Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (47 page)

Patricia Gossman

Afghanistan Justice Project

Afghanistan differs in important respects from other countries currently struggling with the problem of addressing past abuses. Afghanistan's transition from the repressive
Taliban regime was not brought about by a popularly backed revolution, nor by a negotiated power‐sharing accord among all parties to the conflict. Since the fall of the Taliban regime in November 2001, there has been no formal national or international agreement on any truth, reconciliation or judicial process to deal with the past – nor that there should be any such process at all. In fact, there has not as yet been any formal peace agreement, and the country is not yet at peace. Continuing conflict throughout broad swathes of the country's southern provinces, as well as in pockets in the north, imperils basic reconstruction efforts and has left civilians vulnerable to continuing abuses – in many cases by the same armed factions responsible for past war crimes.

Afghanistan's demographic indicators also present challenges to political actors who want to pursue a process leading to accountability for past violations. As of mid‐2005, Afghanistan had experienced twenty‐seven years of conflict, beginning with a bloody revolution, and followed by foreign occupation, civil war and back to international conflict. The endless war has devastated a country that was already at the margins in terms of every indicator of human development. Afghanistan ranks as one of the poorest countries in the world, and among the bottom ten countries in terms of basic human development, measured by infant and child mortality, life expectancy, access to health care and clean water, and general literacy.
[1]

It is perhaps the most heavily armed country in the world, measured in per capita quantity of small arms. Its economy is one of the weakest in the world, and its illicit economy far outstrips legal government revenue and foreign aid combined. Its illegal economy is based primarily on the production of opium; it can be said that as of 2005, the afghani, the national currency, was the only opium‐backed currency in the world. Control of the country's currently exploitable resources, along with
traditional social ties, makes up a large part of the power base of the militarized patronage networks – the leaders of which are frequently referred to as “warlords” – that represent the greatest obstacle to security in Afghanistan.
[2]
These leaders and the power they wield both within the government and outside it also constitute the greatest challenge to pursuing accountability for past violations as well as curbing ongoing abuses.

There are layers to Afghanistan's wars that also complicate the prospect for addressing past abuses. This was not one war, but a series of wars with the ongoing struggle between US forces and remaining
Taliban and Al‐ Qaeda only the latest phase (along with continuing outbreaks of hostilities among competing factions in other parts of the country). Each time power changed hands in Kabul, the new authorities claimed their right to govern on the grounds that they had vanquished the abusive or corrupt regime that preceded them, and that they would now bring just rule to Afghanistan. The rhetoric of the communist revolution proclaimed an end to the tribal aristocracy, and the promise of land reform, mass literacy and education for women; the Islamic State of Afghanistan took credit for vanquishing an occupying atheistic power and sought to restore Islamic values to the country;
the Taliban were initially motivated by a determination to rid the country of predatory warlords and (again) restore Islamic values. But in each phase, the new regime – or in the case of the civil war period, 1992–96, the competing factions – undermined the legitimacy of its own rule by abusing state power against its perceived opponents.
[3]
And so, the cycles of atrocities and conflict have continued. The US‐led Coalition and its allies toppled the rigid and idiosyncratic authoritarian rule of the Taliban, and vowed to build a democratic nation‐state. But as Coalition forces continue to engage in abuses, including arbitrary arrest, detention without due process – often in secret facilities – and torture, they have undermined their own authority and that of
President Karzai's government.

The historical record of Afghanistan's quarter‐century of war is sketchy, with huge gaps in the limited documentation. Although Afghan human rights organizations functioned either inside the country or from Pakistan at different periods of the wars, their efforts were circumscribed by the precarious and repressive conditions under which they had to work. International human rights organizations made a valuable contribution, but their visits to the region were infrequent and also limited in part by the lack of security. Thus, a significant obstacle to pursuing
accountability is the absence of an impartial, well‐researched and methodologically sound analysis of many of the major incidents of the wars. There is no dearth of witnesses and forensic evidence, but there is an enormous lack of capacity for field research and a need for thorough training in human rights documentation. Even under ideal security conditions, these would present major obstacles. As it is, Afghans engaged in human rights research face serious risks from the ongoing conflict and threats from powerful political actors.
[4]

