Afghanistan Analysts Network – English

War and Peace

Conviction of an Afghan War Criminal: A trial years later and far from the scene

Ehsan Qaane 14 min

A 76-year old Afghan has been convicted of war crimes in a Dutch court for crimes committed when he was a senior figure at the notorious Pul-e Charkhi prison in the 1980s. The court sentenced Abdul Razaq Arif to twelve years imprisonment for the crimes of arbitrary detention, cruel and inhuman treatment and assault on the personal dignity of prisoners. Because they were committed in the context of an armed conflict, the court considered them war crimes. Arif’s arrest took place decades after he arrived in the Netherlands and even longer since he perpetrated the crimes, but justice did finally catch up with him. Yet, in general, such trials have been so few in number that their value as a deterrent is limited. AAN’s Ehsan Qaane, who has reviewed the verdict, brings us this Q&A.

Aerial View of the 'great wheel' of the Pul-e Charkhi prison. Photo: United States Special Inspector General for Afghanistan Reconstruction (SIGAR), undated

AAN’s reported on this trial when it opened, War Crimes Trial Begins in the Netherlands: Former commander at Pul-e Charkhi faces justice and on this and other cases of Afghans accused of war crimes in the Netherlands, Afghan War Crimes Trials in The Netherlands: Who are the suspects and what have been the outcomes?

On 14 April 2022, three judges from the Hague district court convicted 76-year-old Abdul Razaq Arif of war crimes (see this press release in English and the judgement in Dutch). It was the end of a process which had begun in 2012 when the Dutch police opened their investigation into Arif, prompted by tip-offs that an alleged war criminal had made his home in the Netherlands. Arif had registered himself with the Dutch immigration authorities under the false name of ‘Rafif.[1]In the publically-available text of the court’s verdict, Arif’s identity – both his real and false names – is not revealed; this is according to Dutch legal practice, as the verdict may still … Continue reading

He was arrested in November 2019, since when there have been 13 court hearings, mostly procedural, but with five held between July 2021 and February 2022 when the prosecution and defence presented their arguments to the judges – who have an investigative role, unlike in the Afghan legal system. Those judges found Arif guilty and sentenced him to 12 years in jail, dated from the day he was arrested and then kept in pre-trial detention; 12 years had been the sentence requested in the indictment. Arif’s lawyers had argued this was too long for someone who was old and in poor health and when the facts of the case were almost forty years old. The judges disagreed, saying they had not been shown that Arif was unfit for detention and the Dutch prison system could continuously monitor Arif’s health. Moreover:

… the passage of time does not constitute a reason for a reduced sentence. Violations of international humanitarian law are permanently topical and still shock the legal order today. In addition, it is partly due to the suspect that he is only now being tried for these offences. After all, he has established himself in the Netherlands under a false name, which has made his investigation and prosecution more difficult.

Who was Arif?

The judges were not able to verify Arif’s exact rank and job title at Pul-e Charkhi, but did establish that he worked in a supervisory role there from 1 January 1983 to 1 January 1988 and was “responsible for the detention conditions and the order in prison, including the transfer of prisoners.” Some of the witnesses said he was the “general commander” of the prison and others that he was the prison’s “head of political affairs.” The judges believed that this inconsistency did not affect the case because victims could not be “expected” to know details of the prison staff or/and their jobs. Some witnesses stated he was a lieutenant colonel, but the judges were not able to identify if he had a military rank or wore uniform. Therefore, he was tried as a civilian superior. The judges also failed to verify to which wing of the People’s Democratic Party of Afghanistan (PDPA) which governed Afghanistan from 1978 to 1992, either the Khalq or Parcham faction (see AAN’s dossier on the PDPA). In the verdict, judges said that it was believed that he was fired from his position between 1988 and 1989, but it was not clear why. What was important in terms of his culpability, the judges said, was that he had been in a position to give orders to the commanders, soldiers and the guards of Blocks 1, 2 and 3 of the prison, where political prisoners and detainees were held. This is the first time a leadership member of Pul-e Charkhi has been tried.

