Human Rights Week
To Mark National Victims Day in Afghanistan
9 December 2014
Venue: French Institute of Afghanistan
Ms Sima Samar, Chairperson of the Afghan Independent Human Rights Commission;
Mr Ashraf Bakhtiyari, Head of Afghanistan Forensics Services Organization; Mr Ehsan Qaneh from the Afghanistan Analysts Network; and Mr Abdullah Ahmadi from the Cooperation Center for Afghanistan
Moderator: Mr. Rahim Jami
Tuesday, 9 December, was the third day of the Human Rights Week. Civil society activists, students and citizens of Kabul attended the Goftegu public debate titled “What does Transitional Justice mean to Afghans? Going beyond intentions and acting practically to build peace at the national level”.
Transitional justice requires the Afghanistan government to take practical steps
Ambassador of Finland His Excellency Ari Mäki made the opening speech: Three decades of war in Afghanistan have claimed many lives and brought great misery for the people. Regardless of whom I have spoken to in Afghanistan, they were unanimous in emphasising the rule of law and respect for human rights.
Government of Afghanistan has examined the past human rights violations to some extent. Transitional justice is a very sensitive and time-consuming process, which would also depend on the national political conditions. To implement transitional justice, the Afghanistan government is required to take practical steps and needs the support of the international community. Afghanistan Independent Human Rights Commission (AIHRC), led by Sima Samar, is one of the important bodies that can accomplish significant tasks in this field. The Commission should make transitional justice the centre of all its human rights activities.
To create a democratic society, rule of law, combat impunity, developed human rights and prevent new conflicts, Afghanistan must only rely on the transitional justice process. Experience of other countries has demonstrated that this is a very difficult and hazardous path, but it is not impossible.
The people’s voice, in particular women’s voice is the best tool for transmitting the message of peace and friendship. Before war and during it, most violence and savagery is committed against women. This pushes the society to its lowest level and costs it all its intelligent forces. Therefore to return to a normal and peaceful situation, we must begin with women and take their hand. We must not leave them alone. We need their help to achieve enduring peace and eliminate any kind of violence. It is the women who should function as the principal agents of advancing peace and friendship. Finland supports all voices seeking justice, in particular the women. They must be trained to seek justice and rights and their sporadic activities should be consolidated.
Subsequently, Mr Jami, the moderator called on the speakers to discuss transitional justice and its various aspects, e.g. theory, implementation, history, and definition as well as the obstacles facing its implementation.
Peace cannot be achieved through behind-the-curtain talks and referring to opponents as brothers
The first speaker, Ms Sima Samar said: In my opinion, justice is not bound by time or place. Justice is a need. Without it, we cannot have enduring peace. It is essential to take a fair approach to events of the past and the present, in particular in this country where a large number of people have fallen victims to domestic and external conflicts during the past three decades and a half and perpetrators have not faced trials. In my opinion, this situation has caused the conflict to go on. Therefore, it is imperative to implement transitional justice to achieve enduring peace.
Peace is impossible without justice. Peace does not always mean cessation of war or conflict. It is a condition under which members of a society feel secure. It means members of the society must enjoy psychological and social security. Fulfilment of transitional justice does not only mean that we must imprison or execute war criminals. We must also take a fair approach to war victims and achieve their satisfaction. We must heal the wounds caused by the war, win the trust of victims and protect their human dignity so that they feel themselves as a part of the society, where their demands are respected.
AIHRC has carried out specific activities concerning transitional justice, including consultations with the people who had migrated to Pakistan and Iran and summing up their demands concretely. One of their demands was the naming of a specific day for victims. By exerting pressure on former President Hamed Karzai, AIHRC managed to register 10 December, Human Rights Day, as the Victims Day; which the civil society and the people should celebrate in Afghanistan.
A second demand was to build museums, parks and monuments as symbolic remembrances for the victims. AIHRC built a Museum next to mass graves in Bamiyan. It also tried to name a square for the victims in Badakhshan, but the governor has not given a specific answer to the Commission yet.
A third demand was documentation of the facts of war. The Commission has documented some of them. The document and its reports demonstrate the history of Afghanistan. They do not take aim at specific individuals, groups or periods. These reports cover the period of 1978-2001, when there were no human rights institutions to document the events. Fortunately, the AIHRC was established in 2001 and has been documenting the events of war and violence since.
The fourth demand is the purging of the government from individuals who have committed human rights violations. This is a sensitive issue and requires political commitment and will, which does not exist at present. The first demand is the establishment of a specialized prosecutor’s office and a special tribunal with Afghan and Moslem judges from other countries to try war crimes perpetrators and human rights violators. The Commission took some measures to this end, but those measures have not convinced the people. I must emphasize that peace cannot be achieved by behind-the-curtain talks and referring to opponents as brothers. To achieve peace, the demands and contributions of the people, in particular of women, should be taken into consideration.