The war began with the communist revolution of April 27, 1978. In the twenty months between the coup that brought to power the Marxist‐Leninist People's Democratic Party of Afghanistan (
PDPA), and the Soviet invasion of December 24, 1979, Afghans experienced some of the worst atrocities of the entire conflict. The new regime, bent on the eradication of the old order and the elimination of any political or social opposition to its reform policies, rounded up and imprisoned, and then executed, tens of thousands of people.
[5]
In the countryside, village elders, religious leaders and schoolteachers were executed. Some religious and ethnic minorities were targeted, particularly the Shia
Hazaras. In the cities, royalists, Maoists, internal faction members and members of the newly formed Islamist parties were imprisoned or killed. This period is perhaps the least well‐documented of the war; few journalists had access to the country, and it was not before several more years that human rights groups began sending investigators to the refugee camps.

Ironically, the PDPA was eager to carry out reforms that nominally promoted fundamental rights, including education for girls and women, and a more equitable distribution of land. However, the regime's approach to implementing these reforms was brutal, and any opposition was crushed. Popular resistance to the regime's atrocities grew into a major military uprising. By late 1979, the army was on the point of collapse, and the regime was faltering. Hundreds of thousands of refugees had taken shelter in Iran and Pakistan, where faction leaders established bases for military resistance and channels for foreign assistance. Fearing imminent chaos on its southern border, the
Soviet Union invaded.

Under the Soviet occupation mass executions declined, but the arrests of persons suspected of any ties to the opposition increased. Torture was widespread, and there are a number of documented cases of Soviet officers supervising the use of torture techniques. In the countryside, mass bombing was used to destroy the bases of support for the resistance among the civilian population. The result was catastrophic; hundreds of thousands of civilians were killed, and vast areas of the country laid
waste as irrigation systems, orchards and farmland were systematically destroyed.

Despite US rhetoric about human rights violations by Soviet forces as part of its Cold War campaign against the Soviet occupation, the imperative for US policy was to secure a Soviet defeat. There was no discussion of accountability in the negotiations that culminated in the Geneva Accords and the Soviet withdrawal. The last Soviet forces left Afghanistan in February 1989, and on November 28, 1989, the
Supreme Soviet adopted an amnesty excluding the possibility of prosecutions of any of its forces for deliberate or indiscriminate attacks against Afghan civilians.
[6]

If there was little international interest in accountability for Soviet war crimes in Afghanistan, there was even less concern among the international patrons of Afghanistan's warring factions for what followed in the wake of the Soviet withdrawal. The government of President Najibullah held on to power in the cities for three years.
[7]
In April 1992, the government collapsed as mujahidin and local militia
forces overran the city.

The next phase brought the war to Kabul for the first time. The Islamic State of Afghanistan (ISA) was nominally a coalition government that included many of the mujahidin factions and militias, but its second president, Burhanuddin
Rabbani, head of the Jamiat‐i Islami party, refused to cede the presidency to anyone else after his four‐month term had expired, and thus drove most of the other factions into open revolt as they claimed strategic portions of the city for their own. All of the competing factions had a distinct ethnic base, and they targeted civilians for reprisals or extortion on the basis of ethnicity. The civil war period saw nearly five years of brutal fighting within Kabul. Outside Kabul, rival commanders carved up the country into their own fiefdoms, paying their troops with the spoils of battle and looting the country's limited infrastructure.

