13 juillet 2010

III. Reintegration, Reconciliation, and Rights

 

I once again call on the Taliban and other opponents who are fighting against their homeland to stop fighting and stop the destruction, and return to their homeland.[78]
–President Hamid Karzai, address to Parliament, February 20, 2010
I don’t think talks are possible because of our past experience. During the Taliban regime, women couldn’t go out, they couldn’t go work, and they had no schools. The Taliban would rather see a woman die in the streets than go to a restaurant to get food if men were there-these are the kinds of people we are talking about.[79]
–Female parliamentarian (anonymous)

Background: From Targets to Talks

According to the Afghan government, reintegration generally refers to programs to encourage low- to mid-level fighters to stop fighting. Reconciliation refers to negotiations with high-level insurgent commanders, from both the Taliban and Hezb-i-Islami (Gulbuddin).[80]

Afghan leaders have called publicly for reconciliation with Taliban and Hezb-i-Islami (Gulbuddin) leaders since 2001, with both the Afghan government and representatives of inter-governmental organizations holding meetings with insurgent leaders for several years.[81] However, until recently, one of the most influential foreign players, the United States, was reluctant to endorse such meetings or overtures. By late 2008, the United States had shifted to a policy of welcoming Afghan efforts at reconciliation.[82] In December 2009, at a speech to the West Point military academy, President Obama stated: “We will support efforts by the Afghan government to open the door to those Taliban who abandon violence and respect the human rights of their fellow citizens.”[83]There has been no suggestion to date however, that the United States might open its own direct negotiations with the Taliban.[84]US Secretary of State Hillary Clinton has expressed some reservations:

[W]e have urged caution and real standards that are expected to be met by anyone who is engaged in these conversations, so that whatever process there is can actually further the stability and peace of Afghanistan, not undermine it.[85]

 

The United States has supported reintegration, although not necessarily as part of a political reconciliation strategy. The CIA director, Leon E. Panetta, has said that he has seen “no evidence” that the main insurgent groups are interested in reconciliation, and that this will remain the case unless the groups believe that the United States “is going to win.”[86] The former commander of US and NATO Forces in Afghanistan, Gen. Stanley McChrystal, expressed the view that he considers reintegration a “normal component of counterinsurgency warfare,” through which “insurgents will have three choices: fight, flee, or reintegrate.”[87] However, some analysts interviewed question whether meaningful reintegration can take place without the agreement of the high levels of the insurgent factions. The attitude of the Pakistani government towards reconciliation is crucial. It seems clear that Pakistan would want a central role in any deals, though signals so far are mixed.[88] 

The Taliban has mostly sent negative signals about reconciliation.[89] On March 24, 2010, the Afghan government confirmed that it had received a delegation from Gulbuddin Hekmatyar’s Hezb-i-Islami (Gulbuddin), but Hekmatyar himself, who is on the UN’s sanction list and the US list of Specially Designated Terrorist Entities, did not take part in the talks.[90]In June 2010 it was reported that Sirajuddin Haqqani, leader of the Haqqani network, had met with President Karzai in Kabul.[91] Karzai denied that the meeting took place.[92]

At present significant progress with reconciliation seems remote, while reintegration programs could happen quite quickly. The Consultative Peace Jirga led to some immediate action by the government, most notably the formation of a commission to review all security detainees. Those who are being held in “legal limbo” without sufficient evidence will be released.[93] At the time of writing no women are included in the committee determining prisoner release.

The Rise of the “Ten-Dollar Talib”

The experience of many women living under de facto Taliban control belies the claim that is frequently made by US and NATO officials and diplomats in Afghanistan that the insurgency is largely “non-ideological.” References are made to the “ten-dollar Taliban,” and the “moderate Taliban,” and suggest that reintegration efforts in particular will only seek to involve the “foot soldiers,” or Taliban beneath command level.[94] Lt. Gen. Graeme Lamb, ISAF Force Reintegration Cell, said: “Who are these Taliban? They are local people, the vast majority are guns for hire, not fighting for some ideological reason.”[95] US and NATO forces and key western donors have increasingly promoted the idea of the “ten-dollar Talib,” perhaps in part to make reintegration more palatable to their domestic audiences, who had until recent times been told that the Taliban were an enemy to be defeated.[96]

