Peace in The Air, But Where Is Justice? Efforts to get transitional justice on the table

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A new museum, commemorating war crimes and their victims, has opened in Kabul. The Afghanistan Centre for Memories and Dialogue is dedicated to collecting the stories of survivors and the families of victims of war crimes. Their voices have rarely been heard in recent decades, partly because dealing with the legacy of violations in the conflict – what is known as ‘transitional justice’ – has received only limited government and international support. Transitional justice is again at risk of being marginalised in the current effort to find a peace deal, say AAN’s Ehsan Qaane and Sari Kouvo. Nevertheless, against the odds, there are some efforts, mainly by activists, to promote transitional justice; these efforts could, in an ideal world, be built on. 

This research was supported by the Embassy of Canada in Kabul through its Canada Fund for Local Initiative (CFLI) Programme.

Dr Nik Muhammad Sharif, a survivor of torture, who lost six brothers after the People’s Democratic Party of Afghanistan (PDPA) seized power in the 1978 military coup was one of those speaking at the opening of Kabul’s newest museum. Dr Sharif’s story was riveting. Almost everyone at the inauguration of the Afghanistan Centre for Memories and Dialogue on 14 February 2019 had tears in their eyes. Sharif described his 11 brothers and how they had been enough to form their own football team. They were Kabul champions in 1977. One year later, the PDPA coup took place. In the purges that followed, six of his brothers were killed. Six survived. After the opening ceremony, he described to AAN how he had been forced to witness the torture of one of his brothers, who had been only 17 years old at the time, “This was more painful to me,” he said, “even than my own experiences of torture.” 

The Afghanistan Centre for Memories and Dialogue is the fourth war crimes memorial or museum to be opened in Afghanistan since 2001, but is, in two ways, a first. It is the first to be established by a civil society organisation, the Afghanistan Human Rights and Democracy Organisation (AHRDO). (1) It is also the first to emerge through efforts to try to help war crime survivors and the families of victims who did not survive heal from the trauma of their experiences. AHRDO has encouraged survivors and relatives to speak, write and paint about their losses and the pains they have suffered. They then constructed metal or wooden boxes, collected personal objects and deposited these and the stories of the war crimes in the boxes, which were called ‘Memory Boxes’. At the inauguration, AHRDO’s Hussain Saramad, described how this ‘memorialization work’ had, “over the course of eight years, during which hundreds of survivors took part, led to the construction of hundreds of Memory Boxes…” It is these boxes and their contents that are the exhibited of the museum. 

For Hadi Marifat, chairperson of AHRDO, the museum has several aims. At the least, they want to try to ensure “the painful history” is not forgotten. They want also to boost the public and the government’s understanding of the necessity of respecting victims’ memories. One aspect of this, said Marifat, was that the government should not deal with the Taleban – in any future negotiations or talks – behind the back of survivors and victims’ families. (2) In this, he said, the museum was important; in their own small way, they believe it is part of helping find a just and durable peace for Afghanistan. 

The museum is one example of how activists are getting on with transitional justice. (For further information about ACDM, see Thomas Ruttig’s reportage in Tageszeitung (Berlin) on 25 February 2019 under the title “Kriegsmuseum in Afghanistan eröffnet: Die Vitrinen von Kabul”, link here. The reportage will be translated into English and republished by AAN.) By ‘transitional justice’, we mean the various mechanisms and processes aimed at getting accountability and justice for war crimes and conflict-related human rights violations, documenting war crimes and survivors’ stories, truth-telling, reparations and the recognition of victims suffering. 

In this dispatch, we look at how, as the various parties to the Afghan conflict slowly nudge their way towards formal peace negotiations (see AAN’s analysis here, here and here), the issue of how to deal with the legacy of past war crimes barely features in the discussions. Marifat and other activists assert that this issue has to be part of any peace settlement. We also look at the few transitional justice initiatives that are emerging and at what they tell us about how transitional justice could feature in a future negotiated settlement with the Taleban.

