Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (48 page)

The problem was not isolated to Kabul, nor limited to the Shura‐i
Nazar. In many other parts of the country, commanders from various factions have become presumptive authorities, in some cases replicating the situation that prevailed after the communist government fell in 1992 and the country was engulfed in civil war. The post‐2001 re‐entrenchment of local commanders who hold sway over the populations under their control has been exacerbated by the fact that the United States has supported some of these commanders when they have seen them as a useful bulwark against penetration
by Al‐Qaeda. The entrenchment of the warlords was not inevitable,
but a consequence in large part of the Pentagon's policy. While there was no support, understandably, for including any former Taliban leaders in the Bonn negotiations, the failure to identify and include more than a bare handful of credible ethnic
Pashtun leaders in the political administration created left many Afghans with the impression that Pashtuns as a whole were to be stigmatized whether or not they had supported the Taliban. This has helped fuel resentment in the southern and eastern “Pashtun belt” of the country, some of which translated into support for a resurgent
Taliban.
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In late 2004, following the presidential elections, a number of international actors were developing a strategy to persuade former Taliban fighters and other armed factions who had not been represented at the Bonn negotiations to accept a cease‐fire with the government, and to identify individuals from these groups who might be acceptable candidates for some governmental positions, or who might form political parties. Such an approach might have defused support for the more extremist elements of these parties. The way the transition took place left little scope for addressing past abuses. During the closed sessions at Bonn, a heated discussion took place over the idea of an
amnesty for war crimes. The original draft of the agreement, written
by the United Nations, stated that the interim administration could not decree an amnesty for war crimes or crimes against humanity. This paragraph nearly caused the talks to break down after a number of powerful faction leaders told their supporters that the paragraph was aimed at discrediting all Afghans who took up arms, and that foreigners would use the agreement to disarm them. Principal among those making this argument was Abdul Rasul Sayyaf, a former professor of Islamic law at Kabul University and the powerful leader of the Islamist Ittihad‐i Islami (Islamic Union), a party responsible for massacres and other war crimes that had amassed enormous support from Saudi sources, and brought many Arab fighters to join the
jihad
(the fight against the Soviet occupation) into Afghanistan in the 1980s.
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UN Special Representative Lakhdar Brahimi argued forcefully in favor of keeping the paragraph prohibiting an amnesty, but in the end, the paragraph was removed, leaving open the possibility for an amnesty, though none has yet been proclaimed.
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While the delegates did not want to include a paragraph they thought could be read as maligning the mujahidin, they were also aware that amnesties have a bad name in Afghanistan's history. When the Islamic State of Afghanistan was formed after the fall of the Najibullah government in 1992, the first president, Sibghatullah
Mujaddidi, proclaimed a general amnesty to promote national reconciliation. While it is doubtful that it had much impact, it caused deep resentment among many of the
mujahidin factions who objected to what they saw as an attempt at reconciliation with the communists or those who supported them. Despite some fears that the same political
leaders would argue for an amnesty during the constitutional convention in December 2003, the constitution does not include it.

The passions stirred by the Bonn debate reveal much about the quandary facing Afghanistan's new reformists. Arguably the most serious obstacle to establishing the rule of law in Afghanistan is the ubiquitous presence of armed militias, some of whom answer to recognizable political leaders – when paid – and some of whom operate throughout the country virtually autonomously. How to demobilize these troops is a question with which Afghan authorities, together with the United Nations have been struggling ever since the
Bonn Agreement was signed. The agreement calls for all armed forces to be withdrawn from Kabul, but resistance to such efforts has come from some of the country's most powerful leaders.

According to a journalist with long experience in Afghanistan who accompanied
Northern Alliance forces into Kabul in November 2001, commanders from various factions anticipated that they would be disarmed immediately after Bonn.
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That they were not indicated that the United Nations yielded to the United States, who was a reluctant partner in the initial stages of the demobilization effort, preferring to grant discretionary powers to groups they consider useful in the fight against
Al‐Qaeda. Long after the armed groups were well entrenched, the United Nations and the United States argued that disarmament takes priority over other concerns, including transitional justice.