What has he been convicted of?

Arif was found guilty on three counts of: arbitrary deprivation of liberty; cruel and inhuman treatment and; assault on the personal dignity of at least 18 individual political prisoners in the period 1983 to 1988. The judges acknowledged that his victims could be greater in number, but these 18 persons were those who had testified against him in court. As his crimes were perpetrated in the context of a non-international armed conflict (also known as civil war), the perpetrators, Arif and his subordinates, had breached international humanitarian law (also known as laws of war). According to the judgement, in association with his subordinates or by permitting his subordinates, he systematically perpetrated serious physical and/or psychological harm to political prisoners and detainees in Blocks 1, 2 and 3 of Pul-e Charkhi prison, with some of his victims still suffer from those physical and psychological injuries to this day. He was deemed to have criminal liabilities both as a co-perpetrator and as a supervisor. 

First count: Arbitrary deprivation of liberty. This is defined and prohibited in article 9 of the International Covenant on Civil and Political Rights (ICCPR). It states that anyone arrested or detained is entitled to know the reasons for their arrest and any charges against them, as well as to a trial within a reasonable time and before a lawful court or to be released with or without providing guarantees. 

The judges in Arif’s case quoted this article and said that that “if one of these minimum requirements is not met, there is arbitrary deprivation of liberty.” Arif, they ruled, in association with his subordinates had kept political prisoners for years in detention without a trial and without informing them of the charges against them. Some of the detainees had never been to a court, while others had spent years in pre-trial detention. The judges also ruled that the court that some detainees were sent to was not lawful as it was not impartial and judicial proceedings did not comply with free and fair trial standards under international law (see article 6 of the second additional protocol to the Geneva conventions about the rights of a suspect in a civil war context and fair trial standards). They said:

[T]he witnesses (person 2) and (person 1) stated that they and members of their family had been detained for years in the Pul-e Charkhi prison, but had not [been put on] trial. Witness (person 4) also stated that he had not been given a trial during his five-year detention. Other witnesses testified that they had been tried, but had been detained in Pul-e Charkhi prison for a long time beforehand. The witnesses (person 3), (person 10) and (person 8) stated that they were only tried after six years of imprisonment and the witness (person 14) stated that he was tried after five years.

Those who were sent to court were informed of the charges against them only a few days before the court hearings and did not have enough time to prepare their defence. Though they were given pen and paper to write their defence, they were not provided with any legal assistance, including but not limited to lawyers, laws, legal texts and their case files. During court hearings, judges, prosecutors and guards also behaved badly.

[T]he witness (person 8) stated that he only got two questions, that he was verbally abused by the judges. The witness (person 19) stated that the judges were eating while he was conducting his defence and that they were indifferent. The witness (person 12) stated that he was beaten up by soldiers in court on the orders of a public prosecutor while he was conducting his defence. […] According to the witness (person 19), his conviction had already been established. […] The witness (person 15) stated that through his family he already know what his sentence would be before his trail.

Witnesses described being tried by the Special Revolutionary Court which they believed functioned under the state intelligence agency, KhaD (Khedamat-e Ettela’at-e Dawlati, or in English, the State Information Services). The Dutch judges confirmed that this belief was in line with public sources which said KhAD did control the court, that its judges were members of the PDPA and “in some cases recruited from KhaD” and the court was advised by Soviet officials. Therefore, the judges concluded that the Special Revolutionary Court’s decisions could be considered to have risen to the level of ‘extrajudicial judgements’ and that those sentenced to imprisonment by the court could be defined as persons under arbitrary detention, according to article 6 of the second protocol to the Geneva Conventions.

The judges found Arif guilty of arbitrarily detaining prisoners in the period before they went before the Special Revolutionary Court, if they did go before the court, but acquitted him of extrajudicial punishment for any period they spent after being sentenced to terms of imprisonment by the Special Revolutionary Court. Those convicted by the Special Revolutionary Court had been victims of the arbitrary deprivation of liberty, the judges ruled, but Arif could not be held accountable for these prison sentences, pursuant to common article 3 of the 1949 Geneva Conventions. He was, however, ruled to be guilty of delivering extrajudicial verdicts if the Special Revolutionary Court had sentenced a detainee to the death penalty. This was based on the judges’ interpretation of common article 3 (1)(d) which prohibits “the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples.” (The judges’ legal interpretation of common article 3 on implementation of extrajudicial punishments is interesting, but too complex for this report. For those interested, reading the judgement is highly recommended.)