The absence of transitional justice in previous deals and attempts to effect it, anyway

From the Geneva Accords between President Najibullah’s government and Pakistan (backers of the Sunni factions of the mujahedin) in 1988, which paved the way for the withdrawal of Soviet troops, to the United Nations-sponsored Bonn Agreement that established the post-Taleban Afghan interim authority in 2001 (see here), to the Afghan national unity government peace deal with Hezb-e Islami leader Gulbuddin Hekmatyar in 2016, transitional justice has been absent. Indeed, the amnesties provided in past peace deals and power-sharing agreements led the RAND Corporation to suggest in a recent draft report about what a possible peace deal with the Taleban could look like to say that a “broad amnesty, consistent with Afghan precedent, balanced with creating a process for promoting reconciliation” is likely to be part of the deal (authors’ emphasis). This is despite, as a footnote to the report noted, that “…broad amnesties do not comport with best international practice.” (For further discussion about the draft report, see here.) (3)

The 2001 Bonn Agreement, not a peace deal but a power-sharing agreement, followed the ‘Afghan precedent’. Many Afghans still remember UN special envoy Lakhdar Brahimi’s dictum from the early phases of the Bonn process that one could either have peace or justice, and diplomats’ warnings to ‘not rock the boat’ in which Karzai and the warlords sat in an instable coalition. However, the 2001 Bonn Agreement did mandate the Afghanistan Independent Human Rights Commissions (AIHRC) to investigate human rights violations, and the Commission used this mandate to start looking at past violations. It consulted Afghans on how they wanted to deal with the legacies of past war crimes, using this to help draft the Action Plan for Peace, Reconciliation and Justice in Afghanistan. The Commission also carried out the most in-depth, countrywide documentation of human rights violations and war crimes during earlier phases of the conflict (1978-2001) ever undertaken. It also investigated ongoing violations. 

However, the Karzai government gave, at best, only lukewarm support to the Commission’s efforts and in 2007 parliament put a complete stop to the government’s reluctant engagement in transitional justice. MPs – many of them suspected of war crimes themselves – passed the National Reconciliation, General Amnesty and National Stability Law (known as the Amnesty Law) and the law was gazetted in 2008. (4). Without government support, the Commission also felt unable to publish its documentation of war crimes 1978-2001, known as the Conflict-Mapping Report. It had hoped to use this report start a nationwide dialogue, which could help Afghans to learn about what had happened to compatriots in different parts of the country and in different eras.The Commission and its chairwoman, Sima Samar, continue to emphasise the importance of a peace process that provides space to victims and a recognition of their experiences. On 5 December 2018, she said that a durable peace would be possible only if it addressed the legacy of the past, “We are not proponents of violations and revenge, but at least the pain of victims should be acknowledged and the perpetrators must apologise for their crimes” (see here for the full report).

After 2001, then, although transitional justice went unmentioned in the Bonn Agreement, activists and advocates have tried – but largely failed – to introduce it into the mainstream of Afghan politics and discourse. Since 2008, as will be seen below, it is only the International Criminal Court (ICC) through its preliminary examination (AAN’s Q&A about the ICC) of possible war crimes since May 2003 (when its jurisdiction began), and some Afghan and international civil society organisations which have continued to engage on transitional justice in Afghanistan (for AAN reporting on these issues, see here).

The demands of international law

International law requires that international crimes – war crimes, crimes against humanity and genocide – are investigated and perpetrators held to account. International law also includes legal obligations relevant to the right to remedy and the right to truth and a host of guidance and international best practice relevant to victims’ rights (for international instruments relating to the promotion of truth, justice, reparation and guarantees of non-recurrence see here). 

The prevalence of international norms does not ensure their implementation, however. Raising issues of transitional justice during a peace process is often seen as risk it failing. This may be particularly true in the case of Afghanistan, where previous peace deals have included amnesties. Also, all of the parties to the current conflict may have an interest in not drawing attention to conflict-related violations and the ongoing conflict and level of violence makes it difficult for victims to share their concerns. Nevertheless, comparative lessons suggests that a balance between peace and justice (see here) is necessary. This is also a clear lesson from the Bonn process; choosing peace or rather stability instead of justice failed to ensure sustainable peace in Afghanistan. Analysis based on peace agreements data collected by the Political Settlements Research Program suggests that about half of the post-1990s peace agreements have included some level of amnesty and that amnesty provisions can be conducive to a sustainable peace. However, the devil is always in the detail: who introduces an amnesty, when it is introduced, for what crimes and under what conditions. All of these questions matter. The Political Settlements Research Program has also shown that victims, as well as broader transitional justice considerations, need to be part of peace processes. The voices of victims are relevant to getting peace and making it sustainable. That is, for peace to be sustainable, the need to end violence and get a swift peace deal need to be carefully balanced against the need for accountability, being truthful about the past, and making reparations. Such balancing, as was noted above, has never been done in earlier Afghan peace deals and power-sharing agreements. Rather, the pain of the past has been ignored. 

