Earlier this month, former warlord and Afghanistan’s first vice president Abdul Rashid Dostum met with the leaders of two Afghan mainstream political parties to discuss the need to reform the government. Another warlord and Balkh’s governor Atta Mohammad Noor accused President Ashraf Ghani of monopolizing power and political autocracy.
Against the the backdrop of a bloody offensive by the Taliban and a political crisis unfolding in Kabul, the key issue of justice has once again come under question. With the warlords now threatening the stability of the government, the Afghan government’s approach –using amnesty to achieve peace — has come to haunt Afghanistan’s transition toward democracy.
Amnesty has been a long-accepted strategy to end hostility and forge peace agreements. Providing amnesty for certain crimes is one of the elements of the disarmament process, meant for achieving peace and stability. The importance of amnesty is reflected in Article 6(5) of Protocol II to the Geneva Conventions, which talks about “granting the broadest possible amnesty to persons who have participated in hostilities.” The article, however, doesn’t specify what crimes are entitled to the provision of amnesty.
To avoid confusion, the International Committee of the Red Cross (ICRC), in its reinterpretation of the article, asserted that the article encouraged amnesty only for “wartime crimes of hostility that are consistent with international humanitarian obligations and not for war crimes that would violate them.” The hostility here may refer to “acts of mere hostility” such as treason, sedition, and rebellion. While amnesty remains an important aspect of the peace-building process, there is increasing recognition that limitless amnesty may hurt the process of state building. Internationally, there are growing demands for states to prosecute certain crimes such as genocide, torture, and selected war crimes.
The failure of former Afghan President Hamid Karzai to document past war crimes and the decision of Ghani to continue with the Amnesty Law, which provides blanket amnesty to those involved in the past and present conflicts, brought into light the need for transitional justice in Afghanistan. There has been a growing demand among Afghan civil society activists that the International Criminal Court (ICC) must open investigation into war crimes and crimes against humanity in Afghanistan. One member of the Afghanistan Transitional Justice Coordination Group, Horia Mosadiq, while calling upon the ICC to initiate a full investigation into the situation in Afghanistan, said:
We have witnessed the adoption of six peace agreements in the last 40 years, each accompanied by blanket amnesties for perpetrators of the most heinous crimes in the name of peace. Today we have neither peace nor justice for the thousands of victims still suffering from the waves of repression and violence in Afghanistan. It is time for accountability for these crimes.
According to the 2016 report by the ICC Office of the Prosecutor (OTP), since the Afghan government signed the Rome statute on May 1, 2003, war crimes and crimes against humanity have occurred in Afghanistan but no one had been prosecuted for such crimes in this period so far. As the OTP deliberated its decision to ask the ICC Pre-Trial Chamber to open an investigation, the Afghan government requested a delay, as such an act could derail the peace deal with Hezb-i-Islami and its leader, Gulbuddin Hekmatyar. According to a Human Rights Watch report, at the height of fighting in July and August 2002, Hekmatyar’s forces destroyed hundreds of homes in Kabul and raped women during offensive operations.
As part of the peace deal between the Afghan government and Hezb-i-Islami, Hekmatyar’s name was removed from the UN sanctions list. This was done in the hope that the Taliban would follow suit and join a similar peace process. But, this appears far from happening, considering Taliban’s growing offensive in the region.
In his speech at the Presidential Palace in May 2017, Hekmatyar stressed the importance of forgetting the past. He added that “there is no court in Afghanistan to prosecute warlords. The government is not strong enough to do so. Personally, I am not interested in the prosecution.” This appears to be true in the case of Dostum who allegedly ordered the torture and rape of a former politician and ex-governor of Jawzjan province, Ahmed Ishchi. Even as Ghani’s attorney general opened a criminal case against Dostum and his nine bodyguards, Dostum flew to Turkey with no charges filed against him. He had done so previously in 2008 over allegations that his personal militia had abducted, beaten, and sexually assaulted a political rival in Kabul. The failure of the Afghan government to prosecute Dostum reflects the shortcomings of Afghan judicial institutions.
The lack of clarity to address certain crimes remains a concern for the credibility and legitimacy of the Afghan government. Although the Cabinet approved a new draft penal code to criminalize war crimes, genocide, crimes against humanity, and aggression on March 2, 2017, it is yet to approved by the Parliament.
In the last three decades, no party in Afghanistan has shown interest in demanding justice for past crimes. The politics of accommodation and short-term measures for achieving stability have further delayed the progress to bring forth the truth. In a country that is still in the conflict phase, transitional justice remains a young field. As often argued by proponents of justice-based transitions, the failure of governments to hold perpetrators of grave crime responsible could lead to retributive violence, and a descent back into civil war. As the same warlords, some of whom have now become politicians, threaten to overturn the government, it remains to be seen if Ghani’s gambit for peace over justice pays off or costs the people of Afghanistan a stable government.
Neha Dwivedi is a postgraduate research scholar at the Department of Geopolitics and International Relations, Manipal University.