Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (50 page)

The decision not to release the UN report was only the latest of a series of backtracks by the United Nations on human rights concerns in Afghanistan. Despite repeated attempts, all efforts by the United Nations to undertake on‐the‐ground investigations into serious war crimes since the mid‐1990s have proved fruitless. These failures have left international non‐governmental organizations, other international actors and Afghans cynical about the prospect for the international community to do anything about the issue.

A short history of this record illuminates some of the reasons behind those failures, as well as continuing obstacles to investigating the past. The first effort by the United Nations to undertake a forensic investigation was initiated following the massacre of thousands of
Taliban prisoners in 1997. In May 1997, after the Taliban failed to take control of the northern city of Mazar‐i Sharif, some 3,000 soldiers were taken prisoner by General Malik, a former commander with the Junbish faction which had tried to seize power. According to witnesses, including survivors, the prisoners were systematically executed, their bodies left
exposed in the open desert or stuffed into wells.
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The massacre, unlike so many before it, attracted some press.
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In addition,
the Taliban called for an investigation. Over the course of the next year, the UN Office of the High Commissioner for Human Rights (OHCHR) sent two separate forensic missions to evaluate the sites and determine what would be necessary to undertake a full
exhumation. Despite requests by the Taliban leadership, the then special representative of the UN Secretary‐General, Lakhdar Brahimi, and the UN Security Council, the full investigation never took place. This failure only confirmed the
Taliban's view that the UN and its member states, who were by 1998 very vocal about human rights violations
by the Taliban, were partisan.

In August 1998 the Taliban finally took Mazar‐i Sharif, and exacted revenge on the community they blamed for betraying them the year before: the ethnic Hazaras. As they swept through the towns and villages west of the city,
the Taliban gained new recruits from local
Pashtuns who had suffered abuses, including rape, by Wahdat forces. The Hazaras, being Shia, were also apostates in the eyes of the most extreme members of the Taliban movement, and those two factors fueled a second massacre: at least 2,000 people, mostly Hazara civilians were killed. Witnesses claimed that the Taliban official who took over as governor of Mazar‐i Sharif incited the killings in public speeches, and that Taliban soldiers demanded that the bodies of those killed be left in the streets “to be eaten by dogs, like you did to us.”
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There is no doubt that revenge was one motivating factor in the second massacre. It could even be said that the UN's failure to properly investigate the first massacre hardened the Taliban's stance toward the rest of the world. From this time on, frustrated officials of humanitarian agencies on the ground began to talk about a cycle of impunity.

International attention to human rights concerns in Afghanistan has been plagued by inconsistency and selectivity. Since the fall of the Taliban, it has been shaped by two overriding preoccupations: fear of rocking the boat and thereby undermining Afghanistan's fragile stability – even if that stability has not translated into security for many Afghans – and the determination on the part of the United States to continue its fight against suspected terrorists on its own terms, in complete disregard of international law. Impunity for US forces responsible for ongoing human rights violations has rendered the prospect of pursuing accountability for past war crimes much more difficult.

Virtually all international and Afghan actors who have supported pursuing some kind of transitional justice process acknowledge that given the precarious security situation in the country, the only way such a process can have an impact is if it is undertaken gradually. Few envision that there will be any possibility of bringing to trial perpetrators of serious violations in Afghanistan any time in the near future; there is no real possibility of doing so within the country's enfeebled judicial system. However, other options both inside and outside the country do exist, and as of mid‐2005, there were several initiatives underway.

In recent years, countries that took in Afghan asylum seekers in the early 1990s have begun to look more closely at the war records of those who had held positions as senior military or political figures. In July 2003, Britain arrested Zardad Faryadi
Sarwar, a former Hizb‐i Islami commander who has been running a pizza franchise in London after obtaining asylum in Britain under a false name. Commander Zardad, as he was known in Afghanistan, was charged with torture and hostage‐taking. After an initial trial resulted in a hung jury, Zardad was convicted in July 2005 and sentenced to twenty years in prison, in the first such conviction in the United Kingdom under English law applying the Conventions against Torture and the Taking of Hostages. The response in Afghanistan to the news was resoundingly positive, with many Afghans suggesting other names (including those of commanders still inside the country) of those who ought to face similar charges. In October 2005, a Dutch court convicted two Afghans who had held senior positions within the secret police in the 1980s. Hesamuddin Hesam was sentenced to twelve years and Habibullah Jalalzoy to nine years imprisonment for torture and war crimes. Should other countries bring to trial Afghans charged with war crimes, it could send a powerful signal to others in hiding, or in power, that there will be no safe haven for them.

