In September 2013 a list of 4785 disappeared people in Afghanistan dating back to the early 1980s was published by the prosecutor’s office in the Netherlands. The list included the names of many of those who had been forcibly disappeared under the communist regimes of Noor Mohammad Taraki and Hafizullah Amin governments from April 1978 to December 1979. The list includes students, teachers, government employees, mujahideen and others detained and killed because they were considered a threat to the government. The list also includes their ‘crimes’, including those of being Ekhwanist, Khomainist, Ashrar, Maoist or having any anti-regime political affiliation.
To recognise how remarkable the publication of this list is requires an appreciation of the long struggle for justice waged by victims of Afghanistan’s protracted conflict, with successive regimes victimising various groups of people stigmatised as the ‘other’ or the ‘enemy’.
Afghanistan has been struggling with conflict since the late-1970s, when a bloody national coup prompted the Soviet Union to invade it. The decade-long Soviet occupation and the ensuing conflict between different Mujahideen factions resulted in killings, massacres, internal and external displacements and loss of property and livelihoods. The Taliban movement emerged in the mid 1990s as a reaction against the chaos of the civil war. The Taliban received little international recognition, and this contributed to pushing Afghanistan further towards the brink of humanitarian crisis. The Taliban’s harsh and discriminatory justice victimised especially women, ethnic and religious minorities.
After more than three decades of conflict, many in Afghanistan have done things that they prefer not to speak of; most Afghan families have been victimised by the conflict in one way or another. In a place like Afghanistan, then, transitional justice cannot be reduced to digging up dirt about every individual known to have been involved in the conflict, for it would be impossible to provide solace for all the suffering. However, the strategy adopted by the international community and the Afghan government during the past decade in the effort to bring peace and stability to Afghanistan has been to allow some of the worst perpetrators back into power. As a result, the suffering of their many, many victims has been ignored.
At the time of writing, early 2014, Afghanistan has neither peace nor stability. The international military presence is being dismantled – and with it part of the civilian presence – while the conflict between the Afghan government and the Taliban insurgency seems to be escalating. There are many reasons why peace and stability have not been attained in Afghanistan. One is that no official peace negotiations have taken place (the deal struck in the aftermath of the fall of the Taliban in 2001 aimed not at peace, but at power-sharing between the vaqueros of the conflict). Another, we argue, is that many of the worst perpetrators have returned to power without having had to acknowledge their past acts. As a result there has been no real break with the past, no real transition.
Transitional justice and reconciliation
The wars in Afghanistan have been fought with limited attention to international humanitarian and human rights law. At every stage of the conflict the civilian population has suffered either direct violations or has been subject to the secondary effects of conflict: lost opportunities, lost livelihoods, poverty and displacements. However, the length of the conflict and the nature of the power-sharing enacted in 2001 have made it difficult to put issues of accountability, justice and acknowledgement of the suffering of the victims on the table.
While fighting was still ongoing inside Afghanistan in 2001, the UN hosted an international conference aimed at establishing a transitional government, and to plan the early stages of the state-building process. The UN was wary, because of its experience of facilitating transitional governments in Kosovo and East Timor. The solution opted for in Afghanistan was to establish an all-Afghan transitional government. Unfortunately, this effort was not borne of an actual peace process; instead those who had been fighting alongside the US were given a disproportionate share of the power, and the Taliban were not even invited to take part in the discussion. Although a more comprehensive peace process might have been difficult in 2001, not even attempting one resulted in lopsided power-sharing and a flawed transition. It certainly also contributed to the re-emergence of the Taliban as a formidable fighting force just a few years later.
There have been short-lived and fragile efforts to promote accountability for past crimes and acknowledgment of the suffering of victims. During the early years of the state-building process, the Afghanistan Independent Human Rights Commission (AIHRC) was the main champion of transitional justice, that is, of developing processes for dealing with legacies of conflict-related violence and violations. It conducted a national consultation on how Afghans wanted to deal with the past and mobilised international support to push the Afghan government to adopt an Action Plan for Peace, Justice and Reconciliation, which included elements of truth-seeking, institutional reform and accountability. Over the past year few years the AIHRC has been under great political pressure and has grown increasingly weaker. It has not so far been able to release what is probably its major achievement to date — a report documenting war crimes in Afghanistan from 1978 to 2001. Afghan civil society did attempt to take over where the AIHRC had left off, advocating for transitional justice on the platform of the Transitional Justice Coordinating Group (TJCG) particularly. However, civil society mobilisation in Afghanistan tends to go through short-lived bursts of momentum, making it a challenge to build long-term strategic partnerships. This was also the case with the TJCG that today is struggling with internal conflicts, lack of direction and insufficient funding.
The opponents of transitional justice have been more successful. In 2007, the Afghan parliament passed an amnesty law that provided blanket amnesty for all those who had been engaged in the Afghan conflict. The ‘spirit’ of the amnesty law has also fed into the reconciliation programmes tried in Afghanistan that have all focused on bringing combatants back into the fold of society.