Steps being taken towards transitional justice 

Even though Afghanistan has been a tough environment for advocates of transitional justice, some steps – albeit few in number – have been taken to try to revive the focus on accountability and, more broadly, transitional justice in Afghanistan. These include (1) a possible investigation into war crimes in Afghanistan by the International Criminal Court (ICC) and the inclusion of ICC crimes in the Afghan penal code; (2) the planned establishment of a committee for war victims as part of President Ghani’s Peace Advisory Council; (3) the AIHRC’s preparation for a possible national consultation about how Afghans want to deal with past violations; (4) documentation of human rights violations; and (5) a reinvigoration of civil society engagement in promoting transitional justice. 

(1) Accountability for international crimes with amnesty

Since 2017, the Pre-Trial Chamber of the International Criminal Court (ICC) has been pondering whether it should open a full investigation into war crimes and crimes against humanity occurring on Afghan soil since 2003 (see AAN’s previous reporting here). The ICC prosecutor showed in her application, submitted to the Pre-Trial Chamber in November 2017, that crimes reaching the ICC threshold had been committed and the fact that Afghanistan has a blanket amnesty law was evidence that the Afghan government was unwilling or unable to investigate these crimes. The resounding support by Afghan victims for an ICC investigation, given in an ICC consultation in January 2018, also suggested to the Court that an investigation would be in ‘the interest of justice’, one of the conditions for the Court to act. Since then, the ICC’s Pre-Trial Chamber has been deciding whether or not to authorise an investigation. Its extreme slowness is most likely caused by considerable pressure from the United States not to start an investigation that would involve investigating crimes allegedly committed by the US military and CIA in Afghanistan, and more broadly not to start an investigation just as a peace process may be on its way. The Afghan government has also been consistently trying to convince the Court that it is willing and able to investigate the ICC crimes – despite the Amnesty Law (read more details in AAN’s previous writings here). 

One concrete step taken by the Afghan government in response to the ICC’s preliminary examination has been the criminalisation of the four Rome Statute crimes – war crimes, crimes against humanity, genocide and the crime of aggression – in the new Penal Code. The government has also established a department within the Attorney General’s Office (AGO) to investigate these crimes. 

The Rome Statute, applicable to Afghanistan since May 2003, and the Penal Code, in force since February 2018, both oblige the Afghan government to deal the war crimes and crimes against humanity occurring in Afghanistan since their enforcement. At the same time, the Amnesty law  provides immunity to perpetrators. This has put the Afghan government in a legal limbo in terms of holding perpetrators to account. Even so, although the Penal Code has not explicitly made the Amnesty Law obsolete, its article 916 could be understood to have implicitly done so. It says that “[c]riminal provisions of other laws, which are contrary to provisions contained in this law,” shall be abolished. The term ‘other laws’ should logically cover the Amnesty Law, at least until the Afghan Supreme court or other relevant authority advises differently. Noteworthy also is that the Law on Crimes Against Internal and External Security, adopted as early as 1987, has been integrated into the new Penal Code. This law criminalises acts of terror, fighting against the government and attacking public institutions – all crimes which the Taleban have committed. Immunity to the perpetrators of these crimes is explicitly ruled out by the Amnesty Law (article 4). 

Another step taken by the government has been to establish, on 17 February 2018, a special department within the Attorney General’s Office to investigate international crimes (this was proposed by Attorney General Muhammad Farid Hamidi and approved by President Ashraf Ghani – order number 863). The department has 20 staff, all in Kabul. While its establishment was an important first step, the department is not yet fully functioning. Its head, Muhammad Daud Afzali, told AAN, a year on, he still needs to recruit staff, especially in the provinces, ensure they receive training not only on international humanitarian law and international criminal law, but also how to investigate complicated war crimes, safely, in a time of conflict and without jeopardising victims and witnesses. This is especially crucial as no law defines victims and witnesses’ protection mechanism in the country. To be stable and sustainable, the department also needs to be recognised, as are other departments, by an amendment to the Attorney General’s Office Structure, Responsibilities and Jurisdictions Law, where the institution’s responsibilities and authority re defined. 