Second and third counts: Cruel and inhuman treatment and assault on the personal dignity against civilian and persons hors de combat (those who lost their power to fight, including prisoners, see ICRC’s definition). This is forbidden at all times and under all circumstances by both international humanitarian law and customary international law (see ICRC’s definition of hors de combat). In Arif’s case, the verdict mentioned the arbitrary detention of political prisoners in Blocks 1 and 2, kept there for years and in uncertainty; the bad conditions of those blocks and cells and; the bad behaviour of prison staff towards detainees, including beating those who complained about the poor conditions. Detainees housed in Block 3 were in a better position, the court found, but were still subject to beatings. 

The cells under Aref’s control were severely overcrowded, with some not allowing prisoners enough space to stretch their legs out, or to sleep. Some had no daylight with Arif and his subordinates forcing detainees to cover windows. “Hygiene in the cells,” said the verdict, “was specially lacking.” Access to toilets were extremely restricted, with just a few toilets for large numbers of detainees and only available at set times: one toilet for 500 people according to one witness, and four to five toilets for 600 people, according to another. Detainees who suffered from diarrhoea, which the court said, “was a regular occurrence because of the bad food,” had no option but to relieve themselves in bottles or plastic bags in front of their cellmates. 

Access to showers and water to wash in were highly limited, with resulting infestations of “fleas, lice and other vermin.” The food was cold and dirty, including said one witness, intestines with faeces left in them. Diseases were very common and healthcare barely accessible which meant that, according to the verdict, “prisoners died from diseases that could been treated with sufficient medical care.” Having a pen or a piece of paper could result in torture. Those who complained about the bad conditions were beaten. 

Additionally, the court found that Arif worked to create fear, anxiety and mistrust among the detainees. Those facing the death penalty were housed with detainees still awaiting trial; when they were taken out to be killed this caused anxiety among those left behind. Members of hostile parties, such as Khalqis from the faction of the PDPA then out of power and mujahedin, were put in shared cells. Members of KhAD were also tasked with posing as prisoners to obtain information from or spy against political prisoners.

Witnesses testified that the conditions got worse after Arif was put in charge of their blocks. 

Witness (person 2) stated that the situation in prison completely changed for him when the suspect was put in charge: he was allowed to go to the toilet less often, could no longer receive visitors and [was allowed access to the open] air less often. Witness (person 4) stated that he was allowed less ventilation under (the suspect) and to go to the toilet less often. This witness also stated that the food got worse under the suspect. According to the witness, the suspect deliberately provided bad food. The witness stated that a fellow prisoner spoke to the suspect about the bad food with the words “You can’t mix our food with dirty stuff,” whereupon the suspect told this fellow prisoner that he was a traitor and anti-revolutionary. […] The witnesses (person 2) and (person 8) stated that the suspect ensured that the windows in their cell were covered.

The judges found Arif guilty of inhuman treatment and assault on the personal dignity of prisoners. They argued that he had been in a position to change the conditions for the better, but had, in fact, done the opposite.

Why was Arif tried in the Netherlands even though his crimes were committed in Afghanistan?

Arif was accused of actions which violated international humanitarian law (IHL), more specifically common article 3 of the 1949 Geneva Conventions and article 6 of Additional Protocol II. Thus, they constituted war crimes. Under international and Dutch domestic law, the Dutch authorities are obliged to prosecute perpetrators of war crimes under the principle of universal jurisdiction or the principle of active personality. 

