trigger for investigating Amanullah Osman, Sadeq Alemyar and Abdul Razaq Arif, were each unique.
b. The logbook and the death list
With regards Osman, while he had first come to the attention of the Dutch authorities after admitting to crimes during his asylum interview, it was in 2010 that an investigation was started by the International Crimes Unit of the Dutch police after they became aware of a logbook which contained Transfer Orders for around 670 Afghan detainees. The detainees listed had been moved from local security detention centres to other jails around the country, from where they later disappeared. The logbook contained Osman’s name and signature as the person in charge of issuing the transfer orders (for more details, see here). The list was published in Pashto by Afghan historian Mirwais Wardak in 2000-2001. Wardak later gave the Dutch police the original documents.
Osman was investigated for the commission of torture and for involvement in the disappearance and execution of thousands of Afghans. He died in 2012, just before he could be arrested and charged by the Dutch police.
Another windfall for the investigators came from the so called death list, which contained the names of around 4,700 Afghans who were executed between 1978 and 1979. The list were given to the Dutch investigators by an Afghan woman who had originally been given it by UN Special Rapporteur on Human Rights in Afghanistan in 1986, Professor Felix Ermacora.
As AAN reported in 2013, the publication of the death list was the first time many people had confirmation that their relatives had been killed. The list, we also wrote, also revealed how the authorities of the time categorised their victims:
They [the victims] were schoolchildren, students, teachers, mullahs, policemen, farmers, nomads, the owner of a laundry business, a man working in the tourism department, a clockmaker. They were condemned as rebel, counter-revolutionary, Ikhwani, Maoist, royalist, Khomeinist, follower of President Muhammad Daud (himself murdered in the coup) or of Sufi leader Muhammad Ibrahim Mojaddedi.
Osman was implicated by these ‘list’. After he died and his case was terminated, the Dutch National Prosecutor’s Office published the original Dari list with its English translation, “to let the victims’ families know about the fate of their disappeared beloved members.”
The death list are thought to represent only a fraction of the total numbers of missing people. The UN’s Conflict Mapping Report (available here) estimates that between 50,000 to 100,000 persons were arrested, tortured, executed and/or disappeared in this period of time.
c. Complaint to the United Nations
The investigation against Sadeq Alemyar began in quite a different way, after a group of Kunar residents, led by a former mayor of Asadabad, submitted a criminal complaint to the UN Secretary General in 2006 about the Kerala massacre. Direct complaints to the United Nations are unusual, and generally viewed as a process of “last resort,” which can be attempted only after all national avenues for justice have been exhausted.
Alemyar was the commander of the 444 Commando Unit of the Afghan army from 1978 to 1979. In the complaint, Alemyar and some former military and civilian officials were accused of being responsible for the Kerala massacre. The massacre was one of the worst in Afghan history. It took place on 20 April 1979, when between 600 to 1,200 civilians were killed and buried in four mass graves in the village of Kerala just outside Asadabad. (8)
The complainants’ actions brought Alemyar at the attention of the Dutch authorities, and in 2008, the International Crimes Team of the Dutch police commenced an investigation into Alemyar under the authority of the Netherlands National Prosecutor’s Office. During the investigation, he acknowledged that he was in command of Commando Unit 444 at the battle of Asadabad on 19 and 20 April 1979, but denied being any involvement or being present at the place and time that the massacre occurred.
In October 2015, he was arrested in Rotterdam where he was living with his family. During the investigation, prosecutors interviewed residents of Asadabad, former mujahedin members, former members of PDPA as well as former soldiers. However, the prosecutors were unable to find sufficient evidence to prove his involvement in Kerala massacre and closed the case in 2017. The Dutch National Prosecutor’s Office announced that victims and anyone concerned had the right to appeal before a court (more details here). So far, no one has appealed.
d. Reported to Dutch authorities
Finally is the ongoing case against Abdul Razaq Arif, a former director of Pul-e Charkhi jail. The investigation against Arif began in 2012, after he was reported to the Dutch police by an Afghan-Dutch citizen. AAN spoke to four people in the Netherlands about the case, including two former Pul-e Charkhi detainees and two Dutch prosecutors.
The interviewees asserted that Arif served in three different positions in Pul-e Charkhi prison from 1982 to 1987, First, he was head of KhAD political unit in the prison, then deputy general director (rayes-e umumi) of the prison and finally its general director. He went to the Netherlands in 2001 and applied for Dutch citizenship under a false name and giving a false occupation. A common understanding among three different interviewees that he had had faked his name by adding a dot above the first letter of his last name, turning Arif (عریف) into Gharif (غریف), or Rarief in the Dutch transcription.
