Now that the Taleban office in Qatar has been opened, a US-Taleban prisoner exchange is again on the table. It would mean the American soldier, Bowe Bergdahl, who was captured by the Haqqani-linked, Taleban commander, Mullah Sangin in 2009, being exchanged for four senior and one junior Taleban prisoners held in Guantanamo Bay; they include one of the founding fathers of the Taleban, Khairullah Khairkhwa and the former head of the Army, Fazl Mazlum. The swap was first discussed in the winter of 2011/2012 and then shelved as talks over the opening of the Qatar office petered out. During this period, AAN senior analyst, Kate Clark, spent several weeks researching the backgrounds of the five, particularly assessing whether they had committed war crimes while in power and how allegations come to be made about prisoners at Guantanamo Bay.
On Thursday (20 June 2013), the Taleban political office spokesman, Suhail Shaheen, when asked about Bowe Berghdhal by AP said: ‘First has to be the release of detainees… It would be an exchange. Then step by step, we want to build bridges of confidence to go forward.’ In Washington, the State Department spokeswoman specifically did notmention a prisoner exchange, but did say that, among other things ‘Sergeant Bergdahl and the fact that he has been gone too long’ would be part of discussion with the Taleban when the US Afghanistan-Pakistan envoy, James Dobbins, who is currently, ‘packed and ready to go with his passport and suitcase,’ gets the go ahead to travel to Qatar.
Releasing Guantanamo Bay detainees is not entirely in President Obama’s hands as Congress has imposed strict restrictions. Even so, the release of the five Taleban is once again on the cards.
The ‘Guantanamo Five’ are not the only Afghans, or even the only Taleban, still held at Guantanamo. According to the New York Times/NPR ‘Guantanamo Docket’ website (read here), there are still 18 Afghans incarcerated there, but, aside from Abdul Nabi Omari, they are the major Taleban figures still inside: Khairkhwa the former governor of Herat and one of the founding fathers of the Taleban movement, Fazl, former head of the Army, Nuri, former head of the northern zone, and Wasiq, former deputy head of Afghanistan’s intelligence agency. Some of these names have been discussed for release before, including by President Karzai and the High Peace Council (for reporting, see here and here) and as a demand from the Taleban (here) .
At least one of the five, the former deputy intelligence chief, Abdul Haq Wasiq, was arrested in 2001 by the US army in a sting operation after he had handed himself in to the new Afghan government in good faith. This was one of many such detentions of major Taleban figures involving deception or duplicity in the early months of the US intervention, as Anand Gopal has detailed in a 2010 report (read here). It was a tactic which helped sow the seeds of insurgency, in that it showed that Taleban would not be allowed to live in peace after the fall of their regime.
Freeing prisoners is invariably one of the demands of any non-state armed group trying to reach a political settlement and the Taleban are no exception. This is always a difficult and contentious issue for the state concerned, even when it is necessary for a peace process. If the ‘Guantanamo Five’ are released to house arrest in Qatar with proper safeguards, it is difficult to see how they could return to fight in Afghanistan. Yet, objections to their release appear based less on practical considerations, than on political ones, especially fears in the White House of being accused of dealing with the enemy during an election year.
It seems important, therefore, to be honest about the allegations made about the five. All or some of the five have been labelled in press reports as war criminals, but without giving details of where, when and against whom the crimes supposedly took place. There is only real evidence against Mullah Fazl Mazlum and the allegations against him were known about at the time – that he had command responsibility when civilians were massacred and civilian property wilfully destroyed. Many figures in government today have similar records. As will be looked at in depth in a second blog, claims made in the Guantanamo Bay tribunals and in press reports sourced to un-named US officials, frequently do not stand up to close inspection.
Detail on alleged war crimes referred to in this blog comes from the Afghanistan Justice Project (read here), the suppressed United Nations Mapping Report of 2005 (read here), various UN and Human Rights Watch reports from the time and interviews with survivors and witnesses. Allegations against the five made by the US authorities can be found in official documents released, either under a Freedom of Information request (read them on this New York Times/NPR website) or by Wikileaks (read them here).
