Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (49 page)

These would‐be ethnic constituents have also been the victims of their very leaders. Many members of Afghanistan's
Shia Hazara ethnic minority speak out vehemently against Hizb‐i Wahdat, an alliance of principally Hazara parties, and its more notorious commanders, many of whom have been responsible for summary executions, torture and rape. Similarly, the powerful ethnic Uzbek leader Abdul Rashid Dostum is reviled as much as he is feared in his own northern stronghold. During the negotiations over the constitution, other Uzbek leaders keen on weakening Dostum's grip were willing to make compromises on some issues of regional autonomy so long as they could bring back to their constituencies tangible gains on recognition of the Uzbek language and other issues. However, ethnic interests played some part in the proceedings.
The ethnic Pashtun delegates too did not initially represent a united front, but organized themselves into three separate groupings: the monarchists supporting a greater role for former king Zahir
Shah, Pashtun democrats supporting a parliamentary system, and neo‐Taliban Pashtuns along with Sayyaf's supporters who sought a greater emphasis on Islam and predominance given to Islamic sharia law. In the end, they all perceived that their self‐interest lay in a strong presidential system, if only because the non‐Pashtun delegates opposed it, and because President
Karzai himself is a
Pashtun.
[25]

The passions stirred by the Bonn debate about the legacy of past abuses were revived during the Constitutional
Loya Jirga. After Sayyaf had maneuvered to ensure that a mujahidin leader headed all the important working committees, one young delegate boldly called the faction leaders who were present “criminals” and accused them of destroying the country, being vehemently anti‐women, and making Afghanistan the nucleus of international war. She called for them to be tried in national or international courts. Her remarks caused an uproar, and Sayyaf tried to have the delegate ousted from the proceedings for criticizing the mujahidin. He failed, but following threats from sources supportive of Sayyaf's position, the delegate has since had the protection of the UN in her home district.

Shortly after the conclusion of the Constitutional
Loya Jirga, Kabul Television broadcast footage of a speech Sayyaf made in 1993, during
the height of the civil war. In that year, Sayyaf's forces were playing a major part in the massacre of
Hazaras and the destruction of the areas in which they lived in west Kabul. The video clip showed him boasting: “We have destroyed much of Kabul, but there are still some buildings left. We will destroy these too, to make way for the City of God.” The clip may have had an effect on other leaders as well. Defense Minister Fahim (who at the time had his eye on one of the vice‐presidential slots in the upcoming presidential elections), visited west Kabul in February 2004 and acknowledged that his troops were likewise responsible for the destruction of its neighborhoods and for other unspecified “crimes.” Citing security concerns, he departed the area without taking questions from residents, some of whom were reportedly gathering to protest his visit.
[26]

The reversal of fortunes for some political factions has raised the stakes for the parliamentary elections, where leaders who lost influence and power after the constitution and the presidential elections hope to regain it. In May 2005,
shabnama
(literally, “night letters,” pamphlets distributed anonymously at night) began appearing in Kabul urging people to reject the “American‐imposed” government and calling on voters to elect mujahidin for parliament. The
Payam‐i Mujahid
article appears to represent a growing unease among some mujahidin leaders that their human rights records may be used against them in the parliamentary elections.

Afghanistan's new institutions remain extremely fragile. Its courts are not capable of ensuring due process in handling even ordinary criminal cases. Efforts to reform the judicial system have been slow, and transitional justice is not part of the mandate of the ministry of justice.

The Bonn Agreement stipulated that the Afghan judiciary was to be independent. The new Afghan Constitution, signed on January 4, 2004, also states that the judiciary “is an independent organ of the state of the Islamic Republic of Afghanistan,” consisting of the Supreme Court, High Courts, (Appeal Courts), and Primary Courts.
After the Bonn negotiations, Italy was asked to spearhead donor and UN efforts to assist the interim and transitional Afghan administrations in the area of judicial reform. But progress has been slow.

The Judicial Commission encountered serious political obstacles from the outset. The first appointees were all linked either to the interim administration's ministries or to the Supreme Court. When it became clear that the commission could not overcome its own internal rivalries
nor operate independently, it was disbanded. By the time the next Judicial Commission was appointed in November 2002, the administration had already adopted several important laws.
[27]
More important, the Chief Justice of the Supreme Court,
Fazl Hadi Shinwari, an Islamist and former head of a religious school in Pakistan, where many
Taliban recruits were also educated, had appointed a large number of mullahs (Muslim religious teachers) as judges at district and provincial courts across the country, and had created a “fatwa council” in the Supreme Court to issue religious edicts.
[28]
Even if Shinwari were to be replaced, he has already left his imprint on the courts. Shinwari's like‐minded colleagues made sure that the courts are authorized to rule any law contrary to the “beliefs and provisions” of Islam, potentially undermining the fundamental rights guaranteed in the 2004 Constitution. Principal among Shinwari's backers has been Abdul Rasul Sayyaf.

As of May 2005, only one case has been tried in Afghanistan in which the defendant was charged with war crimes, and the fact that the case reached the courts at all represented something of a fluke. The defendant, who was charged with a range of crimes, only some of which constituted human rights violations or war crimes, had no defense counsel, witnesses were not subject to cross‐examination and
the presiding Chief Justice of the Supreme Court called for the death penalty before the defendant was convicted. Subsequent investigations by human rights organizations indicated that while there appeared to be sufficient evidence to convict the defendant on the war crimes charges, other charges brought against him were possibly fabricated.
[29]
On April 19, 2004, the defendant was executed on the orders of
President Karzai, apparently in response to political pressure from Sayyaf, whom the defendant had named as giving orders for a number of massacres that had taken place in Kabul in the early 1990s.
[30]
Sayyaf holds no official political office but commands authority among Afghanistan's Islamist leaders, and has his own militarized political base west of Kabul. Members of his militia have been granted senior
positions in the city's new security apparatus.