Arif was arrested on 12 November 2019. He was 73 years old at the time, and had been living in the city of Kerkrade in the Netherlands with his wife and two children since 2010. (His name is not mentioned on the Dutch prosecutor’s website; AAN obtained it from interviewees).
According to the prosecutors, they have 20 to 25 witness statements which they believe provide sufficient details to confirm that Arif worked in three positions at the prison, but so far “there is insufficient evidence to prove from which year to which year he was in each of those positions.” The submissions were made by victims and former employees in the communist government, including a relative of President Amin, the second PDPA president. “Victims, witnesses and whoever has evidence against him,” prosecutors told AAN, “still have time to share information and evidence either with the Dutch police or the Dutch International Crimes Investigation Team.”
Assuming that sufficient evidence is established, Arif’s trial is unlikely to begin for several months. According to the prosecutors, they will not be able to submit Arif’s case to the district court of The Hague before July 2020. The judges will then need time to check the accuracy of the evidence before holding the first session of the hearing. Checking the evidence would also take a few months; “Maybe the judges would have the first hearing in January 2021,” the prosecutors said. At present Arif is being held in custody, something which has to be re-approved every 90 days (it last occurred on 19 February 2020). Given the potential time before his trial, the judges will only keep him in custody throughout the investigation period if they believe he might flee the country.
Investigation challenges: time, memory and conflict
Although there is no statute of limitations for trying war crimes in the Netherlands, any investigation into historical crimes is challenging. (9) In the case of these six men, there was an interval of more than twenty years between the time the crimes occurred and when the investigations began. All of those who were investigated were over 60 years old at the time of the investigation. It can be assumed that victims and witnesses are also around the same age. Over the course of twenty years, details such as dates and names can become blurred, which could affect the credibility of the victims’ and witnesses’ statements. In at least two of the six cases (Faqirzada and Alemyar), there was a lack of sufficient evidence in the witnesses’ statements to draw the nexus between the allegations and the acts of the suspect.
In Faqirzada’s case, the judges of The Hague District and Appeals Courts cited the unreliability of witness statements as one of the reasons behind their decision to acquit:
[T]he Court has paid particular attention to the individual circumstances relating to the various witnesses, including the reliability of their statements. In this connection, the Court of Appeal would begin by noting that partly as a result of the passage of time, the limits of memory are obvious. In addition, judging from general experience, it is not implausible that the memories of the various witnesses may have been adversely influenced as a result of the events they underwent, which must have been highly traumatic for some. More generally, the same applies to the witnesses’ powers of observation.
This challenge is compounded by the stark lack of publically available documentation of the crimes of this era. The Afghanistan Independent Human Rights Commission (AIHRC), the United Nations Assistance Mission for Afghanistan (UNAMA) and the Afghanistan Justice Project have each written a mapping report. All three covered the period from 1978 to 2001. The AJP report is fully accessible and published here; it cites secondary sources and used new, primary research. The AIHRC’s report is believed to be the most comprehensive, since it covered all provinces and contained a great deal of primary research, but it was never published, following its finalisation in 2013; Karzai refused to back its publication and although Ashraf Ghani, when he was running for president in 2014, said it should be published, he has never acted to do this. The UN’s report, which drew on secondary sources, was published on its website but removed after a few hours (a copy of the report was, however, cached and can be read here).
The Dutch judges highlighted the wider lack of documentation:
In addition, it has been established that written Afghan sources are only accessible and available to a limited degree. The Court of Appeal was not able to establish conclusively the status and authenticity of all available written documents. In this connection, the Court of Appeal would note that the available written documents have only been used as evidence where they are corroborated by other evidence.
Geography and security was another challenge which limited access to witnesses. According to the judgments, investigators and prosecutors did travel to Afghanistan and Pakistan to interview witnesses, but their ability to move around Afghanistan was limited by insecurity. Travel to almost half of the country was impossible due to the presence of insurgent groups. For example, in Alemyar’s case, the prosecutors reported that they could not travel to Asadabad where the Kerala massacre happened. Limited financial resources are also a factor for the Dutch authorities, which restricts their ability to bring multiple witnesses to the Netherlands.
These limitations only added to the challenge of a cultural gap which the prosecutors said they kept trying to bridge. In the absence of direct and deep communication with witnesses and Afghan experts, it was difficult for the prosecutors to understand the very different political, social and historical context in Afghanistan. This was a point made by the Dutch judges in Faqirzada’s case:
[T]he events in the indictment, if proven, took place in a country that displayed – and still displays – little resemblance to Dutch society in terms of political, cultural and socioeconomic factors, and one that was and still is in the throes of internal divisions relating to profound political, religious and ethnic disputes and (associated, in this case) armed conflicts. Added to this is the fact, which may be assumed to be general knowledge, that the structure of Afghan society, with its great diversity of ethnic groups and interests that do not always coincide with them, is enormously complex. These and other factors in particular, as has become clear, impeded the investigation in these criminal proceedings to a greater or lesser extent. One of these factors is the lack of security in Afghanistan that persists to this day, which in some cases made it difficult to question witnesses there, in the presence of legal counsel, and to proceed with the investigation.
