Afghanistan Analysts Network – English

War and Peace

Taleban Prisoners Release: Are the latest proposals legal?

Ehsan Qaane 13 min

President Ashraf Ghani has proposed the sequenced and conditional release of 5,000 Taleban prisoners, in response to the 29 February United States-Taleban agreement which said up to 5,000 Taleban prisoners would be exchanged for up to 1,000 prisoners of ‘the other side’. The Taleban have bluntly rejected this proposal. Nevertheless, the Afghan government is standing by the terms of the decree, saying that any prisoner release will be carried out according to Afghan law. AAN’s Ehsan Qaane looks at whether Ghani’s proposal can open the way for the intra-Afghan negotiations to start and what Afghan law has to say about releasing prisoners (with input by Sayed Asadullah Sadat).

Inmates and guard during Taleban prisoner release in Bagram jail, 2014. Photo c/o Tolonews.

A dispute about the how and when of a prisoner exchange between the Afghan government and the Taleban has led to a delay in the intra-Afghan negotiations that were due to start on 10 March 2020. The swap was an item in the 29 February US-Taleban agreement (see AAN reporting here) and Ghani – who had not consented to the exchange – had registered his objections, as he saw it as a repudiation of Afghan sovereignty. 

A day after the US-Taleban agreement was signed, on 1 March 2020, Ghani suggested in a press conference that any action to release prisoners must be discussed during direct negotiations with the Taleban. Meanwhile, the Taleban had insisted the US needed to resolve the issue.

Despite his irritation at being pushed into the prisoner swap by the US-Taleban agreement, President Ghani took a more moderate position after the US recognised him as the winner of the September 2019 presidential election. On 9 March, US Special Envoy for Afghanistan Reconciliation Zalmay Khalilzad attended Ghani’s presidential inauguration, while Dr Abdullah, Ghani’s main challenger in the September 2019 election – the result of which was only published in mid-February 2020 (see a media report here; AAN election reporting here) – held his own inauguration with only minor international attendance. Ghani used his second tenure inauguration speech on 9 March to announce his proposal on the prisoners. He has suggested having a framework that would condition prisoner release on “a significant reduction in violence” (AAN translation). (1) The following day, the decree was issued and some of it was published on Twitter by his spokesperson, Sediq Sediqi, who said the aim of the decree was to pave the way to start “negotiations between the Islamic Republic of Afghanistan and the Taleban group.” 

The presidential decree provides for some guarantees around the prisoner release, and a clear sequencing. (2) Article 1 lays out two pre-conditions for the release; first, the collection of the prisoners’ biometric data (most of which should already be on file), and second, their “written commitment not to return to the battlefield” against the Afghan government. Article 2 lays out the timing for a first batch of 1,500 prisoners to be released from Bagram jail, to happen before the start of the intra-Afghan negotiations. These 1,500 would be freed over the course of 15 days, 100 per day, starting from 14 March. They would be selected based on their “age, health conditions and remaining period of imprisonment.” Article 3 says that 3,500 additional prisoners would be released during the negotiations, “500 prisoners every two weeks,” which would take 14 weeks or 98 days, “based on the condition that the level of violence is significantly reduced.” Article 4 puts the Afghan National Security Council (NSC) in charge of the implementation of the decree and orders other relevant government entities to cooperate with the council.

On 14 March, Jawed Faisal, spokesman for the Afghan National Security Adviser’s office, was quoted as saying the releases were being delayed because the government wanted more time to review the list of prisoners.

The US-Taleban deal had said the exchange of prisoners would take place before the start of intra-Afghan negotiations on 10 March 2020 “as a confidence building measure.” It stipulated that the prisoners to be exchanged would be released “with the coordination and approval of all relevant sides.” The inclusion of the caveat “up to five thousand” in the agreement means 5,000 is the upper limit. IT is not a rigid commitment, so the 1,500 that president Ghani is offering to release prior to the negotiations is actually compatible with the agreement. The agreement also says that “all the remaining [Taleban] prisoners” will be released over the subsequent three months. This would be very close to the 14 weeks offered by the presidential decree for the release of the 5,000 prisoners.