How can the conditions be prepared to fulfill transitional justice in Afghanistan?
The second speaker was Mr Ashraf Bakhtiyari: When we discuss this topic, many questions come to mind including: What is transitional justice? What mechanisms exist in relation to transitional justice? What are the conditions under which transitional justice can be implemented? How can the conditions be prepared to fulfill transitional justice in Afghanistan?
The issue of transitional justice came up first after World War II, when the victorious countries established the Tokyo and Nuremberg Tribunals to try leaders of the defeated countries. Transitional justice comes up when a government leaves behind the period of war and despotism and enters a new era, i.e. transition from despotism and war to democracy. We suffice to one definition of transitional justice from among the various definitions. By this definition, transitional justice is on the cards when a repressive regime changes to a democratic one. In the course of this transition, crimes as defined by the Rome Statute, i.e. genocide, crimes against humanity, war crimes and aggression, are investigated to achieve peace and justice.
Mechanisms of transitional justice are truth commissions, tribunals and reparations. General amnesty is also among such mechanisms, but it is in conflict with transitional justice, because governments decide to pardon perpetrators, as was the case in Afghanistan where they were granted amnesty under the General Amnesty and National Reconciliation Law. This measure has raised an obstacle ahead of the transitional justice process in Afghanistan.
Purge of the government is another mechanism. Human rights violators should not be appointed to government positions, in particular high ranking positions. Legal, political, judicial reforms and traditional approaches to transitional justice constitute one more mechanism, which are different in different areas depending on culture and customs, e.g. local and informal tribunals. In Afghanistan, informal justice is practised by elders and it has its specific challenges.
People in Afghanistan envision only the judicial aspect of TJ
The cultural and social grounds should be created in order to implement transitional justice. In periods of transition, mass fervor does not allow proper implementation of transitional justice. However, defendants also have rights that must be taken into account. In Afghanistan, people envision only the judicial aspect of transitional justice and demand trial of the perpetrators. However, transitional justice is a multifaceted issue and has legal, political and social dimensions that should not be ignored. The society should be prepared psychologically and there must be political will to implement transitional justice.
To overcome this challenge, a discourse of transitional justice should spread among the intellectuals, the civil society and the government. We should undertake extensive publicity through the media to prepare the ground. Yet another significant aspect concerns truth seeking and documentation. It is not possible to prosecute anybody without evidence and documents.
General Amnesty and National Reconciliation Law is one of the major challenges to transitional justice
Mr Ehsan Qaneh offered a specialized discussion of transitional justice: We have always taken a generalized approach to transitional justice and this has hindered us from going forward. One of the major challenges to transitional justice is the General Amnesty and National Reconciliation Law.
In 2005, when the AIHRC planned to publish a report concerning the people’s demand to implement transitional justice, individuals who sensed that they may be accused and put on trial organised assemblies in the stadium. Details about methods of rallying the people go beyond the scope of my presentation. A number of the same individuals entered the Parliament and prepared the legislative ground to exonerate themselves.
Articles 2 and 4 of Amnesty Law are in conflict with the Penal Law
Article 170 of the Penal Law has mentioned general and specific amnesties and provided that general amnesty would require legislation. However, the president can decree specific amnesty on some persons on national occasions. Indeed article 170 lays the foundation for the Amnesty Law. The latter was approved by both houses of parliament in 2006 and submitted to the president for his signature. Under the existing pressures at the time, the president did not sign it.
The law came up again in 2008 and the procedure leading to its approval is questionable. Some MPs have remarked that the law came in force under article 94 of the Constitution, under which the president should sign the law within a specific deadline. Articles 2 and 4 of the Amnesty Law are in contravention of the Penal Law. Under article 2, war time culprits are granted amnesty but under article 4 individuals may file complaints against other individuals. Under the general provisions of the Penal Law, the prosecutor is obliged to file complaints in cases where private complainants do not exist.
Amnesty Law gives the opponents peace of mind to commit atrocities
The other challenge concerns the political approach to justice. The General Amnesty and Reconciliation Law grants amnesty to political opponents of the government whenever they lay down their arms and join the government. This gives them peace of mind to commit atrocities, kill children and women and commit crimes against humanity hoping that they will not be put on trial. Hence, atrocities have increased.