The importance of investigations for Afghanistan and the Netherlands
As the Dutch judges made clear in their decisions, the Netherlands does not want to be a safe haven for suspects of such serious crimes. In keeping with this approach, the Dutch government has denied citizenship to many alleged criminals, including Afghans such as Fazal Haq Khaleqyar, who was prime minister under Dr Najibullah from 1990 to 1992, and who died in 2004 in the Netherlands. Some Afghans who were denied citizenship left the Netherlands and either returned to Afghanistan or went to other European countries that have a softer approach to war crimes suspects. Among those who returned to Afghanistan is Nur ul-Haq Ulumi, who used to be a general in the Afghan army in the 1980s and later become the governor of Kandahar; there are various allegations of crimes by the Afghan army during this era. He returned to Afghanistan and was a member of the Afghan parliament from 2005 to 2010 and was then interior minister from 2015 to 2016. General Abdul Ghani, who worked with KhAD as director of the CIS department in the 1980s, is an example of an Afghan who fled to another European country. According to four interviewees, he left the Netherlands and went to Germany after the Dutch police started their investigations into Hesam and Jalalzoy; they reported that he is still living there.
The Dutch government also believes it has a moral obligation towards its citizens, including Afghan victims of war crimes who are now Dutch citizens. The number of Afghans in the Netherlands is around 50,000 people, according to the Dutch Central Bureau of Statistics. Given that the Afghan conflict is now more than four decades long, a great many Afghan families now living in the Netherlands have been affected by war crimes. For the Dutch government, it could be important to seek justice for those victims who have become Dutch citizens, particularly where perpetrators live among them.
In Afghanistan, where the government has been unwilling or unable to prosecute past crimes, investigations in the Netherlands and the trial of Zardad in the UK have given hope that at least some criminals would be brought to justice, even if they have left Afghanistan. Most Afghan victims interviewed by the Afghanistan Independent Human Rights Commission (AIHRC) in 2004 wanted to see war crimes trials, but their demands have not been fulfilled by the Afghan government. The AIHRC interviewed more than four thousand war victims and 76 per cent of them supported criminal investigations. This demand was also reflected in the ‘Peace, Reconciliation and Justice in Afghanistan Action Plan, (more details on the action plan here). Nevertheless, only Asadullah Sarwari, the director of AGSA, the Afghan Intelligence Service from 1978 to 1979, was tried in Afghanistan. This happened largely as a result of pressure from mujahedin leader Sebghatullah Mujadeddi as he lost more than 20 family members when Sarwari was in charge of AGSA. Sarwari’s trial, however, fell far short of fair trial standards (see here for more details).
For too many victims’ families, their losses remains an ungrievable burden. While the Dutch trials are slow and small in number, one tangible impact for thousands of Afghans was that the investigation brought about the release of the death list and other evidence, which provided some solace for surviving families. That publication was momentous for many families of the disappeared, who were finally able to hold fateha memorials for their loved ones. The four Afghan-Dutch citizens interviewed by AAN for this report are all victims themselves, including Masud, whose father was arrested and disappeared in 1978, when he was a teenager. Masud found his father’s name on the death list.
Another victim who spoke to AAN for this report, Tawab Fayazi, also found the names of his father and uncle on the list; they disappeared when they were 28 and 19 respectively. Fayazi himself was only six months old at the time, with a 2 years old sister. In 1994, he also lost his sister in the factional war in Kabul. After the publication of the death list, he became a member of a group of 300 of victims’ families who created the Victims’ Families Organisation.
Even some of those who did not find the names of their missing relatives on the death list say they have found some comfort in the public memorial events which have been held since the publication of those list. 67 years old Kabul resident Ghulam Abbas had hoped to find news, finally, of his 17 years old brother, Habibullah, who was arrested by AGSA from the Chendawul area of Kabul in YEAR and was never seen again. Ghulam Abbas contacted many Afghan officials at the time to try to get information about his brother, but to no avail. The only answer he received was from the then minister of interior (he does not remember the minister’s name) who wrote on his letter “Go and ask Khomeini,” the Iranian ayatollah and supreme leader, a reference he thought to Ghulam Abbas being a Shia name.