The UN and Afghan government's Disarmament, Demobilisation and Reintegration (DDR) program, was finally launched in February 2003. DDR has been implemented through the
Afghan New Beginnings Program, the main phase of which began in May 2004. Its initial objective had been to demobilize some 60,000 Afghan fighters before the national elections. By the time the elections were held, the numbers fell far short of that goal.
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The program has continued to make slow progress, with many commanders resisting full demobilization, and some very likely hiding caches of weapons.

Demobilizing thousands of troops involves much more than simply destroying weaponry (all of which can be easily replaced in the arms bazaars of Pakistan). Nor is it realistic to expect thousands of militia forces, many of whom have known no other life than that of battle and
the attendant criminal activities that provide the funds to feed and pay them, to take up another livelihood especially where alternatives are scarce.
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International actors involved in the process have been stymied in their efforts to create alternative employment opportunities as international aid has fallen far short of what had been promised.

The slow demobilization effort is intimately intertwined with efforts to promote accountability for the past. In late 2004, former mujahidin blocked the roads in Panjshir to halt the scheduled handover of heavy weaponry, and
Payam‐i Mujahid
, the organ of the Jamiat‐i Islami party of former president
Rabbani, claimed that the United States and United Nations were planning to use human rights and narcotics charges to prevent mujahidin from running as candidates for parliament after disarming them so they could not resist.
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As with the amnesty debate in Bonn, some mujahidin leaders – particularly those aligned with Rabbani and Abdul Rasul Sayyaf, whose militia force that had been allied with Rabbani in the 1990s – continue to claim that any effort to address past abuses represents an effort to malign the mujahidin.

In the rhetoric of these leaders, disarming fighters connotes a dishonorable discharge from the
jihad
, and it is seen as a way of shaming those who fought. As one analyst involved in discussions on the demobilization efforts has argued, if the faction leaders convince their fighters that the foreigners want to arrest them for war crimes, they will never agree to demobilize.
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The presence of thousands of former fighters who have not disarmed remains the greatest single threat to Afghanistan's security.

However, fear of retribution and the lack of other livelihoods are not the most important reasons Afghanistan's former fighters do not want to hand over their weapons. Even for those who might be incorporated into a new national army, the process has been fraught with difficulties. Former defense minister in the transitional government, Muhammad Qasim Fahim, a member of
Shura‐i Nazar, resisted efforts to demobilize his own militia and instead tried to incorporate most of it into the new national army. Not surprisingly, other commanders and faction leaders saw a Panjshiri Tajik‐based national army as a threat to their security, and consequently were reluctant to demobilize their own troops. Some of Sayyaf's commanders in the 10th division have also been incorporated into Kabul's security forces. Progress to create a more ethnically balanced
and professional army has been slow.

The power of the “warlords” and their ability to block efforts to transfer power to a more legitimate leadership or ever answer for their own crimes is also linked to the country's war economy. Immediately after the
Bonn Agreement was signed, the international actors – the US‐led Coalition and the major donors, along with the UN – had more
leverage with the promise of badly‐needed reconstruction funds to influence the behavior of the interim leaders. It took eighteen months after Bonn for
President Karzai to finally get an agreement from the regional governors to hand over hundreds of millions of dollars in tax revenue, only after he threatened to resign if they did not comply. However, how well the governors have adhered to their promise is another question.

In the years since Bonn, many of the most powerful commanders in Afghanistan have come to depend on a more reliable and lucrative income from the country's illicit economy, and are thus far less dependent on foreign assistance to pay their militias, buy their weaponry and otherwise influence events on the ground. The recently rebuilt police cannot possibly compete. During a visit by the UN Office of Drugs and Crime, local opium traffickers had the use of four‐by‐four vehicles, satellite phones and automatic weapons. The police had bicycles.
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If the national police cannot interdict drug traffickers, it is not likely they will be able to take action against war criminals either, especially since they are in some cases precisely the same people.