The judges referred to articles 3 to 9 of the Dutch Wartime Offences Action as the legal basis for their jurisdiction over Arif’s case. Article 3 of Wartime Offences Action obliges the trial of a person accused of war crimes if s/he is on Dutch soil, regardless of whether or not they are a Dutch citizen or did or did not commit the criminal act on Dutch territory. This is the principle of universal jurisdiction. The Dutch Wartime Offences Action also obliges the courts to try a Dutch citizen accused of a war crime even if it was not allegedly committed on Dutch soil; this is the active personality principle. The thinking behind this is that some crimes are so heinous, they can and should be tried anywhere.

Arif could have been tried under the universal jurisdiction principle, as the judges said in their verdict. However, he was actually tried under the active personality principle as, at the time of his trial, he held Dutch citizenship. The judges said they wanted to avoid the question of ‘double criminality’. This is when a person can be prosecuted elsewhere that the state where their crime was committed if the crime was deemed to be a criminal offence in that original state – in Arif’s case, the question would be whether his crimes had been punishable in Afghanistan in the 1980s or not. Using the active personality principle avoided this question entirely. It allowed the judges to rule mainly in accordance with the Dutch domestic laws, including Wartime Offences Action and the Criminal Procedure Codewithout considering whether his crimes would have been punishable by Afghan national laws at the time or not. In their argument, the judges also benefited from international humanitarian law, customary international law and the rulings of international tribunals like the International Tribunal for Former Yugoslavia (ICTY).

The second reason for the Dutch authorities putting Arif on trial for crimes committed in Afghanistan was because of the 18 victims, a few of whom are now Dutch citizens, had demanded justice and that Arif should be held accountable for his past wrongdoings. These witnesses’ identities have not been revealed in the judgment. They are just named as person number 1 to 19. The court could not establish that one, person 5, was, in fact, a victim for reasons which the verdict does not explain. Two of the victims are introduced as relatives of President Hafezullah Amin, the second PDPA regime president who was killed by Soviet troops in Darulaman Palace in December 1979. The 18 victims are described both as protected persons under international humanitarian law and political prisoners who had been housed in Blocks 1, 2 or 3 of Pul-e Charkhi. The term ‘political prisoner’ is not well defined in law and in this case, the judges simply defined it as “persons who were seen by the incumbent Afghan regime as an opponent of that regime, for example because they had spoken out against the regime, or because they were associated with the previous regime.” From the judgement, it is not possible to find out how many, or indeed, if any of the victims were women. 

Thirdly, the Dutch authorities in general want to prevent the Netherlands becoming a safe haven for perpetrators of international crimes. This was, at least, what the Dutch prosecutors told AAN in December 2019, a few months after Arif was arrested. The Netherlands is a destination for many asylum seekers, including from countries at war like Afghanistan. According to the 2022 universal jurisdiction annual review of Redress, an NGO that pursues legal claims on behalf of survivors of torture, five people including Arif, whose origins were not in the Netherlands, were under judicial process in the Netherlands in 2021 (see here for details of the cases).

What impact might this war crimes conviction have?

Since the Taleban came to power, many human rights organisations, media watchdogs and international organisations like the United Nations have alleged that they have conducted arbitrary arrests, torture, enforced disappearances and summary executions (see AAN’s report on the media and Reporters Without Borders’ report on the arrest of journalist, as well as this UN Secretary General’s report to the UN Security Council and Human Rights Watch’s report on summary executions and disappearances). Victims include members of the former government that collapsed in August 2021 and its armed forces, political opponents, human rights activists, women protesters and journalists. One of the latest reports is from Amnesty International, published on 21 March 2022. It alleged that in January and February 2022 alone, “more than 60 people including children faced either arbitrary arrest, unlawful detention or enforced disappearance at the hand of the Taliban authorities in Afghanistan.” Amnesty International investigated only nine cases and said the number of victims could be higher than it had reported. It believes that “any dissent is met with enforced disappearance, arbitrary arrests and unlawful detention.”