The Ghani decree includes conditions for the prisoner release, including forswearing enmity with the Afghan government and reducing violence. This is not mentioned in the US-Taleban deal, in which the Taleban promised only that “its released prisoners will be committed to the responsibilities mentioned in this agreement so that they will not pose a threat to the security of the Unites States and its allies” – ie not attacking US and allied forces. (3) 

Could Ghani’s decree on prisoner release open a way to negotiations?

By promising to release 1,500 Taleban prisoners before negotiations began, Ghani has already made a compromise, according to his advisor, Wahid Omar. It does indeed reflect a shift from the president’s previous refusal to release any prisoners before talks began, as stated in a press conference the day after the signing of the US-Taleban deal. Omar reiterated the government’s argument that releasing 5,000 prisoners in ten days was, in practice, impossible, saying in a Facebook post that it could instead be “part of a process.” He objected to the Taleban’s demand for the unconditional release of prisoners, saying it was “not possible.” 

The Taleban, however, have rebuffed the terms of the decree, insisting all 5,000 of its men must be released before any talks begin. Suhail Shahin, the spokesperson of their Doha office, tweeted on 10 March 2020 that all 5,000 prisoners should be released and that they should be those on a list which they had given to the US. To avoid any errors, he proposed that a Taleban delegation should double check the prisoners’ identities with the list, either in prison, or in a “desert area,” presumably meaning a place outside government control. However, this is a stretch of the text of the US-Taleban agreement, which contains the “up to” caveat. The US-Taleban agreement also does not mention any ‘list’ of prisoners (unless they are contained in the secret annexes to the agreement; see media reporting here).

Before the Taleban’s reaction to Ghani’s decree, US envoy Khalilzad had urged in a series of tweets that both Afghan parties “sit down immediately for talks on this issue in Doha, Qatar, to work out the details.” He referred to the fact that the Afghan government had already agreed to do so and said: “When implemented, this will be a significant step in the peace process.”

The selection of those to be released is also proving controversial. The Taleban insist that those on the list they submitted to the Americans should be the only prisoners released, a point made in a tweet by a Taleban spokesman in Doha, Suhail Shahin on 10 March 2020. 

The Afghan government has assumed they will control the selection of prisoners for release. With, according to media reports,  an estimated 10-15,000 Taleban in Afghan government custody, this gives the government plenty of room for selecting or overlooking Taleban of particular interest. Article 2 of the presidential decree already paves the way for such choices by saying “the age, health conditions and remaining period of imprisonment” would be considered in the selection of prisoners. These criteria are ambiguous; age could give preference to juvenile or elderly prisoners, for example. A “senior Afghan security official,” quoted by Reuters, said Ghani “will release Taliban prisoners who are above the age of 52.” Health would probably favour those who are ill, while the remaining imprisonment period could prioritise those who have served or are close to completing their prison sentence. Such scope for interpretation will no doubt be of concern to the Taleban. 

AAN asked for the exact number of Taleban prisoners in Afghan government custody from the Taleban spokesperson, Zabihullah Mujahed, and President Ghani’s spokesperson, Sediq Sediqi, various times over the past four weeks. However, neither responded with information. 

The law: does the president have the right to pardon criminals?

The constitution gives the president the power to “Reduce and pardon penalties in accordance with the provisions of the law.” (article 64, para 18). However, there are two conditions. Firstly, the president can reduce or pardon “penalties” and secondly, it must be done “in accordance with the provisions of the law.” The reference to penalties means only those who have been convicted and sentenced can be pardoned. Those who are still under investigation or currently being prosecuted could not be legally pardoned. There may, indeed, be a significant number of people in extended pre-trial detention, including those in the custody of the National Directorate for Security (NDS). The constitution does not contain provisions for releasing such people.