The Bonn Agreement called for the establishment of independent commissions to oversee the rebuilding of the judiciary, the monitoring of human rights, drafting the constitution and selection of civil servants. Of these four, the Afghan Independent Human Rights Commission (AIHRC), the only agency charged with addressing past crimes, has
been the most successful. Though plagued with many problems common to a new organization operating in an impoverished and underdeveloped country, including weak management and research skills among its staff, the AIHRC has begun to make its presence felt. In its first year it established seven regional offices and launched a national consultation to survey Afghans about how to address past abuses. It has also issued briefings on specific areas of abuse, launched educational programs, and established a system for monitoring and collecting data on a range of human rights violations. Not surprisingly, some of its staff have already encountered hostility from the administration; some have received threats. Insecurity in many parts of the country has prevented the commission from operating effectively in those areas.

Despite resistance from international and Afghan actors, there are indications that nascent Afghan civil society is beginning to put some pressure on the Afghan government, significant donors and the UN to develop a strategy and mechanisms for addressing the legacy of the past. In November 2003, the AIHRC launched a national consultation process to assess public opinion about whether and how to bring to justice those persons responsible for the most serious crimes of the past. The report was given to
President Karzai and made public at a press conference in January 2005.

The exercise alone was a significant achievement in a country completely lacking in any of the modern technological tools for assessing public opinion.
[31]
Thirty‐two of Afghanistan's 34 provinces were visited by teams who conducted a survey of 4,151 individual respondents and separately convened 200 focus groups with over 2,000 participants. Refugee communities were surveyed separately. The report notes that:

 

In each focus group discussion people were overwhelmingly willing to discuss these issues. There seemed to be a sense of gratitude at the concept of being consulted at all. A man in Salang district of Parwan became quite emotional while responding to the survey questions, saying: “Now I feel that I am a part of this society, nobody ever asked our view on such important decisions.” A man in Qandahar said: “So far, no‐one has asked us: what do you, victims, want? Do you desire revenge? Do you want housing? Food?” In one of the village focus groups (in Doman), participants said they considered the consultation an extraordinary opportunity for the people of Afghanistan, mentioning that no one since King Amanullah Khan [1919–29] consulted the people on a national level.
[32]

 

The report's findings reveal an understanding among many Afghans about both the difficulties involved in pursuing justice and the need to find an approach that combines some measure of retributive justice with reconciliation. Among the report's recommendations were:

• vetting for official appointments;
  

• provision for further documentation of war crimes;
  

• appropriate mechanisms for truth‐telling;
  

• the establishment of a special investigations unit or prosecutor's office to begin investigating past war crimes; and
  

• symbolic steps to commemorate the victims.
  

While what the AIHRC's respondents meant by “justice” is not entirely clear, what AIHRC staff and others involved in compiling testimony about past abuses have discovered is that Afghans have expressed a need for the truth about the past to be exposed.

As discussed below,
UNAMA's human rights office has begun discussions on some of these recommendations, including vetting procedures. In October 2004, an independent organization, the Afghanistan Justice Project, published a report detailing some of the major war crimes of the war between 1978 and 2001. It made similar recommendations, stressing in particular the need for methodologically sound documentation and getting information into the public domain.
[33]

The AIHRC has also had to struggle against US intransigence. In March 2005, at the Human Rights Commission in Geneva, US pressure succeeded in terminating the mandate of the Independent Expert on Human Rights in Afghanistan, who was at the time Cherif
Bassiouni, a professor of law who had served as Chairman of the UN Security Council's Commission to Investigate War Crimes in the Former Yugoslavia. The United States argued that because of the progress toward democracy in Afghanistan, the country did not need an independent expert. Bassiouni commented that “without a UN Independent Expert, the Afghan Independent Human Rights Commission as well as civil society in that country will not have that external support to advance human rights.”
[34]

During
Bassiouni's tenure as UN Independent Expert, the United States blocked all of his efforts and those of the AIHRC to inspect detention facilities. Bassiouni had particularly condemned US use of “firebases” to hold detainees, facilities not accessible to the ICRC, in violation of the Geneva Conventions. In explaining why they have denied access to the AIHRC, US military officials have gone so far as to state that they “are not sure the AIHRC are good guys or bad
guys.”
[35]

The AIHRC report was to be released together with a 300‐page report prepared by the
Office of the High Commissioner for Human Rights
mapping major incidents of war crimes and serious human rights violations committed by all parties to the conflict in the course of the war, but in the weeks before the scheduled release of the UN report, UNAMA pressed the High Commissioner, Louise Arbour, not to make it public.
UNAMA officials argued that a public release would endanger UN staff,
[36]
and complicate negotiations surrounding the planned demobilization of several powerful militias, including one loyal to Sayyaf. They also argued that as a “shaming exercise,” the report raised expectations that neither the United Nations nor the Afghan government could meet: namely, that something would be done about the individuals named in the report.
[37]

In authorizing the “mapping” exercise in the first place, the OHCHR had stated that the undertaking was in support of the AIHRC's consultation, with the explicit understanding that the reports would be released simultaneously precisely because the UN report did what the AIHRC report could not do, for security reasons: describe specific incidents, and identify the perpetrators. Not releasing the report may or may not have reduced risks to UN staff, but it is likely to have increased them for the AIHRC. Days after the AIHRC press conference, Burhanuddin
Rabbani, the head of Jamiat‐i Islami and the controversial president of the Islamic State of Afghanistan during the factional fighting in 1992–96, and Sayyaf held a meeting to denounce the AIHRC report as “anti‐mujahidin,” even though it named no individuals and discussed only in general terms the fact that
war crimes had been committed in all phases of the war.