Since the publication of the death list, many families of the disappeared have joined transitional justice activists to make an annual visit the Polygon (Puligun), the area close to Pul-e Charkhi prison where it is believed many victims were buried in mass graves. “Nowadays, I have the sense that my father and uncle are buried there,” Fayazi told AAN. For Ghulam Abbas there is still no sense that anything has been settled. Even though he knows his brother must have faced the same fate as the thousands of other victims, he cannot stop praying to see him alive one day. Without evidence or answers about the deaths of the disappeared, many survivors like him remain in limbo.
The Afghan government has recently set up a War Crimes Unit in the Office of the Attorney General, but given the current political volatility, expectations from victims are very low. Many victims are oblivious to the Dutch trials, given the limited media coverage and outreach by the Dutch authorities. However, the challenges faced by prosecutors are a sharp reminder to the Afghan government and human rights community that there is much work to be done in the documentation of past crimes, and a growing sense of urgency given the considerable time lapse. Impunity may still reign in Afghanistan for some years to come, but these investigations show that there are external paths to justice. Even when those paths do not bring prosecutions, the impact of stirring up the past, of finding documentation like the death list, which provide evidence of past crimes, demonstrates that for many victims, truth is an important step towards justice.
Edited by Thomas Ruttig, Rachel Reid and Kate Clark
(1) Several suspects from various countries such as Iraq, Syria, Georgia, Bosnia and Herzgovia and Rwanda have been investigated since 1996. More details here
(2) The coup overthrew President Muhammad Daud, who had ruled since 1973, and who was killed along with his members of is family by military officers loyal to the PDPA. The party called the coup the Enqelab-e Saur (the Saur Revolution). The communist regime was politically, financially and later also militarily backed by the Soviet Union.
(3) There had been PDPA in-fighting long before they took power, with an 11 year-split that began two years after the party was established in 1965. The two factions were reconciled just before the Saur coup, thanks to mediation from the Indian Communist Party on behalf of the Soviet leadership. However, the division quickly resurfaced once the PDPA assumed power.
(4) For more on crimes by other parties, see the Afghanistan Justice Project ‘Casting Shadows: War Crimes and Crimes against Humanity, 1978 to 2001’ which is available here
(5) For background on universal jurisdiction in France, Germany and the Netherlands see: ‘The Long Arm of Justice – Lessons from Specialised War Crimes Units in France, Germany and the Netherlands’, Human Rights Watch, 16 September 2014.
(6) The judges cited a letter from the Dutch State Secretary for Justice to the Netherlands Lower House to prove the legality of using this information, but not necessarily as evidence. In the letter, which was issued on 8 November 1997, the house was informed:
[I]n view of the international conventional-law (the four Red Cross Conventions of Geneva, the Genocide Convention and the Convention against Torture) and moral obligations of The Netherlands, the Public Prosecutions Department will be informed of all decisions that were rejected (among other things) on the basis of Article 1F [of the UN] Convention on Refugees
(7) Both sections obliged the Dutch judiciary to punish the perpetrators of war crimes if they were on the Netherlands’ territory.
Section 8: “1) Any person who violates the laws and customs of war shall be liable to a term of imprisonment not exceeding ten years or fifth-category fine. 2) a term of imprisonment not exceeding fifteen years or a fifth-category fine shall be imposed in the following circumstances: A) if it is feared that the offence may have resulted in the death or serious bodily injury of another person; B) if the offence involved in human treatment; C) if the offence involved looting. 3) life imprisonment, a determinate sentence not exceeding twenty years or a fifth-category fine shall be imposed: A) if the offence results in the death or serious bodily injury of another person or involves rape; B) if the offence involves the joint commission of acts of violence against one or more persons or the use of violence against a dead, sick or injured person; C) if the offence involves the joint commission of the destruction, damage, rendering unusable or removal of any property that belongs wholly or in part to another person; D) if the offence referred to in (C) of (D) of the previous subsection was committed jointly with one or more others; E) if the offence is an expression of a policy of systematic terror or unlawful action against the entire population or a particular section of the population; F) if the offence involves a violation of a pledge, or a violation of an agreement concluded as such with the opposing party; G) if the offence involves the abuse of a flag or symbol or of the military insignia or uniform of the opposing party that is protected by the laws and customs of war.”
Section 9: “Any person who wilfully permits an offence as described in the previous section to be committed by a subordinate shall be liable to the same sentence as the carried by such offences.”
(8) An account of the Kerala massacre can be read in Edward Girardet’s book Killing the Cranes: A Reporter’s Journey through Three Decades of War in Afghanistan (2012). Girardet was one of the four reporters who went to the scene of the massacre and broke the story in early 1980. The massacre also features in the Afghanistan Justice Project report.
(9) A statute of limitations sets the maximum time after the date of an alleged offence during which legal proceedings must be initiated.
This article was last updated on 25 Mar 2020