The fact is, however, that varieties of war crimes and crimes against humanity have been perpetrated by all parties over the last four decades, regardless of whether they were the government or armed opposition or were foreign soldiers fighting in Afghanistan. In the pre-2001 era, these are detailed in the UN Mapping Report and the Afghanistan Justice Project report and included the deliberate killing of civilians, torture, enforced disappearances and the targeting of protected places, items and property. More recently, since Afghanistan signed the Rome Treaty, making it a member of the International Criminal Court (ICC) in 2003, the Taleban, Islamic State of Khorasan Province (ISKP), the former government and the United States have all been named by the court as worthy of investigation for war crimes or crimes against humanity (see here for the ICC findings in 2017). 

However, even though the ICC has had an Afghanistan file open since 2007 and the previous Chief Prosecutor recommended an investigation in 2017 – which was accepted on appeal by the ICC’s Pre-Trial Chamber in 2020 – no investigation has begun. This is partly because of attempts at blocking it by the former government (see AAN’s reporton this). Then, in September 2021, the new Chief Prosecutor, Karim Khan, advised a scaling back of the investigation, with the alleged crimes of the former government and US military and CIA “deprioritised,” in favour of an ICC investigation only into the alleged crimes of the Taleban and the Islamic State of Khorasan Province (ISKP). The judges of the ICC’s Pre-Trial Chamber are currently deliberating over what to do. On 21 April 2022, Karim Khan wroteto the judges, reminding them that his office was awaiting their decision.

All of this means that the record on holding anyone to account for the war crimes of the last 40 years is thin to the point almost of invisibility. The ICC’s recent actions have, as AAN reported, given the impression that the court believes in a ‘hierarchy of victims’, with only the crimes of some perpetrators deemed worthy of investigation. Afghans and others have also noticed the haste with which the ICC set up an investigation into war crimes committed in Ukraine, compared with the long years of deliberation and delay and still no action on crimes committed in Afghanistan.

Arif has now joined the very small, select group of Afghans who have been tried and convicted of war crimes, just two in the Netherlands, one in the United Kingdom, one in Germany and one in Afghanistan (AAN’s report on trials in the Netherlandsthe UK and Afghanistan and German Practice in International Law’s notice on the trial in Germany). For the victims of those particular men, such convictions may provide some relief. These trials may also possibly have dissuaded some perpetrators from trying to find asylum in Europe, including in last summer’s exodus from Afghanistan – although countries in the region and the United States have, up till now, proved safer havens. On the whole, however, because such trials have been so very few in number, the criminal justice systems in Afghanistan and elsewhere have proved incapable of acting to deter either Afghans or foreign forces from perpetrating war crimes on Afghan soil. 

Edited by Kate Clark

References

References
1 In the publically-available text of the court’s verdict, Arif’s identity – both his real and false names – is not revealed; this is according to Dutch legal practice, as the verdict may still be appealed. Based on interviews with several witnesses and the Dutch prosecutors carried out by the author in December 2019, as well as the indictment presented at the last court hearing in February 2022, some of which the author watched online, the accused’s real name was confirmed to be Abdul Razaq Arif, spelled Arif on the Dutch court documents (عبدالرزاق عریف). However, the court accepted the prosecutors’ assertion that he had changed his name when he applied for asylum in the Netherlands in 2001 to Abdul Razaq Rarif (عبدالرزاق غریف) by adding a dot above the first letter of his name written in Persian, from 3ayn to ghayn. This forgery could be clearly seen in his original Afghan national ID card (tazkera), which was found at his daughter’s house in the Netherlands during a search (and had not been obvious on the copy of the tazkera submitted to the Dutch immigration authorities in 2001). 

Additionally, the judges cited other supporting evidence that the man’s real name was Arif, including his Afghan driving license which Arif had confirmed belonged to him; recordings of telephone conversations with his wife and other Afghan callers; listening to a confidential conversation happened between him and his son about his real name and finally, reading witnesses’ testimonies. In the judgement, Arif’s fabrication of his identity was mentioned as one of the difficulties faced by the investigation.

According to 2019 AAN’s interviews, when Arif applied for asylum, he also lied about his profession, telling the Dutch Immigration authorities he had been a school teacher in Afghanistan.

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Pul-e Charkhi Special Revolutionary Court war crimes war crimes trials

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