The only two survivors of a family killed in the crossfire of fundamentalist in-fighting in Kabul. (August 24, 1992)
(New York) - The Afghan government should urgently act to repeal a law that provides an amnesty to perpetrators of war crimes and crimes against humanity, Human Rights Watch said today.
The law was published unannounced in the official gazette, bringing it into force, despite repeated promises by President Hamid Karzai that he would not allow the law to go into effect.
"Afghans have been losing hope in their government because so many alleged war criminals and human rights abusers remain in positions of power," said Brad Adams, Asia director at Human Rights Watch. "The amnesty law was passed to protect these people from prosecution, sending a message to Afghans that not only are these rights abusers here to stay, but more might soon be welcomed in."
The National Stability and Reconciliation Law was passed by parliament in 2007 by a coalition of powerful warlords and their supporters to prevent the prosecution of individuals responsible for large-scale human rights abuses in the preceding decades. The amnesty law states that all those who were engaged in armed conflict before the formation of the Interim Administration in Afghanistan in December 2001 shall "enjoy all their legal rights and shall not be prosecuted."
Human Rights Watch endorsed the March 10 statement of the Transitional Justice Co-ordination Group, representing 24 Afghan civil society organizations, which called for the law to be repealed. The group stated that, "Accountability, not amnesia, for past and present crimes is a prerequisite for genuine reconciliation and peace in Afghanistan. All Afghans will suffer as a result of implementation of this law, which undermines justice and the rule of law."
Three decades of war have brought serious human rights abuses against all the major ethnic and political groups in Afghanistan, including large-scale atrocities during armed conflict, extrajudicial executions, enforced disappearances, and sexual crimes as a weapon of war. Human Rights Watch documented one particularly grisly period in 1992-93 in "Blood Stained Hands: Past Atrocities in Kabul and Afghanistan's Legacy of Impunity."
The amnesty law was passed at a time when Afghan public opinion was beginning to mobilize against warlords and impunity. An opinion survey published by the Afghan Independent Human Rights Commission (AIHRC) in 2005 indicated that large majorities favored prosecutions. The Afghan government, the United Nations, the Commission, donor governments and others were involved in discussions about addressing past abuses through the government's "Transitional Justice Action Plan." In 2006 the government launched the Action Plan for Peace, Reconciliation and Justice in Afghanistan, which makes clear commitments to: 1) acknowledge the suffering of the Afghan people; 2) ensure credible and accountable state institutions and purge human rights violators and criminals from the state institutions; 3) undertake truth-seeking and documentation; and 4) promote reconciliation and improvement of national unity.
After the amnesty law was passed by parliament in 2007, President Karzai said he would not sign it. The chairperson of the AIHRC, Dr. Sima Samar, told Human Rights Watch that she had been offered assurances that he would not enact the law: "The president himself promised me twice that he would not sign the law." Despite this commitment, and similar promises to a range of civil society groups, the law was published in the official gazette. It is not clear when this happened, as the date on the gazetted law is December 2008, while some sources say it was not published until January 2010, when printed copies of the law were received by organizations that monitor the gazette.
"President Karzai has some explaining to do," Adams said. "Why is he protecting people who have brought so much death and misery to Afghans? Why are his relationships with warlords more important than his duty to protect the rights of Afghans?"
Human Rights Watch expressed concern that the law may be used to provide immunity from prosecution for members of the Taliban and other insurgent groups who have committed war crimes. The government and its international backers have made a reconciliation process a main plank of their counter-insurgency strategy. "It [the amnesty law] was collecting dust for nearly three years," Fawzia Kufi, a member of parliament, told Human Rights Watch. "But now that the president wants to talk to the Taliban - for his own interests, and for his friends' interests - he makes it law."
The law says that those engaged in current hostilities will be granted immunity if they agree to reconciliation with the government, effectively providing amnesty for future crimes.
"The amnesty law is an invitation for future human rights abuses," said Adams. "It allows insurgent commanders to get away with mass murder. All they need to do is offer to join the government and renounce violence and all past crimes will be forgiven - including crimes against humanity."
Defenders of the amnesty law say that it still allows individuals to bring criminal claims against perpetrators. However, international law requires states to investigate and prosecute crimes against humanity, war crimes and other serious human rights violations, such as extrajudicial killings, torture and enforced disappearances. Such obligations cannot be transferred to individuals.
In practice, individuals have severely limited access to the justice system in Afghanistan, as the state court system is barely functioning in much of the country, corruption is rampant, and there is no witness protection system.
When questioned about the conflict between the amnesty law and the Action Plan, the presidential spokesman, Wahid Omar, said on February 10 that "transitional justice is not implemented by government" and that civil society was responsible for implementing transitional justice. His comments echo the private comments of some US officials, who suggest that the amnesty law is not problematic because individuals retain the right to bring cases.
"It is fantasy to think that an individual can take on a major war criminal alone," said Adams. "Victims who challenge powerful people will put themselves and their families at serious risk. It is dangerous to even suggest this is a viable path to justice."
When the amnesty law was passed by the parliament in 2007, the United Nations and many governments spoke out against it. Yet since it was discovered that the law had been gazetted there has been little comment or condemnation from the international community.
"The existence of this law is as much a test of the principles of Afghanistan's international backers, such as the United States, as it is of Karzai," said Adams. "Will they stand with abusive warlords and insurgents, or will they stand with the Afghan people?"