Death lists and apologies
The death list that was released in September 2013 received a lot of attention in Afghan and international media. For example, the Hasht-e-Subh (8AM), a national newspaper, published the list and produced accompanying articles for more than a week; the Afghanistan Analysts Network, an international research organisation, came with a deep analytical dispatch. The Afghan government announced that it would hold two days of national mourning, organise Fatiha ceremonies in mosques, and build a memorial mosque and minaret for the victims at Pul-e Charkhi. The location of the Pul-e Charkhi prison is significant because many of the disappeared were detained there before they were killed. So too with the location of many mass graves – none of which have yet been investigated. Afghan civil society also arranged programs including candle marches, visits to some of the mass graves, conferences and Facebook pages to collect biographies of the victims.
Most important was, however, the reaction of Afghans in general. Over the past decade, Afghans have had to watch individuals who they consider responsible for war crimes and human rights violations return to political power, while there has been little acknowledgement of the suffering of victims of that conflict. When the list was published, at least some people found out what had happened to their loved ones. The families of some victims held collective Fatihas in the mosques, as did some families who did not find the names of their loved ones on the list but had come to accept the disappeared persons were most likely dead. For those whose names had been found on the list or even for those still disappeared, some form of closure – although not justice – had now been achieved.
On 7 October, soon after the release of the death list, a former ethnic Uzbek warlord, General Abdurrashid Dostum, released a statement publicly apologising for crimes committed during the wars. General Dostum had command-and-control functions during three different periods of the conflict, as a militia commander during Dr Najibullah’s regime and as head of his own political party Junbish Islami Afghanistan — first during the 1990s civil war and later in the opposition to the unrecognised Taliban regime. In his apology, General Dostum did not refer directly to crimes committed by himself or anybody under his command; he kept the apology broad. He said:
“I would like to be the first person to say that we apologize to all who have suffered on both sides of the wars […] We want to be the initiator of a new era and a new tradition in which others will also declare their past mistakes bravely and with courage and that all of us can join together to prevent a repetition of these mistakes.”
In addition, he acknowledged that all Afghan ethnic groups had suffered during different phases of the conflict, and that none of their leaders could wash their hands from that responsibility. He urged that acknowledgement of the pain and suffering of victims as the only way to achieve sustainable peace in Afghanistan.
Although welcomed by many, the apology was most likely motivated by General Dostum having been nominated as one of the Vice Presidents in Ashraf Ghani’s presidential campaign. The more democratically-minded and intellectual presidential candidate, Ghani, may have demanded that General Dostum apologise to appease, in advance, those who were likely to criticise him for having a former ‘warlord’ on his presidential ticket. There may also be an ethnic dimension to the apology: Ghani is Pashtun and General Dostum is Uzbek; many of those who have suffered violations by Dostum and his men are also Pashtun. .
Whatever was behind the apology, it was welcomed by human rights activists who hoped that Dostum’s apology might lead to change. This apology was not the first of its kind, however. On 10December 2006, President Hamid Karzai had made an emotional speech (after he saw a short documentary film about the victims) in which he announced the 10December as National Day of Victims. However, those who have suffered violations during the different phases of the conflict in Afghanistan have not yet received an official apology on behalf of the government that is comparable, for example, to the apology made by Australian PM Kevin Rudd in February 2008 to Australia’s Aboriginal ‘stolen generations’.
The release of the death list and a few disparate apologies are, of course, not enough. And even if it is very difficult to move towards justice in the midst of conflict, the Afghan government and its international partners have a duty to move forward on these issues. Many Afghan civil society organisations are awaiting the publication of the AIHRC’s conflict mapping report that documents violations in Afghanistan from 1978 to 2001, as this could provide them with tools for further advocacy work and also for developing victim-centered justice mechanisms. However, no release date has yet been established for this report – neither by the AIHRC nor by President Karzai. Many are also awaiting the results of the ongoing preliminary examination on Afghanistan by the International Criminal Court (ICC). In its annual report on progress on preliminary examinations in November 2013, the ICC concluded that it believed some of the post-2003 violations to have occurred in Afghanistan would meet the ICC threshold. Any ICC investigation while Afghanistan is trying to move towards a peace process will not be seen favourably by many, but it does send the signal that justice is also an issue on the agenda.
In the current situation it is not easy to see how Afghanistan can move forward without addressing its past and present human rights violations and war crimes. The Bonn Conference in 2001 could have been an opportunity in which to begin to unpack the legacies of past violations. However now, more than a decade later, it is a much more complicated security situation and it seems unlikely that political will and other necessary means can be mobilised for transitional justice. Yet, addressing legacies of past and present violations remains crucial. The publication of the death list and the reactions to it showed that Afghans want to know the truth and find some solace in that closure.
~This article is a part of Reclaiming Afghanistan: web-exclusive package.
~Sari Kouvo is co-director and co-founder of the Afghanistan Analysts Network. She is a Human Rights Lawyer with a focus on Afghan justice system, women’s rights and the human rights situation. Mohammad Ehsan Qaane is a Researcher for the Afghanistan Analysts Network (AAN). He has served as the National Coordinator for the International Center for Transitional Justice’s (ICTJ) Afghanistan Program and as a member of the research team with the Afghanistan Independent Human Rights Commission (AIHRC).