Afzali told AAN that an amendment to the law concerning the responsibilities of the department was proposed by the Attorney General’s Office and is being reviewed by the Ministry of Justice. The amendment suggested the department should have four responsibilities: 1) documenting, investigating and prosecuting international crimes; 2) cooperating with other states in relation to these three tasks, according to Afghan law; 3) managing the extradition of international crimes-related detainees and prisoners; and 4) performing any other tasks given to it, according to Afghan law. Although the amendment did not propose cooperation with international institutions, such as the International Criminal Court, as a separate task, paragraph four could cover this gap.

To make perpetrators accountable, it is also important that there should be a court with jurisdiction to hear cases filed by this department.(5) This would require an amendment to the Law on the Structure, Responsibilities and Jurisdictions of the Afghan Judiciary, which would need to be done by the Afghan Supreme Court. AAN was not able to find out if such an amendment has been proposed.

(2) Involving victims of war crimes in the peace process

President Ghani’s latest peace proposal, launched at the Geneva Conference on Afghanistan in November 2018, included the establishment of a Peace Advisory Board divided into eight different committees (see AAN’s analysis here). (6) The original plan did not include any specific involvement for Afghan war victims. According to Maina Abbasi, representative of the Transitional Justice Coordination Group (TJCG) (a coalition of different groups) to the Geneva Conference, they requested the National Security Advisor, Hamdullah Muheb, to establish an additional committee representing war victims. He welcomed the request and later, the Victims’ Families’ Representatives Committee was added to the Peace Advisory Board. A source in the National Security Council (who asked not to be named) told AAN in January 2019 that the initial idea was that the new committee should have 50 members, later decreased to 15. 

The inclusion of a committee for war victims in the Peace Advisory Board is the first time war victims have been provided an official platform. (7) However, the committee has yet to be established and AAN has not been able to clarify how and if committee members will be appointed or indeed what their role will be. Ahmad Shah Stanikzai, a member of TJCG, shared his concerns with AAN that, without a clear definition of how a member of the committee will be chosen, it might be misused; the government, for example, might bring in, in his words, “its own people.” He also added that it is not clear “how much the president would value victims’ committee’s recommendations” in the absence of a clearly-defined mandate. It is doubtful as well, he said, if these 15 representatives would be able to represent all victims in Afghanistan’s diverse society and over many years (the Taleban have been involved in the conflict for more than 25 years).

(3) A national consultation on dealing with legacies of the conflict

The AIHRC has started to prepare for a new consultation with Afghans on how they want to deal with the legacies of the conflict. This would be similar to its ‘A Call for Justice’ report published in 2004. In that year, in the course of seven months, the AIHRC interviewed 4,151 Afghans from all 32 provinces, as well as 400 Afghan refugees in Pakistan and 300 others in Iran, to collect their views on dealing with the legacy of the conflict, 1978-2001. The ‘A Call for Justice’ report did inform the drafting of the government’s Action Plan for Peace, Justice and Reconciliation (applicable from 2006 to 2009), and has remained an important advocacy tool for justice. The AIHRC’s Sima Samar, without giving an exact timeframe, told AAN that the Commission plans to carry out this national inquiry this year. The AIHRC does today have a much more developed infrastructure than it did in 2004, with offices in 14 provinces, and more qualified staff. At the same time, security has grown far worse. (8) Insecurity might create barriers not only for victims to share their views freely and without fear, but also for the AIHRC’s staff to travel to those parts of the country controlled or influenced by the Taleban. 

(4) Documentation and truth-seeking

The AIHRC’s national consultation ‘A Call for Justice’ report was supposed to be published together with a documentation of human rights violations and war crimes from the period 1978 to 2001 compiled by the Office of the High Commissioner for Human Rights (OHCHR) based on open source material. While the AIHRC released its report, the United Nations hesitated. It first published and then took down what became known as the ‘United Nations Mapping Report’ (a copy of which was cached and can be read here). After this, the OHCHR only shared copies of the report with the president and the AIHRC. 