In relation to those who have been convicted, the law has some specific provisions in the General Amnesty and National Reconciliation Law (the ‘amnesty law’ – see AAN analysis here and here) and Annex 1 of the Criminal Procedure Code. 

a) The amnesty law

The amnesty law was passed by the Afghan parliament in 2007. It provides a general amnesty for those involved in conflicts before 2001, as well as those fighting against the Islamic Republic of Afghanistan in the post-2001 era, such as the Taleban. However, in the case of individuals fighting in the post-2001 conflict, the law has some conditions:

Those individuals and groups who are still in opposition to the Islamic Republic of Afghanistan and cease enmity after the enforcement of this resolution and join the process of national reconciliation, and respect the Constitution and other laws and abide them shall enjoy the benefits of this resolution.

(Article 3, para 2) 

It is clear the amnesty applies to fighters who agree to reconcile; it has no provision for blanket amnesties for prisoners. It would seem that releasing Taleban prisoners could not be done under the amnesty law. 

Article 4 of the amnesty law concerns those convicted of crimes against internal or external security, and allows for pardons or reduced sentences based on the recommendation of the Commission for Consolidation of Peace. However, this commission was closed in 2010 when the High Peace Council was established. Convicts in this category are required to commit to ending all anti-government activities, a commitment which the Commission for Consolidation of Peace was charged with endorsing. The law also specifically refers to the need for separate decrees to grant pardons or reduce sentences, rather than mandating a general amnesty. (4) According to a source in the NDS, this article could only apply to Taleban detainees who have been convicted of committing crimes against internal and external security or terrorist crimes. According to the article, those who are still under investigation for these crimes could not be pardoned.

The amnesty bill also contains a very strong provision, which is rooted in sharia lawThis states that the amnesties referred to in Article 3 will not preclude the right of individual victims to make claims against the perpetrators of individual crimes (haq ul-abd). According to sharia, even the Prophet Muhammad did not have the power to ignore victims’ rights. This right is secured in paragraph 3 of article 3 of the bill as below:

The provisions set forth in clause (1) and (2) of this article shall not affect the claims of individuals against individuals based up on haq ul-abd (rights of people) and criminal offences in respect of individual crimes.

If the amnesty law was the basis of Taleban prisoner release, it would raise the issue of whether victims had assented to this.

b) Annex 1 of the Criminal Procedure Code

Annex 1 of the Criminal Procedure Code, which was endorsed by President Ghani in a decree in September 2016 and published in the office gazette, number 1222, had originally said that those who have been convicted of terrorist crimes and crimes against internal and external security will not be granted pardons or reduced sentences (article 10). However, Ghani amended this article twice since 2016. In September 2018, four more ‘unpardonable’ crimes were added: war crimes, crimes against humanity, genocide and aggression. These were criminalised for the first time in the Penal Code. Then, in October 2018, terrorist crimes and crimes against internal and external security were removed from the list of unpardonable crimes, perhaps in anticipation of a potential prisoner release.  

Although the restriction over terrorist crimes and crimes against internal and external security was revoked, the restriction on releasing those convicted of war crimes and crimes against humanity is still in force. Some of the crimes committed by the Taleban do rise to the level of war crimes and crimes against humanity. Although these were not the crimes they were convicted of, the issue may still be relevant. The International Criminal Court Office of the Prosecutor, in her preliminary finding, showed that the Taleban have allegedly committed a number of war crimes and crimes against humanity since 2003. The prosecutors’ request to launch a full investigation was approved on 5 March 2020. Part of the rationale for the ICC’s intervention is the Afghan government’s inability or unwillingness to prosecute such crimes (AAN’s reporting on the decision here). This restriction should present obstacles for large-scale prisoner releases, particularly if it includes the highest-ranking Taleban. 

What were the reactions?