There are many reasons why insurgents fight. But whether foot soldiers fight for financial, political or religious reasons should not be confused with how they might behave once they assume control of an area. No women activists are claiming that the Taliban fight in order to repress women, but it is still a feature of their rule in areas under their de facto control, as the experiences of women in this report illustrate. Taliban commanders commonly attempt to impose an extreme interpretation of Islam, including restrictions upon women that are reminiscent of Taliban times. Should these same commanders be granted political power in a reintegration or reconciliation process, without restrictions and without the involvement of women, the result is likely to be the denial of the rights of women and girls.

The Swat Valley Deal

The recent experience in Pakistan of a deal with the Pakistani Taliban was dismal. On April 13, 2009, President Asif Ali Zardari signed an ordinance imposing Sharia in the Swat Valley and adjoining areas as part of a deal with the Pakistani Taliban. This effectively empowered the Taliban to impose its authority in the areas, which it did through summary executions, including beheadings, of state officials and political opponents, public whippings, and large-scale intimidation of the population. There were particular abuses of the rights of women and girls. In April 2009 a mobile telephone video emerged of the public flogging of a woman by the Taliban in Swat. The two-minute video showed a veiled, screaming woman face down on the ground as two men held her arms and feet and a third man whipped her repeatedly. Girls’ schools were shut down; women were not allowed to leave their homes unless escorted by male family members.

 

Responding to domestic and international outrage, on May 7 the government reversed course and declared an end to the deal, vowing to “eliminate” the Taliban. The ensuing military operation triggered a massive displacement crisis as some two million civilians fled the fighting to adjoining districts. [97]

Ensuring Women’s Participation

The women leaders and activists who spoke to Human Rights Watch all expressed support for the Afghan government’s renewed call for a peaceful resolution to the conflict. However, they have a range of concerns that apply to both reintegration and reconciliation plans:  lack of women’s representation, particularly on higher level decision-making bodies, a lack of transparency, the absence of explicit guarantees of their constitutional freedoms, the risk of deal-making rather than reconciliation, the failure to take sufficient action on governance and security sector reforms, a lack of trust that the government is committed to protecting women’s rights, and the failure to make progress on justice and impunity before pushing for reintegration and reconciliation.

Women activists have engaged in determined advocacy to secure fair representation in proposed reintegration and reconciliation plans and programs, but there have been setbacks as well as gains. For example, the January 2010 London Conference all but excluded women participants. As the Afghan Women’s Network observed: “Afghan women were provided no official designation to feed into decisions nor negotiate conclusions. In an event that spanned an entire day and included more than 70 countries, only a single Afghan woman was included to speak as part of the official agenda, co-presenting the concerns of Afghan civil society.”[98]

Women activists were successful in increasing their representation at the June 2010 Consultative Peace Jirga, where the final number of women was over 330 out of an estimated 1600 participants, just over 20 percent.[99] Several prominent women activists argued that they had been deliberately excluded from the jirga because they were too outspoken about women’s rights prior to the assembly.[100] Najla Ayubi said: “I was the only one out of 200 people helping to organize the jirga. I criticized them for this on TV, and I also said on TV that women’s rights should not be compromised for peace. That’s why they removed my name from the list of delegates.”[101] Others complained that the process of selection was opaque, and the final list of delegates was not made public. The jirga broke into 28 committees, with approximately 20 percent women’s representation on each. Only one woman acted as a committee chair, and very few women were given the chance to speak.[102]

While some women complained that there was limited space for them to address the plenary of the jirga, several women participants said that they were pleased with their ability to voice their opinions in the committee stages. “This was a very valuable experience and contribution of women in the history of Afghanistan,” said activist and participant Mary Akrami.[103] Mahbouba Seraj, a women’s rights defender and parliamentary candidate told Human Rights Watch said that women activists should be proud: “You compare this to the Emergency Loya Jirga in 2002 where the atmosphere was horrible for women.[104] There were very few women and they were treated like lepers by the men. The peace jirga was really different–the presence of women was not a big issue. Obviously there’s still lots of work to do, but this was an achievement.”[105]

