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International Justice Tribune (IJT 118), December 1, 2010

Impunity prevails in Afghanistan

The criminal law of Afghanistan in effect since 1976 -- the Penal Code -- has no penal sanctions for war crimes, crimes against humanity or genocide

By Michael E. Hartmann and Agnieszka Klonowiecka-Milart

All three conflict periods were marked by large-scale atrocities: crimes against humanity, war crimes, extrajudicial executions, and rape as a weapon of war, committed by combatants on all sides.

Sayyaf a notorious warlord

Notorious warlord Younis Qanooni
People in Kabul show their hatred for warlords by throwing blood on their posters during parliamentary elections of 2010. Notorious warlords like Abdul Rab Rasool Sayyaf (top) and Younis Qanooni (bottom) are not only safe from persecution of the crimes they committed from 1992-96 against thousands of innocent people, but are also free to participate in elections and enjoy power in the Afghan government.

Members of all of Afghanistan’s major ethnic and political groups were implicated, and mass graves have been discovered belonging to all three periods of conflict. This is a précis of the barriers to transitional justice in Afghanistan.

As a result of an epic report by the Afghanistan Independent Human Rights Commission (AIHRC) from 2004, and their continued research, there were high hopes five years ago for the "peace, reconciliation and justice action plan in Afghanistan."

The report contained some key actions, including criminal justice: “Establishment of effective and reasonable accountability mechanisms: In order to end impunity . . . and ensure that there will be no amnesty for war crimes (and) crimes against humanity . . . the conditions for fair and effective justice procedures are established in accordance with the principles of the sacred religion of Islam, international law and transitional justice.”

Specifically, it required by December 2005 a presidentially decreed task force “to provide recommendations ... for a legal, procedural and institutional framework necessary for Afghanistan’s implementation of its international legal obligations” and that “the perpetrators of war crimes, crimes against humanity and other serious human rights violations [...]not be ignored.” Afghan government and parliament ignored this plan, and President Hamid Karzai let it lapse in 2010 without renewal.

There are as of yet no laws, government investigations or prosecutions, or other institutional frameworks that implement Afghanistan’s international legal obligations, with the exception of work by NGOs such as the AIHRC. Instead, there is an Amnesty Law and a government that studiously ignores its obligations under the Rome Statute of the International Criminal Court, ratified in 2003.

No sanctions for war crimes

The criminal law of Afghanistan in effect since 1976 -- the Penal Code -- has no penal sanctions for war crimes, crimes against humanity or genocide. It does not implement even the basic Geneva Convention language protective of civilian populations. Thus, the only charges for International Humanitarian Law violations available under the Afghan Penal Code would be common crimes such as murder, torture, sexual assault through violence or threat, kidnapping, and abduction and kidnapping under the 2008 Law on Abduction and Human Trafficking.

Inadequacy of statutory tools was exacerbated by the absence of any specialised prosecution or police units focused on International Humanitarian Law investigation.

The one time that a war crimes case was taken to court was the flawed and unfair trial of Assadullah Sarwari, head of the communist Afghan secret police before the Soviet invasion. He was arrested by Afghan authorities in 1992 and kept in pre-trial detention until early 2004.

The indictment charged multiple murders. While there was a shared perception among the Afghan people, NGOs, law enforcement and prosecutors that Sarwari was guilty of mass atrocities, including extra-judicial killings and torture, the actual trial in 2004 was rife with blatant violations of the constitutional rights of the accused.

During less than two trial days, most testimony was hearsay. The defence did not explore obvious issues, and the prosecution did not properly prove required criminal elements. The indictment presented as “grounds for liability” that Sarwari had been “deliberately avoiding answering questions during the investigation,” and “for the purpose of hiding the truth asking for a defence lawyer . . . this is another reason of proof for his liability.”

The court found him guilty of murdering “hundreds of Muslims and mujaheddin in secret prisons” and sentenced him to death, which was later reduced to 18 years imprisonment.

Retroactive or not

The obvious solution for Afghanistan, which became the 89th state to ratify the Rome Statute, would be to implement its resulting obligations by amending the Penal Code. The same obligation results from Article 7 of the constitution, requiring Afghanistan to “observe the … international treaties (it) has joined.”

However, while the AIHRC has drafted amendments to the Penal Code, the issue seems to be considered of low priority: the Justice Ministry’s Legislative Department has yet to place it into its annual legislative plan.

When finally tabled, the most divisive issue will likely be whether the new IHL penal definitions and sanctions should be retrospective, as allowed by international standards, or only prospective.

Notably, the Afghan Constitution in Article 27 does not have a retroactive exception paragraph along the lines of the International Covenant on Civil and Political Rights (ICCPR), a multilateral treaty adopted by the United Nations General Assembly and ratified by Afghanistan. Thus, even if the Afghan parliament and government enact conforming amendments, the Supreme Court may be asked to decide whether Article 27 allows their retroactive effect.

Evidently, the current Afghan security concerns and political emphasis upon a peaceful resolution with the Taliban have quashed the government’s interest in criminal investigation and prosecution of IHL violations, past or present. Thus, ’No Peace without Justice’ has become ’Peace then perhaps Justice.’ This is exemplified in the Amnesty Law.

Amnesty Law

On February 20th, 2007, less than two months after Karzai had announced his approval of the transitional justice action plan, the year-old Afghan Parliament institutionalised impunity by enacting the Amnesty Law. It immunises many legislators who had been implicated in war crimes and other serious human rights abuses, and had been named in AIHRC and Human Rights Watch reports as potential subjects of prosecution.

The law provides general amnesty, without limitation, to “all political factions and hostile parties’” who were involved in hostilities before the post-2001 interim administration, ensuring that they “shall not be legally and judicially prosecuted.” It further ensures amnesty for any current and post-2001 opposition “individuals and groups” who “cease enmity after the enforcement of this resolution” if they “join the process of national reconciliation, and respect the constitution and other laws.”

There was no limitation as to the nature of the crime, nor how far back the amnesty applied. This amnesty goes frontally against the principles already incorporated in international law. These principles underline that even if amnesty laws were intended to establish conditions conducive to a peace agreement or to foster national reconciliation, they may not benefit perpetrators of serious crimes under international law until states have undertaken prompt and independent investigations and prosecutions.

The only exception, included following national and international pressure condemning the scope of the amnesty law draft, was that the victims of these crimes could themselves go forward on an individual basis. However, no procedure of investigation is provided, and the criminal procedure of Afghanistan does not allow private prosecutions of felony crimes.

Moreover, given the acute inequity between the victims and immunised warlords in their position before any state institution, this authorisation remains a mere declaration, without any prospect of implementation.

Michael E. Hartmann worked in Afghanistan for the United Nations Office on Drugs and Crime (UNODC) and the US State Department’s Bureau of International Narcotics and Law Enforcement’s Justice Sector Support Program from 2005 to 2010. Judge Agnieszka Klonowiecka-Milart worked for the UNODC in Afghanistan from 2008 to 2010. These issues are discussed in much greater detail by the authors in two chapters of the forthcoming book The Rule of Law – Missing in Inaction, Whit Mason, ed. (Dec. 2010; Cambridge University Press).

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