Mullah Khairullah Khairkhwa
Khairkhwa is the most senior of the five on the list. Now in his mid-40s and a Popalzai from Arghestan in Kandahar, several people who knew him described him as ‘eagle-eyed’ and intelligent. He is one of the fraternity of original Taleban who launched the movement in 1994 – in other words, he is someone who will still command a great deal of influence and respect among today’s insurgents.
It is mystifying to know where the Guantanamo Bay authorities got the idea that Khairkhwa was known, in their words, as a ‘hardliner in terms of Taleban philosophy.’ During the Emirate, he was considered one of the more moderate Taleban in leadership circles, along with commanders like Mullah Burjan (killed in 1996) and Mullah Omar’s deputy, Mullah Rabbani, who died of cancer in April 2001 (although his name stayed on the UN sanctions list for years). I met Khairkhwa in September 2000. Unlike many Taleban, he was comfortable speaking to a foreigner and, very unusually, happy to be interviewed in Persian (most Taleban would only speak Pashto at the time). Herat, where he was the governor, was noticeably more relaxed than Kabul, Mazar or Kandahar: I filmed openly in the city (then an illegal act), the economy was reasonably buoyant and women came up to chat – a very rare occurrence.
It is believed, report Alex Strick van Linschoten and Felix Kuehn, who present biographies of many Taleban in their new book(1), that Khairkhwa was educated in the Haqqaniya and Akhora Khattak madrassas in Pakistan and fought with the Harakat-e Enqelab-e Islami party during the 1980s jihad against the Soviets. He was a Taleban spokesman in the early days (1994-1996) and briefly Interior Minister following the Taleban takeover of Kabul. One witness who was in Mazar-e Sharif when the Taleban captured the city in 1997 placed him as a commander there, leading forces from western Afghanistan, although the witness said he did not participate in the defection agreement conducted in Faryab with General Malik. After the Taleban took Mazar, the city rebelled and thousands of Taleban were killed, some in fighting, but most afterwards by Malik, when they were prisoners of war. The bulk of Taleban forces were driven out and, according to the witness, Khairkhwa led those Taleban who withdrew westwards. He eventually established a new frontline in Murghab.(2)
There is one incident in which Khairkhwa may have had command and control responsibility, although this has not been substantiated.(3) During the 1997 retreat, Taleban and/or their local Hezb-e Islami allies killed several dozen civilians in villages in the Dehdadi district of Balkh province. This area had suffered and would continue to suffer tit for tat attacks by both Pashtun and Hazara armed groups against ‘each others’’ civilians. The 1997 killings are referred to in a UN report (here) with the possibility that they were carried out by Taleban or by local Pashtun, Hezb-e Islami commanders, who were under Taleban orders.(4)
Khairullah subsequently became governor of Herat (5) and witnesses do not place him as having taken part in the second campaign to capture Mazar in 1998 when the Taleban murdered thousands of mainly Hazara civilians, both men and boys, in revenge killings which were accompanied by explicitly anti-Shi’a rhetoric.
In February 2002, Khairullah was arrested by the Pakistani authorities and handed over to the Americans; after a short period of detention in Kandahar, he was transferred to Guantánamo jail. His name has come up repeatedly for possible release – including in February 2011 by the High Peace Council (for reporting, see here) Khairullah also featured in a case taken to the Federal District Court in Washington DC in March 2011, which sought his release because of ‘unlawful detention’. Hekmat Karzai, the director of the Centre for Conflict and Peace Studies and cousin of President Karzai, backed the case, saying he thought fair treatment of prisoners prevented further radicalisation and could aid reconciliation. ‘Mr Khairkhwa is well respected amongst the Taliban and was considered a moderate by those who knew him,’ he told Al-Jazeera (read here). ‘We believe he can help in creating the address for the Taliban that is needed in this peace process.’ The two also share the same tribal background.