The Afghan government tried to reassure the public when it announced its prisoner release plan that the release would both ensure a significant reduction in violence and facilitate the commencement of intra-Afghan negotiations. However, multiple concerns have been raised.  

The Afghanistan Independent Human Rights Commission (AIHRC) raised a number of concerns about the prisoner release in an open letter published on 3 March. It noted a lack of public information about: who would be released; how it would be done; the oversight mechanism to ensure that prisoners would not go back to the battlefield and; how the victims’ right to seek justice would be protected. AIHRC also noted the lack of information about the prisoners, although, it “regularly monitors prisons.” Neither the government, the Taleban nor the US have responded, in public, to the AIHRC’s questions. AIHRC chairperson Shaharzad Akbar has responded with concern, a 10 March Facebook post she wrote about the “lack of transparency about an important step [releasing prisoners] in the peace process is worrying.”

Wadud Pedram, a member of Transitional Justice Coordination Group (TJCG) – a coalition of 26 individuals and organisations working on behalf of war victims – believes that some of the Taleban prisoners are war criminals. Pedram has argued that the government does not have the right to pardon them unless it has obtained the consent of the victims. Pedram pointed to the legal right of victims based on Annex 1 of the Criminal Procedure Code and the sharia principle of haq ul-abd.

Kabul-based 8am newspaper has also sought views from the public. On 7 March, it published the results of an online survey held over five days from 2 to 6 March. Of the 19,500 people who participated, 87 per cent ‘voted’ against releasing prisoners before the intra-Afghan negotiations started, and only 13 per cent voted in favour. Presidential spokesman Sediqi welcomed the survey and argued that “this survey show that the majority of nation is against releasing of Taleban prisoners before their [Taleban’s] readiness for a ceasefire and negotiations with the Islamic Republic of Afghanistan.” This statement came before Ghani had announced his proposal to release 1,500 prisoners before the negotiations. 

The survey did not detail the views of those who disagreed with the notion of any prisoner release. Other media did. The Baztab news agency, also Kabul-based, for example, quoted Rahman, the 90 year-old and father of a police officer killed by the Taleban saying that the government could not release Taleban prisoners, as it does not have “any basis” for such an action. “The Taleban would only continue their attacks against national security and people,” he said.

Afghan politicians outside the government and political parties have not reacted yet. Only Abdullah Abdullah, the main competitor of Ghani in 2019 elections, announced his support for the release of the 5,000 Taleban prisoners in advance of the negotiations. His statement came before he and Ghani held their separate inauguration ceremonies on 9 March. His position towards peace has often contrasted with Ghani’s position, in particular his opposition to setting preconditions for starting direct talks with the Taleban (perhaps placing himself in line with the US strategy about Afghanistan peace).

AAN has also sought to find out what Taleban prisoners might think. One Taleban prisoner in Pul-e Charkhi prison, who spoke to us on 4 March on condition that he would not be named, said he was happy about the US-Taleban agreement, in particular the release of prisoners: “This is a gift from God and our political leaders in Doha. This is the result of our unity and resistance.” He claimed to have bee falsely convicted, insisting that, before his arrest, he had had no relations with the Taleban. The NDS had accused him, he said, in 2015 with supporting his uncle, a commander with the Haqqani network. He estimated that around 2,500 prisoners suspected of, or charged with being members of the Taleban are being held in Pul-e Charkhi, but “more or less only 500” of them were arrested on the battlefield. He believes many of the other prisoners were tried on false accusations, as he said he was. 

Conclusion

President Ghani has very few levers to try to pressure the Taleban into speaking directly to his representatives and addressing the concerns of the ‘Kabul side’. Taleban prisoners are his main point of influence. Despite agreeing to the release of 1,500 prisoners in advance of talks and 3,500 others over the course of the first 98 days of negotiations, the Taleban are still refusing to talk to his government.