The AIHRC’s in-depth, countrywide documentation of human rights violations and war crimes during earlier phases of the conflict (1978-2001) which resulted in its own Conflict-Mapping Reportwas its contribution to the implementation of the government’s Action Plan for Peace, Justice and Reconciliation. It finalised the report in 2012 but it, also, was never published. Sima Samar said she shared it with President Karzai in 2013, but both he and President Ghani have failed to decide to publish it (although Ghani, before being elected, said he would do so). The only comprehensive documentation of human rights violations and war crimes in the period up to the fall of the Taleban government that has been officially launched is a report by the Afghanistan Justice Project (AJP), a civil society platform. It has remained a valuable resource for activists and researchers. 

As regards the current period of the conflict, from 2001 till today, there is a great deal of ad hoc documentation available, both of human rights violations and war crimes as investigated and reported on by AIHRC, UN, Afghan and international human rights organisations, journalists (for example see the Killid Group’s reportage) and organisations like AAN. However, as of yet, yet there is no comprehensive report covering the conflict from December 2001 till today, and no analysis as to what gaps there are in the existing reporting. (9)

The main reasons why the UN and the AIHRC war crimes reports were not released said the leaders of these organisations was that they feared publication could endanger staff and be politically destabilising. In 2004, and again in 2013, there was both an anxiety that the alleged perpetrators of the crimes would retaliate, and a concern that the reports would increase factionalism. Publishing documentation on human rights violations and war crimes when perpetrators have political and military power, as is the case in Afghanistan, inevitably carries risks. In the years after the adoption of the Bonn Agreement, these risks were augmented by the fact that there was no clarity about the extent to which amnesty could be provided, no common, agreed-upon narrative about the conflict and no substantial efforts towards a peace process. 

There was – and is – no easy way to deal with the security risks relating to documentation exercises in a country like Afghanistan, but what was lacking in the UN and AIHRC documentation exercises was a clear idea about what the reports should be used for. Early and careful consideration about how documentation can be linked to truth-seeking and reconciliation might have eased the difficulties of getting the reports published. Possibly, the documentation exercises could have been supported by an official truth-seeking mechanism that also took into account the historical and social context of the conflict, that acknowledged and sought to support victims and that was a tool for reconciliation. 

‘Justice’ and ‘reconciliation’ are intimately intertwined in Afghanistan. Both demand that steps are taken towards creating a common and broadly-accepted narrative about what has happened during the conflict. Yet today, there is no such narrative, and the conflict since 2001 has only further fuelled factional narratives of the war, its reasons and its consequences. It is noticeable, for example, that the Afghanistan conflict is not taught in schools. This was a deliberate move. In 2002, when efforts to reform Afghanistan’s school curriculum began, the government decided that this history should not be added to school textbooks in any detail. The reason given by former ministry of education, Faruq Wardak, was that the school curricula needed to be “depoliticized and de-ethnicized” and this could not be done if Afghanistan’s conflict history was included (more details provided by this AAN’s report).

These days, some international institutions like UNAMA are also deliberating how to balance peace, human rights and justice. Richard Bennett, head of UNAMA Human Rights, told AAN that “human rights issues should be at the centre of the peace process.” He also noted that “many Afghans have expressed concern that human rights protections might be compromised in any agreement, or that recent achievements may be jeopardised.” This is particularly in regards to the protection of women’s rights, freedom of expression and freedom of the media. UNAMA is aware of the importance of including many voices in a broader process of deliberating the country’s future, he said, although there are many different models as to how this might be done. The UN hopes to offer relevant experience from other countries to the discussions in Afghanistan. 

(5) Memorialisation and Civil Society Initiatives

While the adoption of the Amnesty Law in 2008 put a lid on official engagement in transitional justice, including with regards to the publication of the AIHRC Conflict-Mapping Report, Afghan civil society organisations have continued to carefully engage on documenting war crimes, collecting war victims’ stories, advocating for a just peace and cooperating with the International Criminal Court. When the ICC was collecting the views and concerns of the Afghan war victims in December 2017 and January 2018, these civil society organisations and victims’ groups played an important role helping get the views of more than 6,500 victims on a possible investigation by the ICC in Afghanistan submitted to the Court ) (see more about representation phase in AAN’s previous dispatch here). (10) 

The Afghanistan Centre for Memories and Dialogue is one example of memorialisation. Setting up the museum is not a one-off event, but part of ongoing work. Hadi Marifat, the chairperson of AHRDO, told AAN they would be inviting more victims to publically share their stories. These would be followed by an experts’ roundtable discussion aimed not only at acknowledging of victims’ pain, but also discussing the root causes of conflicts and figuring out solutions for achieving a sustainable peace. 

