Afghanistan Analysts Network – English

Rights and Freedoms

“Tell Us How This Ends”; Discussing Transitional Justice

Sari Kouvo 5 min

AAN’s latest report ‘Tell Us How This Ends: Transitional Justice and Prospects for Peace in Afghanistan’ asks whether, after 35 years of conflict, Afghanistan can move forward without addressing the legacies of its violent past. The report includes an overview of war crimes and human rights violations from the Communist putsch in 1978 to the ongoing-armed conflict today. It examines the international agenda in Afghanistan from a transitional justice perspective and reflects on the reintegration programs and the attempts to get the peace process off the ground. In the following interview, AAN’s Sari Kouvo talks about the successes and setbacks of the past decade in terms of justice for both perpetrators and victims, about the problems with blanket amnesties and the role transitional justice should play in the talks with the Taleban.

The new report touches on a sensitive topic. Why is transitional justice still such a controversial issue in Afghanistan?

Transitional justice in general refers to different measures taken after a conflict to deal with legacies of human rights violations and war crimes, but in Afghanistan transitional justice is often equated with criminal prosecutions. This is why it has become such a controversial issue. But transitional justice is just as much about strengthening government institutions, so that the country doesn’t relapse into conflict, about contributing to the historical record through documentation and truth-seeking, and about ensuring that victims can share their experiences and have their suffering acknowledged.

In the report you and co-author Patricia Gossman explore the different strands of thought on transitional justice; the ‘human rights argument’, which is the idea that transitional justice is a condition for sustainable peace, and the ’realpolitik argument’ that says that convictions of political powerbrokers for human rights abuses can be an obstacle to achieving stability in a post-war situation. What do you think?

In the report we say that the truth lies somewhere in between all the mentioned schools of thought. But I do think there should have been much more progress in the fields of documentation and truth-telling. This could have countered some of the myths and skewed narratives about the conflict and about its victims, perpetrators and villains. For me, truth-telling and dealing with conflict-related grievances is key to reconciliation. Because of the length and complexity of the conflict in Afghanistan it was always going to be difficult to push for accountability. Experiences from other countries also show that it can take decades before the ‘time is right’ for accountability.

What has been the progress on transitional justice in Afghanistan over the past decade?

There were a few good steps forward – and some major setbacks. One of the main steps forward was the national consultation done by the Afghanistan Independent Human Rights Commission (AIHRC) that was published in 2005. This report showed that the majority of Afghans felt that they had been victims of abuses and that they wanted the government and the international community to deal with the legacies of past abuses and to ensure that they were not repeated. This resulted in a government action plan focusing on justice, peace and reconciliation. Unfortunately the plan remained largely unimplemented.

Concrete steps that have been taken include the establishment of a national day commemorating victims of war and two major documentation exercises, one by the United Nations and one by the Afghanistan Independent Human Rights Commission. Neither of these documentation reports has been published, though, which really shows how contentious the debates about past violations are.

What were the major setbacks you mentioned?

The adoption of the Amnesty Law in 2008 was of course one of them. Amnesties are often a necessary part of a peace process, both as a ‘political carrot’ and as a way to reintegrate foot soldiers and others with limited command-and-control responsibilities. However, blanket or limitless amnesties are no longer compatible with international law and they are also considered counter-productive. Basically, blanket amnesties mean that there is no real break with the past; abuses that were committed during the conflict can continue in peace time. There is another problem with blanket amnesties that is seldom discussed: As they are considered illegal, they are also uncertain.

This government may be committed to upholding them, but what about the next one? So, can those who are now reintegrated through, for instance, the Afghanistan Peace and Reconciliation Program (APRP) really trust that they are immune from prosecution? Probably not. A better-defined and more targeted amnesty policy could help reinforce reintegration and take away some of this uncertainty.

Why is it important to document the human rights abuses and war crimes that took place over the past decades?

Documentation – when done well and used well – is an important tool to counter myths about the conflict and about what happened during the conflict. In Afghanistan, documentation could help show that everybody has been a victim at different stages of the war. It can be a tool for national reconciliation.

Now, for example, documentation or truth-telling could be used to emphasise the need for a peace process that does not ignore victims’ experiences of conflict; it could also be used to shift the focus from ‘who’s to blame’ to how to protect and provide redress for the civilian population that has suffered during all phases of the conflict. Documentation and truth-telling is also needed to inform new generations about the conflict. If such information is not available, distorted views on the country’s history will keep fuelling renewed conflict.

What do you think about the fact that the AIHRC mapping report, that documents war crimes from 1978 to 2001, has still not been released?

One of our recommendations is to release the report. But this is not just about putting the mapping report out there; it is also about how the report is released. It is of course important in itself to get the existing facts about what happened during the conflict out in the public sphere, but it would be even better if the Afghan government – and not only the AIHRC – would take ownership of the report and its findings.

It could then be a point of reference for current leaders to make to some form of public apology; a form of acknowledgement of the extreme suffering of the Afghan population. The report could be used to show that people all over Afghanistan have been affected by the conflict and have suffered extreme violations. This realisation can contribute to peace building. Now, I am not saying that any of this is easy. The AIHRC will need political support from the Afghan government and its international supporters if and when the report is released. In 2005, when the situation in Afghanistan was still much better, the United Nations chose not to release a similar report on past violations covering the period 1978 to 2001, citing the security of its staff as one of the reasons. So even in a situation of relative stability, even international organisations have shied away from publishing reports on past violations.

What kind of role should transitional justice play in talks with the Taleban?

I think a reduction of the suffering of civilians should be on the table from the beginning. If there is a real move towards negotiations, it will most likely be ‘talking while fighting’. So, at this stage, if the parties really want to find a peaceful solution to the conflict, they should immediately stop targeting civilians and committing acts that amount to war crimes and human rights violations.

The main lesson from the past decade is that trying to ignore the past does not bring stability; it is not a viable strategy for building institutions with integrity. Conflict related grievances tend to fuel more conflict.

That said, I would be surprised if there was a real shift in strategy. Transitional justice is often perceived as counter-productive for peace negotiations. And it can indeed be counter-productive if it only focuses on the crimes that those around the peace negotiation table have committed. But the focus can also be shifted to a discussion on civilian suffering and how those who have suffered throughout the decades of conflict should have some form of acknowledgement and reparation. But these are issues that have been consistently ignored in power sharing and peace agreements in Afghanistan.

What should the international community push for?

At this stage I think it is about putting the discussion on civilian suffering on the table and about trying to ensure that, if you do enter into peace negotiations, you include civil society, human rights groups and the local population in the discussions. They should be consulted in a peace process.

The report by Sari Kouvo and Patricia Gossman can be downloaded here.

Read the executive summary here.


Amnesty Law Taleban Transitional Justice