Compromise is the essence of negotiations. So far, only President Ghani seems to be making concessions. In the last four months, he has crossed three of his ‘redlines’, most recently agreeing to release prisoners before negotiations start. Prior to this, in November 2019, he swapped three leaders of the Haqqani network, Anas Haqqani, Hafiz Rashid and Mali Khan, for two professors of the American University in Afghanistan (see media report here). He also backtracked in accepting a weeklong reduction in violence, having previously insisted there must be a permanent, or at least a one-month long ceasefire before intra-Afghan negotiations could start. His remaining redlines are defending the ‘republic’, the constitution and the last 18 years’ achievements, including human and democratic rights, including the freedom of media. 

Yet the commencement of the intra-Afghan negotiations will require compromises by other parties. The Afghan government is hoping that the sequencing and conditioning in its recent decree will be accepted by the Taleban and negotiations can begin. The Taleban still insist on their two demands, that 5,000 prisoners will be released in advance of the negotiations and, specifically, that they will comprise those who are on the list they submitted to the US. Recent tweets from Khalilzad suggests he agrees with President Ghani’s position. However, there is no sign yet that the Taleban are ready to compromise, or to engage with Ghani’s proposal. For his part, it seems that Ghani will not now just agree to release the 5,000 men on the Taleban’s list.

Edited by Rachel Reid, Thomas Ruttig and Kate Clark

(1) The official English translation of the speech mentions “a framework where significant reduction in violence will take form in exchange for releasing Taliban prisoners.” (The word ‘Taliban’ was not in the original bilingual Dari/Pashto speech.)

(2) Here are the full text of Sediqi’s tweets:

Article one: prisoners who are released as a result of this decree are required to make a written commitment not to return to the battlefield. The release of prisoners included in this decree will happen after the completion of their biometric process.

Article two: the amnesty and release of 1,500 prisoners of the Taleban from detention centres and prisons as an indication of goodwill will start on 24 Hut 1398 (14 March 2020). Each day, 100 Taleban prisoners will be released based on consideration of their age, health situation, and the remainder of their prison term.

Article three: after beginning and during the negotiations between the assigned delegation by the Islamic Republic of Afghanistan and the Taleban group, every two weeks, 500 Taleban prisoners, the total of which is 3500, will be released based on the condition that the level of violence is significantly reduced.

Article four: the office of NSC (National Security Council) has the responsibility to implement this decree. Other relevant offices are obliged to cooperate.

Muhammad Ashraf Ghani

President of Islamic Republic of Afghanistan

(3) This part of the US-Taleban agreement stipulates:

The United States is committed to start immediately to work with all relevant sides on a plan to expeditiously release combat and political prisoners as a confidence building measure with the coordination and approval of all relevant sides. Up to five thousand (5,000) prisoners of the Islamic Emirate of Afghanistan which is not recognized by the United States as a state and is known as the Taliban and up to one thousand (1,000) prisoners of the other side will be released by March 10, 2020, the first day of intra-Afghan negotiations, which corresponds to Rajab 15, 1441 on the Hijri Lunar calendar and Hoot 20, 1398 on the Hijri Solar calendar. The relevant sides have the goal of releasing all the remaining prisoners over the course of the subsequent three months. The United States commits to completing this goal. The Islamic Emirate of Afghanistan which is not recognized by the United States as a state and is known as the Taliban commits that its released prisoners will be committed to the responsibilities mentioned in this agreement so that they will not pose a threat to the security of the United States and its allies.

(4) Article 4 of the Amnesty Law says: 

(1) Those people who are under prosecution due to crimes against internal and external security of the country shall not enjoy the benefits of this law.


(2) Those people who are sentenced to crimes against internal and external security of the country shall be forgiven or their punishment mitigated by separate decrees, according to the situation and based on recommendations and guarantee of the Commission for Consolidation of Peace, in case of they commit, not to resume their activities against the Islamic Republic of Afghanistan.”

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peace talks Taleban prisoner exchange

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