It was out of this chaos that the Taliban emerged in late 1994. Their early military successes won them the support of Pakistan as well as that of some Saudi officials and other Saudi sponsors, whose considerable financial and military backing enabled the Taliban to take control over most of the country, including Kabul, in less than two years, and most of the north two years after that. The Taliban quickly acquired international renown for their abusive treatment of women; less well‐known was their record of massacres, particularly of minorities. On October 15, 1999, in support of its demand that the Taliban end the use of Afghanistan as a base for international terrorism and hand over Usama bin Laden, the United Nations
Security Council imposed limited
sanctions on the Taliban through Resolution 1267. The Security Council strengthened its sanctions through the adoption of Resolution 1333 on December 19, 2000. Neither the Taliban, nor any other party to the conflict came under sanctions for war crimes, even though virtually all of Afghanistan's neighboring states were involved in providing materiel support to favored clients.
[8]

Even the sanctions against the Taliban were a charade. Through 1999 and 2000, while endless rounds of UN‐sponsored negotiations among the so‐called Six‐plus‐Two countries (Afghanistan's neighbors plus the United States and Russia) went nowhere, Pakistan continued to pour in weaponry, advisors and student “volunteers” to help the Taliban take more and more of the country.
[9]
The only crime the Taliban committed – other than their repressive treatment of women – that ever received international condemnation was the destruction in March 2001 of the ancient Buddhas of Bamiyan in central Afghanistan. The Taliban's long record of massacres and burnings in the very same region went virtually unnoticed.
[10]

Afghanistan's transition from the Taliban regime to the current administration came about because of the
US response to the attacks that took place on September 11, 2001. The present government of Afghanistan remains in power largely because of that foreign intervention. This distinguishes Afghanistan's transition from many others, though not all, that have taken place in recent years. US policy in Afghanistan has been shaped almost exclusively by this overriding preoccupation with the continuing conflict
against Al‐Qaeda and the Taliban. The way the military factions opposed to the Taliban – all of whom had the backing of US‐led Coalition forces – inserted themselves into positions of power immediately after the Taliban collapsed has impeded efforts to prevent further abuses and pursue justice for past crimes. A significant number of leaders in senior positions of power in Afghanistan today, from provincial governors to police chiefs to members of the administration in Kabul, have been responsible for serious war crimes. Other powerful warlords continue to have inordinate political influence behind the scenes.

In December 2001, a conference bringing together the major military factions that had allied themselves with the US‐led Coalition in ousting the Taliban, along with other prominent Afghan political groups – most notably the supporters of the former king,
Zahir Shah, who was deposed
in a coup in 1973 – was held in Bonn, Germany. The meeting was held under the auspices of the United Nations, and hosted by the government of Germany, with the United States playing a key role to ensure that the outcome suited its interests in its continuing efforts against the Taliban and
Al‐Qaeda. Indeed, as the negotiators in Bonn hammered out an agreement, the US‐led Coalition forces continued to arm, fund and train forces associated with the faction leaders meeting in Bonn, as well as more autonomous armed groups, to fight the Taliban and Al‐Qaeda.
[11]
What came out of the negotiations was a power‐sharing agreement, and not an equitable one. It allotted most of the more important ministries to leaders from a single military faction, the Tajik
Shura‐i Nazar, based in the Panjshir valley in north‐eastern Afghanistan. Thus, from the outset, the Bonn Agreement left many
Afghans dissatisfied with what they saw as an unrepresentative
administration.

International actors involved in shepherding Afghanistan's political transition through first an “interim” and then a “transitional” administration, and on to presidential and parliamentary elections – principally senior US and
UN Assistance Mission in Afghanistan (UNAMA) officials – have publicly argued that they could not have prevented these factional leaders from claiming positions of power once the Taliban fell. Off the record, others have acknowledged that the entrenchment of these factional leaders was due to US pressure to include them in positions of power.
[12]
When the Taliban fled Kabul in November 2001, the ethnic Tajik Shura‐i
Nazar faction moved into the city first, despite official appeals by the United States and United Nations not to do so until an international agreement on an interim administration could be reached. But the move by the Shura‐i Nazar fueled well‐founded suspicions among the other factions that it would try to retain power in whatever new power structure took shape. Indeed, the Shura‐i Nazar immediately gained control of the ministry of defense, foreign affairs and the ministry of the interior. In an effort to mollify other ethnically based factions, the minister of the interior was later replaced by
an ethnic Pashtun, but many Shura‐i Nazar loyalists remained within the ministry.