Mullah Fazl Mazlum
Mullah Fazl was also a famous name during the Taleban era. He is a Kakar, originally from Tirin Kot in Uruzgan, and is also old enough to have fought at a junior level during the 1980s jihad. While not one of the original Taleban, he joined early and rose through the ranks because of his fighting ability. He ended up as one of the most important and feared commanders of the Emirate and was head of the Army Corps in 2001. Unlike other Taleban commanders, he never took a civilian post. There is evidence documented by the Afghanistan Justice Project (AJP) that he had command responsibilities for two grave breaches of the laws of armed conflict.
In 1999, he was one of the senior field commanders in the Shomali offensive, leading forces along the Old Road to Mirbacha Kot (while Mullah Dadullah – killed while fighting in 2007 – commanded forces further west, on the New Road connecting Kabul with Bagram). The victorious Taleban destroyed civilian infrastructure in Shomali on an industrial scale – burning houses, vineyards, orchards and destroying irrigation systems; they also summarily executed civilians and surrendered Northern Alliance fighters and forcibly displaced civilians, contributing to an exodus of 300,000 people. AJP reports:
One eye witness, who fought with the Taliban specifically implicates Mullah Fazil as supervising the wanton destruction of civilian infrastructure. On August 10, 1999, this commander went for a meeting with Mullah Fazil, near the front line, in Kalakan District. He observed widespread, deliberate destruction to houses and shops in the area. Fazil was in the field, supervising demolition operations.
Fazl also had what AJP calls ‘strategic responsibility’ as head of the army corps when the Taleban were trying to subdue resistance in and around Yakowlang (Bamyian province) in 2001, involving a series of massacres of civilians and the burning of villages. Others are also implicated, both those on the ground and in other command positions.(6) AJP says Fazl, ‘visited occasionally, including during major operations,’ and that he, ‘must have been involved in the planning and supervision of the operation.’
Nuri was head of the northern zone (rais-e tanzim-e shomal) and governor of Balkh – both administrative, not military positions – when he was captured in November 2001. A Tokhi from Zabul, he was too young to fight in the 1980s jihad and joined the Taleban as they were expanding northwards. Not a member of the original Taleban ‘band of brothers’, he nonetheless rose through the ranks, holding a number of provincial governor positions – in Wardak, Laghman and Baghlan – before ending up in charge of the north. I have seen no evidence of the accusation framed by AP (here) that he – note the passive voice – ‘has been accused of ordering the massacre of thousands of Shiite Muslims.’ This throwaway accusation is also made by the Wall Street Journal, again without any substantiation (read here); unless and until proper details – date, place and Nuri’s alleged command position – are presented, it looks like a generic allegation and should be discounted.
Along with Fazl and the late Mullah Dadullah, Nuri negotiated the surrender of Taleban fighters in Kunduz (concluded on 26 November 2001) with General Dostum and the late General Daud. The Taleban believed the peaceful surrender of men and weapons was to be in exchange for safe passage home and indeed, a meeting with Dostum, Muhaqqiq and Atta was filmed. The deal actually ended in chaos and bloodshed – the prisoner uprising and its violent quashing in Qala-e Jangi and the suffocating to death of thousands of Taleban prisoners and their burial in Dasht-e Laili. This final massacre of the 1978-2001 conflict is something which Dostum and his US Special Forces allies have yet to address. As for the three Taleban leaders who surrendered, Dadullah managed to flee; the other two, Fazl and Nuri, were handed over to US forces and have been in Guantanamo since.
The Wall Street Journal, cited above, quotes a ‘confidential annex of the Administration’s 2010 review’ (review of what is not specified), saying that both Fazl and Nuri are suspected of having killed the CIA agent, Johnny Michael Spann, at Qala-e Jangi, but again without giving details. Given that there were hundreds of prisoners and the identities of most were unclear at the time, I would want to hear detailed evidence before taking this seriously, especially as allegations made in Guantanamo are so peculiar and random. Moreover, the factual basis appears unsafe. Qala-e Jangi, a huge, mud-built fortress, is about 20 minutes’ drive from Mazar-e Sharif. According to senior Northern Alliance sources who were in Mazar, the high-ranking Taleban leaders were held, because of their rank, in a separate guesthouse in the Kodibarq complex in Mazar city and were not used to try to calm the situation in the Qala.