Despite disappointment among human rights groups and other NGOs over the UN's decision not to release the mapping report and over the perceived lack of support within the UN for any effort that names actual perpetrators or their crimes, there are some positive signs. The recommendations of the AIHRC's report provide the basis for a plan to gradually establish a number of mechanisms that could, if implemented, advance both the discussion of transitional justice in Afghanistan and its acceptance.

In December 2005, President Karzai signed the Transitional Justice Action Plan, a framework for establishing truth‐seeking mechanisms,
vetting procedures and other steps toward transitional justice. How well it will be implemented remains to be seen.

In the months before the national assembly elections scheduled for September 2005, the principal actors in the disarmament process – the Afghan government, the United Nations, the International Security Assistance force and the US‐led Coalition – instituted a vetting process to screen out candidates linked to illegal militias. Under the Electoral Law, no persons could stand as candidates if they “practically command or are members of unofficial military forces or armed groups.” The law also prohibited persons who had been “convicted of any crime including a crime against humanity” from standing for election, but in the absence of a functioning judiciary, no one had ever been so convicted. However, even vetting on the grounds of disarmament was fatally flawed. While it compelled some commanders to disarm, the more powerful were not touched, and only a handful of candidates were actually disqualified on these grounds. In some cases the Afghan government agencies involved, as well as the international ones, intervened either to protect clients or to allow a powerful commander to stand out of fear that disqualifying him would actually constitute a greater security risk. As a result, many candidates well‐known to be war criminals were elected. Low voter turnout was blamed in part on popular disappointment with the failure to keep out the warlords.

There is no question that there are genuine security concerns in Afghanistan, and as yet no institutions in the country to support the prosecution of major war criminals. Senior UN officials, from Brahimi to his successor as Special Representative, Jean Arnault, have long talked of sequencing: that transitional justice must wait for other institutional transformations before it is possible. But rather than a carefully considered plan of action in which transitional justice finds its place, the security deficit has been used to excuse interminable delays for the sake of political expediency. The argument that accountability will undermine stability is not unique to Afghanistan. Such claims are common in post‐conflict situations, though the risks are often exaggerated to suit political ends.
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The recent history of wars in Afghanistan makes clear that there is a strong correlation between past abuses and current abuse of power. It is a vicious circle: efforts to bury the past aggravate the very security risks and institutional weaknesses cited as reasons for avoiding addressing the past. In Afghanistan, those who benefit most from the failure to hold those responsible for war crimes to account include many powerful figures with links to criminal or extremist networks (or both). Among their ranks are political leaders who dominate the security and intelligence machinery, profit hugely from increased poppy production, suppress legitimate voices of dissent in the provinces, or incite attacks on
foreign aid workers. The power they wield means they pose a genuine threat to every effort aimed at preventing Afghanistan from sliding back into chaos. Confronting the crimes of the past, and those responsible for them, is a process, not an event. It is about many things: restoring dignity to the victims; marginalizing or reducing the power of the war criminals through judicial and non‐judicial mechanisms; and building institutions capable
of curbing future abuses.

It will be a long time before Afghanistan is ready to initiate any judicial action against the worst offenders. But to the extent that other measures, including
vetting, further documentation and symbolic acts acknowledging the victims of abuse move forward, even if slowly, then there is hope that the voices of Afghans who have called for a recognition of the truth as a first step will not be silenced completely. Transitional justice is about setting standards for the use of state power. In Afghanistan, beginning such an exercise would enhance the legitimacy of the current political process and the elected government.