Another example of memorialisation allied to activism – this time following the publication by the Dutch government of a list of 5,000 people who disappeared in the early years of the PDPA government – families of the disappeared set up a network, the Afghanistan Victims’ Families Association. Every year, on 10 December – International Human Rights Day and Afghanistan’s National Victims Day – members of the association visit the ‘Polygon’, an area close to the Pul-e Charkhi jail to the east of Kabul, where many of disappeared were buried in mass graves. Member Tawab Fayazi said they also have political demands, the main one being that no PDPA member should work in today’s Afghan government.

Peace with Justice?

Looking at the efforts to promote transitional justice in Afghanistan over the past 17 years, it is clear that accountability, in particular, has been almost entirely lacking. Even simply talking about the violations that Afghans have suffered has been difficult and risky. The absence of transitional justice has been evident from the adoption of the Bonn agreement and the adoption of the Amnesty Law to the peace deal with Hezb-e Islami. It has also been noticeable in efforts to ‘reconcile’ Taleban, such as the Afghanistan Peace and Reconciliation Programme (APRP).  Initiated in 2010, the APRP aimed at reintegrating insurgences and addressing local grievances. It automatically amnestied those coming over to the government side. The Afghan government has also lobbied against an ICC investigation and tried to do the minimum to convince the Court it is not needed, while remarks by US President Donald Trump have threatened the Court if it seeks to investigate US citizens. The main government vehicle adopted for transitional justice after the Bonn Agreement, the Afghan Transitional Justice Action Plan (2006-09), was never fully implemented; there was limited political will and to do so. Short-term stability has repeatedly trumped justice in Afghanistan, and it has trumped engaging with ordinary Afghans suffering violations during the conflict. (For further discussion on this, see for example here and here.)

However, there is an appetite for justice in Afghanistan. Broad consultations asking Afghans if and how they want to deal with past war crimes have been carried out by: the AIHRC, published in its 2004 “A Call for Justice” paper; the Afghanistan Research and Evaluation Unit, published in reports from five provinces, Bamyan, Baghlan, Nangarhar, Kabul and Uruzgan; and by the ICC. The most recent consultation, by the ICC, received submissions on behalf of 6,500 Afghans identifying as victims of war crimes. The overwhelming majority said they wanted the Court to investigate war crimes committed in Afghanistan. All these consultations, as well as investigations by AAN over the years, have shown that Afghans are realistic about what justice is available for them. They do want to know what has happened to disappeared family members, they want recognition for the wrongdoings they have suffered and they want a future for family members – especially children – disabled in the conflict. 

So far, in official or leaked reports of the current discussions between American and Taleban representatives, nothing has suggested that justice for victims of the 2001-19 phase of the conflict is even being raised. It might be different if direct negotiations between the Afghan government and the Taleban begin, although, going on past experiences, one would have to expect the silence on this topic to continue. Even so, as they have proved with their activism over many difficult years, civil society and victims’ groups will continue to push for justice to be a fundamental component in any peace negotiation.

Edited by Kate Clark

(1) The Afghanistan Independent Human Rights Commission (AIHRC) established a war museum in Herat (inaugurated in June 2010, more details here) and another in Badakhshan (inaugurated in April 2010, more details here). Ismail Khan, a mujahedin leader, also established a museum, commemorating the mujahedin’s fight against the Soviet Union, in Herat (its building was fully constructed in 2007, see more details here).

(2) At the moment, the Taleban are only talking to the United States, but it and the Kabul government want the insurgents to deal directly with the Afghan government.

(3) The RAND report, “Agreement on a Comprehensive Settlement of the Conflict in Afghanistan”, has not been published, but parts of the text were quoted by and discussed in the media (see AAN reporting for more detail). The New York Times reported that Laurel Miller, who was the US Special Representative for Afghanistan and Pakistan until June 2017, had authored it. Reuters quoted a tweet from the US embassy in Kabul saying Rand’s work was independent of the US government and did not represent US policy.