Abdul Haq Wasiq
He was deputy chief of the Taleban ‘Estakhbarat’ (Intelligence). He was appointed after his cousin, Qari Ahmadullah, became its head. Ahmadullah, a founding member of the Taleban, was reported killed in a US bombing raid in early January, 2002. Wasiq is an Andar, from Ghazni province. He was detained in a sting operation in late 2001 in Ghazni, after being tricked by a subordinate whom he knew had travelled to Pakistan to see Rahim Wardak (now the minister of defence) to start cooperating with the US. The subordinate told Wasiq he had set up a meeting with the Hezb-e Wahdat leader, Abdul Karim Khalili, with whom he could negotiate a security guarantee for safe passage to Kabul and reintegration. Wasiq and Khalili are known to have previously been in contact. One listener to the BBC in November 2001 remembers Wasiq saying that ‘Mr Khalili’ had agreed to give safe passage through Hazarajat to Taleban forces fleeing southwards. However, when Wasiq turned up at the rendezvous, instead of Khalili being there, he was delivered to a US Special Forces team and has been in Guantanamo ever since.
Abdul Nabi Omari
The final Taleb named on the list, Omari , is a minor figure from Khost. One witness said he worked as a judge in Khost during the Emirate. He may also have worked in the Ministry of Tribes and Borders under the then ministership of Jalaluddin Haqqani. If he has connections as a client to the Haqqanis, that may explain why this junior figure is on the list for release – given the US desire to secure the release of their soldier, Bowe Bergdahl, whose capture in 2009 was claimed by a Haqqani commander, Mullah Sangin (for details on the case, see here). Witnesses who know the Khost Taleban were mystified as to why the US authorities believe Omari is one of the major figures they have in custody.
(1) ‘An Enemy We Created’: The Myth of the Taliban/Al-Qaeda Merger in Afghanistan, 1970-2010’.
(2) The other tranche of fighters was led first south to Baghlan and then to Kunduz by Mullahs Dadullah, Fazl and Amir Khan Muttaqi (the Taleban minister of information and culture and then education and currently head of the Taleban’s media committee).
(3) In order for Khairkhwa to be held guilty for the Dehdadi killings, it would need to be proved that he had ‘command responsibility’, in other words that he ordered or instigated his subordinates to kill the civilians or failed to prevent them from carrying out the killings or failed to punish them afterwards. Article 28 of the Rome Statute of the International Criminal Court specifies the following requirements in establishing command responsibility:
• The subordinates must be under the effective command and control, or the effective authority or control of the superior;
• The military commander knew or should have known that his forces were committing or about to commit such a crime;
• The military commander failed to take all necessary and reasonable measures to prevent the crimes or to punish them by submitting them to the competent authorities for investigation and prosecution.
(4) The other tranche of retreating Taleban killed dozens of Hazara civilians in Qizilabad, as well as 50 Junbesh prisoners at Qala-e Kul Muhammad.
(5) I reported on 4 June 2001 on Khairullah’s reaction to a Taleban Vice and Virtue police raid on Herat’s central hospital and their forcible trimming of the beards of medical staff and patients. After doctors fought back and complained to Khairullah, he publically condemned the raid and disciplined the police. Ahmad Rashid also carried the story:
… hospital staff and people, including women [joined] in a march to the house of Mullah Khairullah Khairkhwa, the governor of Herat. Mullah Khairkhwa reprimanded the religious police but Herat remains tense due to the standoff with the official Taliban administration and the young vigilantes of the religious police. (6 June 2001, The Daily Telegraph)
(6) AJP also names the following as having command and control responsibilities during the various killings and village burnings of 2001: Mullah Shahzad, in charge of the Yakowlang strike force, Mullah Abdul Sattar, regional military commander for Hazarajat, Jihadyar and Mullah Dadullah, both front commanders, Qari Ahmadullah, head of intelligence, Abdul Rizaq (minister of the interior), and Mullah Omar (head of state).
This article was last updated on 9 Mar 2020