The Bonn Agreement established an interim administration and laid out a timetable for the holding of a grand assembly, or Emergency
Loya Jirga, to select a transitional
administration to govern before elections in 2004. The Loya
Jirga took place in June 2002 and ratified the next phase of administration, the Afghan Transitional Administration (ATA).

After it was over, senior UN and US officials argued that the Loya Jirga represented the best that could be done in a country as ethnically divided and lacking in democratic institutions as Afghanistan. This is partly true. The selection of delegates to the assembly was an astounding achievement, as men and women chosen by district representatives from across the country gathered in the first such democratic experiment to take place in the country's history. The delegates arrived fully expecting they would have in their hands the power to make decisions about who would govern the country for the next two years before national elections. But the
Loya Jirga was also, in the end, a betrayal of that very achievement. The rules governing the selection of delegates from the districts to attend the
Loya Jirga stipulated that persons against whom there exist serious allegations of war crimes or other abuses could not be delegates. Unfortunately the rule was rarely enforced, largely because of pressure within
UNAMA not to challenge some powerful commanders.
Thus, the Loya Jirga represented another moment when US policy interests, fears within UNAMA
about not alienating powerful and dangerous political figures, and simply bad management discredited the political process.

Moreover, contrary to the rules governing the selection of delegates, a number of political delegates were added at the last minute, among them commanders accused of war crimes. And rather than choose their leaders, the assembled delegates, under the watchful eyes of gun‐toting commanders and warlords who were supposed to have been banned from the proceedings, found that many of the crucial decisions had already been made in back‐room deals involving the United Nations, the United States
and Shura‐i Nazar.
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The delegates had anticipated that they would have a say in the selection of the president and the cabinet. That choice was denied them. The former king, Zahir
Shah, was compelled by the United States and the Shura‐i
Nazar to announce that he would not seek office. The way his stepping aside was orchestrated caused deep resentment among his
Pashtun supporters. Nor did the delegates have any say in the selection of the
cabinet, which remained largely as it had been before the
Loya Jirga, with all the most important ministries in the hands of the Shura‐i Nazar. Even UN officials who defended the results of the Loya Jirga at the time acknowledged more than a year later that an opportunity to weaken the grip of the warlords was squandered for the sake of short‐term stability.
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Present at the assembly were a significant number of men and women chosen by their own communities, persons whose presence signaled the possibility of the emergence of new leaders in the country. But they were sidelined because the warlords were what the United States thought it needed at the time.

In December 2003, the Constitutional
Loya Jirga was held, and the composition of the administration changed. Despite efforts to manipulate the process, delegates from parties with strong ethnic bases failed to shape the constitution to their purposes. Defense Minister Fahim, who had wanted a single vice‐president, lost out: the constitution calls for two vice‐presidents. Later in 2004, Fahim was dropped as defense minister and given neither vice‐presidential slot on
Karzai's ticket in the national presidential elections. Despite fears that he might mount a show of arms in response, nothing of the sort happened. Instead, he has joined the opposition party of former education minister Qanuni (who made a poor showing in the presidential election).
As a result, the Constitutional Loya Jirga helped dispel some myths about the presumed legitimacy of the faction leaders as necessarily representing the political interests of ethnic groups. Afghanistan's ethnic groups are not always united in what their political interests might be. The debates on the constitution saw virtually all of the country's ethnic groups divided
over key issues, and no “ethnic bloc” emerging around any particular leader. Ethnicity is as much a political variable in Afghanistan as it is anywhere else in the world. Various faction leaders have had the support of their “ethnic constituencies” when those constituencies have been threatened or feared losing out politically against Afghanistan's larger ethnic groups. But support for these ethnic faction leaders is partial, conditional, contested and context‐specific.
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