[Reader-list] Afghanistan's "national heroes"

[S. Jabbar]

Amnesty and justice in Afghanistan: "a nose made of dough"


Author: 
Aziz Hakimi
Summary: 
In a bid to sweeten talks with disaffected Taliban, Karzai has revived a
controversial amnesty law praising the mujahedin as national heroes while
ignoring their crimes. If enforced, hopes that the toppling of the Taliban
in 2001 might still bring about government in line with justice, democracy
and respect for human rights will again be dashed, says Aziz Hakimi

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British newspapers including The Guardian [1] recently reported that a
controversial amnesty law, approved by Afghanistan parliament, is being
brought into force without having been announced in the weeks leading up to
the London Conference on Afghanistan. The amnesty precludes prosecution for
war crimes committed in conflicts during previous decades.

The amnesty law, under the title of the ³national peace and reconciliation
charter², was shelved for almost two years after being passed by a small
majority in January 2007 by both the Afghan house of representatives and the
senate. Although Afghan President Hamid Karzai was reported [2] to have
approved the law in March 2007, hailing it as ³Parliament¹s initiative for
strengthening peace in Afghanistan², the fate of the law remained unclear
until recently, with no reference to it in the Afghan Law Gazette.

In Afghanistan, publicising the document in the publicly available Law
Gazette is typically a prerequisite to the enforcement of any law. However,
this particular volume of The Afghan Law Gazette is not yet accessible to
public; another unusual step in Afghanistan.

Responding to Human Rights Watch [3]'s controversial 2006 report that had
once again accused the Mujahedin leaders of war crimes, the amnesty law was
designed to protect these still powerful figures from trial. Thus, the very
first article of this 12-point charter calls for respect of ³Jihad,
resistance and the righteous struggles² of the Afghan people and says: ³The
Soldiers [of Jihad and resistance] must be valued and treated appropriately
in the framework of the Islamic Republic of Afghanistan and be protected
from any type of bother.²

The third article refers explicitely to the Human Rights report, stating,
³The inaccurate reports of Human Rights Watch, published with regard to the
Jihadi leaders and Afghan national characters are originated from suspicious
intentions and thus Afghanistan National Shura [Parliament] announces them
as baseless.²

The fourth article states that all armed insurgents, by joining the
³national recounciliation process² will enjoy impunity. The law emphasizes
that ³no political group is excluded from this charter².

Accordingly, the document is considered by many legal experts as
contradicting the international conventions that Afghanistan has ratified.
Amnesty International has urged [4] President Hamid Karzai and the Afghan
parliament to immediately suspend this controversial piece of legislation.
Amnesty International and other human rights organisations, including the
Afghanistan Independent Human Rights Commission (AIHRC), have criticised
this attempt to provide legal impunity to perpetrators of human rights
violations, including the Taliban.

South African Reconciliation Experience

The Afghan amnesty law refers to similar processes in other post-conflict
states, particularly the South African reconciliation process which is
considered to be a relatively successful programme.

In South Africa the Truth and Reconciliation Commission [5] (TRC) was a
court-like body that was formed after the abolition of apartheid. Witnesses
who were identified as victims of gross human rights violations were invited
to give statements about their experiences, and some were invited to public
hearings. Perpetrators of violence could also give testimony and request
amnesty from both civil and criminal prosecution.

The condition of giving amnesty to the perpetrators was their admission to
the crimes they had committed under political (and not personal)
motivations. Rather than retribution, the objective was to document and
publicise the crimes and atrocities that had occurred during apartheid. In
addition, the commission gave compensation to the victims in the name of
restorative justice.

The Afghan amnesty law, by contrast, makes no mention of the suffering of
Afghan people who were subjected to frequent violations of their human
rights during the past two and half decades. Nor does it speak of any
aspiration to see justice for those who lost their beloveds in the
atrocities perpetrated by different Mujahedin groups as well as the Taliban
and other regimes. Instead it asks these victims to look upon the Mujahedin
as their national heroes and to never question their deeds.

Brad Adams, the Asia director of Human Rights Watch, told The Guardian that
the law was a "total abdication of the state's responsibility to investigate
and prosecute crimes". He added that although the law only protects
offenders from prosecution by the state, it is unlikely that individuals
would pursue private cases "in the current context of impunity and the very
real fears of reprisal".

Another incentive for the Taliban?

President Karzai¹s decision to enforce the law is related to the recent
reconciliation plans to persuade the Taliban to lay down arms; efforts that
the Taliban have already rejected [6] as ³futile² and ³farcical².

Karzai appears to be surrendering the right to justice in a political gamble
endorsed by a naïve international community. Afghans are concerned that
neither the recent peace plans nor the implementation of the amnesty law can
persuade the Taliban to end their fight.  In contrast, implementing the
amnesty law has the potential to secure greater support for the Taliban at
the local level.

Karzai and his team must be reminded that back in 1994, the then tiny
Taliban led by Mullah Omar won the support of locals when they rioted
against a local warlord in Kandahar. Almost nine years after their misrule
was ended, locals in many villages prefer the Taliban because they are
sickened by the high level of corruption, failed judicial systems and
widespread impunity that local public officials are granted.

President Karzai¹s decisions seem to be illogical. Many Afghans are puzzled
as to why Karzai and his team believe they can buy off the Taliban at a time
when NATO commanders themselves admit that the insurgents are at the peak of
their strength.

Although the insurgents know that they cannot win the battle through
conventional military advances, they are well aware of the effectiveness of
their ongoing war of attrition. They are also aware that public support for
sending forces to Afghanistan is plummeting among ISAF partners and that the
major powers are deliberating on a swift exit strategy.

Moreover, the Taliban will not compromise their existence by accepting peace
offers. From the Taliban's perspective, the government¹s conditions for
talks ­ laying down arms and accepting the very same Afghan Constitution
they consider un-Islamic and fight to change ­ are tantamount to surrender.

Desperate measures

Furthermore, implementing the amnesty law legalizes the culture of impunity,
shields former warlords against any criticism, ignores the voices raised by
both international and national organizations on human rights conditions and
justice in the country and disappoints more Afghans who hoped that they
would, one day, witness the rule of law in their war-torn country.

Desperate measures to bring peace and stability will result in nothing more
than what we Afghans call ³a nose made of dough², one that only fills an
ugly gap, but is useless for smelling and breathing.