It is unprincipled to start transitional justice from the final stage
Abdullah Ahmadi concentrated his presentation on challenges and achievements of transitional justice: During the past three decades, there has been extensive violation of human rights in Afghanistan and it was not possible to investigate them. The ground was prepared in 2001 and certain actions have been taken bringing challenges and achievements. The approach to transitional justice is not a principled one. Rather than approaching it from bottom to top, the issue has been handled from the top, i.e. the final stage which is the trial of the perpetrators. Consequently, not much result has been achieved.
Achievements of transitional justice
Awareness-raising is one of those achievements. The majority of the people have come to know the notion and know that they can seek their rights. The second achievement is membership of the International Criminal Court (ICC), where the government and the people can ask for help regarding cases of gross violation of human rights. The creation of human rights groups and the AIHRC, with valuable accomplishments, is another achievement.
AIHRC’s Conflict Mapping Report is another significant achievement, even though it has not been published yet. Yet another achievement is the apology of General Dostom, because it encourages other perpetrators to take a positive transitional justice-related step by apologising to victims. The advocacy work of the civil society, the people, the Transitional Justice Coordination Group, and the publication of a list of 5,000 victims in the daily 8 Sobh are other issues that a large number of cases exist.
Four groups committed crimes when they were ruling, but claim to be victims at other times
Political developments have left a direct impact on the transitional justice process. For instance, four groups involved in the conflicts each claim to be victims and accuse the other groups. Each group has committed crimes during its rule, thus other groups that were not in power at the time claim to be victims. This is a major challenge to the transitional justice process. Another challenge comes from the improper understanding of transitional justice. The majority of the people think that the perpetrators should either be executed or imprisoned. The general belief equates transitional justice with penal justice.
One other problem facing the process is that the issue of putting the perpetrators on trial came up before truth finding and documenting and even publication of the Conflict Mapping Report. Absence of a mechanism to investigate human rights violations and incapability of the judicial system, presence of the violators in governmental posts, failure to publish the Conflict Mapping Report, and the General Amnesty and Reconciliation Law prevent the fulfilment of transitional justice. On the other hand, the ICC, which Afghanistan joined in 2003, would investigate only crimes that occurred after Afghanistan’s membership, while the majority of the crimes with which transitional justice is concerned date back to before 2003.
Question and answer session:
A student of the School of Law and Political Science asked: What do you think about violation of social justice in regard to women and girls who are in prison? Is there not a discriminatory approach to justice?
A graduate of Law, Philosophy and Psychology asked: Is the General Amnesty and Reconciliation Law not in contravention of the Convention, which Afghanistan has joined and which prohibits forgiveness for crimes against human rights? Paragraph 8 of article 21 of the Law on Jurisdiction and Tasks of AIHRC has stated one of its tasks to be collecting documents and evidence about war victims. What specific documents have you collected about the perpetrators; have you applied to domestic and international courts? Paragraph 15 of the same article has stated one of the tasks to be providing consultation about international conventions in case they are in conflict with domestic law. Have you engaged in talks with the government and what have been the results?
Ms Samar and Mr Qaneh answered these questions.
Implementation of justice in every country and under all circumstances is government’s duty
Ms Samar said: AIHRC has not worked from top to bottom but from bottom to top. The national consultation that I referred to before indicates this fact. The action plan for transitional justice which the government and the international community approved in London was the people’s demand.
The Conflict Mapping Report was prepared based on the same action plan. Implementation of justice in every country and under all circumstances is government’s duty. As I said, this report maps the history of this country. Unfortunately, Ministry of Education does not intend to include the contemporary history of Afghanistan in textbooks. However, truth will not go away if we refuse to see it. Furthermore, we have collected documents. They will be published someday and will serve as historical evidence.
There is no time limit for justice and we should not lose hope in its fulfilment. There will come a day when perpetrators will receive punishment. There are reports now that perpetrators of the 1970s are being brought to trial in some countries after many years.
Answering the other question, I should point out that the Commission investigates all the cases free from discrimination.
Mr Qaneh complemented: Common laws should not be legislated in contravention of the Constitution. However, the Amnesty Law contravenes the Constitution and the Penal Law. The president should have referred it to the Supreme Court to check its compatibility with the Constitution.
Regarding the incompatibility of international conventions and treaties with domestic laws, there are differences of opinion. The most important issue is the issue of national sovereignty. Therefore, the jurisdiction to investigate crimes against humanity has been assigned to governments in the first place. When states join international treaties and conventions, they must make their laws compatible with the provisions of those treaties.
A student of the 12th grade asked: Ms Samar said that the people had asked for a symbolic approach to transitional justice. Does that not breach justice?
Ms Samar replied: The goal of a symbolic approach is to prepare the ground for fulfillment of transitional justice, healing the suffering of people, and it has a psychological impact on the people. Furthermore, it’s not the task of the Commission to implement justice. We are opposed to impunity in Afghanistan.