(4) President Karzai neither signed nor rejected the parliament’s decision. Based on article 94 of the constitution, if the president does not ratify a legislative decision of the Afghan parliament in 15 days after it was submitted to him, the decision would come in force.

(5) Before the entry into force of the Amnesty Law, a few Afghan war crimes trials had been conducted in Afghanistan. The cases show that individuals with no political protection, such as Asadullah Sarwari, a PDPA official, and Abdullah Shah, a mujahedin military commander from Abdul Rabb Rasul Sayyaf’s Ittihad-e Islami faction, who was sentenced and executed in 2004, can be prosecuted. AAN’s close analysis of the court proceedings against Asadullah Sarwari showed that the Afghan justice system can deliver war crimes trials, although maybe not in a proper way according to international ‘just trial’ standards. The Amnesty Law has also left opportunities open for haq ul-abd rights, ie for an individual, although not thee government to file their cases in front of a court. This right, however, has been difficult and dangerous for victims in practice without government support. No such case has been filed since the law came into force, in 2008. 

(6) These were the eight committees in the initial peace proposal of President Ghani: Political Parties’ Representatives Committee, Religious Community’s Representatives Committee, Women’s Representatives Committee, Tribal Elders and Representatives Committee, Cultural and Civil Society Representatives Committee, Private Sector’s Representatives Committee, Afghan Refugees’ Representatives Committee as well as Youths’ Representatives Committee.

(7) The National Department of Martyrs’ Family Members and Disabled People (separated from the Ministry of Labour and Social Affairs in April 2018) has some responsibilities vis-à-vis victims. It registers victims and pays them or their relatives a small monthly amount of money. 

(8) Based on the US Special Inspector General for Afghanistan Reconstruction, (SIGAR’s) report, published in October 2018, the Afghan government had control or influence over 55.5 per cent of districts (see the report here).

(9) AAN has documented and analysed efforts to address legacies of past violations in Afghanistan in various reports and dispatches (eg, see here about torture, here about civilian casualties and here on the legacy of war).

Our reporting has included analysis about:

How justice and peace has been balanced (or not) in previous power-sharing and peace deals and especially in the first decade after the US-led intervention into Afghanistan (see AAN’s report about transitional justice and peace here).

The practical challenges of Afghan exercises to document war crimes and human rights violations from the early phases of the Afghan conflict and the successful efforts to bury this documentation;

The lengthy and often Kafkaesque legal proceedings against a handful of Afghan war criminals and the politics that led to the adoption of the Afghan Amnesty Law in 2007-08 (see here).

The equally lengthy and occasionally Kafkaesque efforts around the ICC’s engagement in Afghanistan and the US and Afghan governments efforts to put a lid on this engagement (AAN’s reporting about the ICC and Afghanistan here).

AAN has also regularly reported on the war crimes and gross human rights violations occurring in the current phase of the Afghan conflict and the efforts by individuals, families and communities to seek justice – or at least recognition – for the losses suffered (eg. here).

We have also reported on the importance of some of the public displays of truth-telling or recognition of victims’ suffering has had, including, for example, the release of the death lists of 5,000 people, forcibly disappeared by the PDPA (here and here).

Much of this reporting has been collected in AAN’s dossiers on ‘The PDPA and Soviet Invention’ (see here) and ‘Afghanistan’s War Crimes Amnesty and the International Criminal Court’ (see here). This dossier, from October 2017, has now been updated. 

(10) The victims’ representation might help the judges of the ICC to have a clearer understanding of the Afghanistan situation and the victims’ demands for justice and accountability for war crimes. If the judges authorise a full investigation, the Office of the Prosecutor of the ICC would investigate war crimes and crimes against humanity allegedly committed by the Taleban as well as by Afghan and US security forces – these all appeared in the Prosecutor’s application to the judges. Based on the capacity of the ICC and its mandate, the prosecutor may make cases against a few responsible people from these three parties to the conflict. 

Endnotes:

Revisions:

This article was last updated on 9 Mar 2020

Tags:

peace process peace talks Transitional Justice

Authors:

Ehsan Qaane

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Sari Kouvo

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