The overall impact of the jirga, however, should not be overstated. In terms of concrete guarantees that women’s rights will be protected, the final declaration notes only that: “The Afghan people demand a just peace which can guarantee the rights of its all citizens including women and children. For the purpose of social justice, the Jirga urges that laws be applied equally on all citizens of the country.”[106]Despite having reasonable representation, some women felt that it had not translated into concrete commitments on key issues.[107]

Many analysts and politicians discount the jirga’s impact, arguing that it was too tightly managed by the President to be a genuine forum for discussion, it had no representatives of insurgent factions, and was boycotted by several prominent opposition figures. The limited power of the jirga was clearly stated by the government. As Mohommed Masoom Stanekzai, who is in charge of reintegration efforts for the Afghan government, told Human Rights Watch, “It won’t be a decision-making body, it’s only consultative.”[108]

Precisely because key decisions will not be made in consultative forums like the Consultative Peace Jirga, women should have fair representation on the bodies that will be making decisions, implementing programs, and conducting negotiations. These include the High Level Peace Council (which will lead negotiations) and the Joint Secretariat for Peace, Reconciliation and Reintegration Programs, as well as the implementing ministries and directorates.[109] At the time of writing women interviewed for this report did not feel like those guarantees had yet been given. Hasina Safi, the executive director of the Afghan Women’s Educational Centers, said that the government’s poor track record on inclusion means oversight is needed to ensure meaningful representation, rather than tokenism:

There should be monitoring to see if women have actually been included for decision-making purposes. Sometimes they circulate data saying 10 percent women in the ministries are women. But when you see the data, women will only be hired as cleaners, or helpers… We want women in decision-making positions.[110]

Ensuring that women leaders are included and can meaningfully participate at all levels in reintegration and reconciliation is one of the best safeguards against the rights of women and girls being sold short in the name of peace.

Weakness of Constitutional Guarantees for Women’s Rights in Reconciliation and Reintegration

Afghan government officials are increasingly being called on to explain how women’s rights will be protected during any reconciliation or negotiation process. Frequently they offer assurances that those who reconcile would have to accept the principles enshrined in the constitution.[111] For example, in April 2010, Stanekzai, in charge of reintegration programs for the government, circulated a short summary of the government’s reintegration plans, which made the following commitment:

The rights of individuals including protection for the rights of women and minorities, as enshrined and articulated by the Afghan Constitution, will not be infringed upon by the reintegration program.[112]

Primarily this refers to article 22 of the constitution, which states that any kind of discrimination is forbidden, and that men and women are equal before the law.  Also relevant is article 43, which guarantees the right of education for all Afghans, and article 44, which specifies the duty of the state to provide a balanced education to women. Article 83 concerns women’s participation in Parliament.[113] For some women, particularly those like Orzala Ashraf Nemat, who fought hard to see women’s rights embedded into the constitution, these are important guarantees. She told Human Rights Watch:

When I talk about the constitution, freedom of expression and women’s rights are part of our constitution. We have articles that discuss freedom of speech, and we have article 22 that asks for equal rights for women and men, so they are all included. So women’s rights are not going to be one of those negotiable principles.[114]

Others fear the constitutional protections for women’s rights will be insufficient, since the constitution has not guaranteed their rights in the past. Wazhma Frogh, a leading activist, stated:

It’s a good statement–but President Karzai himself has done many things against the Afghan constitution. There have been hundreds of things–including illegal things–that were against the constitution. What was the result? Nothing happened. So I think he’s used to manipulating it and giving excuses. He knows himself how many times he’s crossed the constitution.[115]

Activists also point out the contradictions in the constitutional protections of women’s rights–while article 22 guarantees the equality of men and women, article 3 of the constitution states that no law shall contradict Sharia.[116] Some women have expressed concern is that article 3 can render all provisions protecting women subject to hardline interpretations of Sharia. Said one activist:

The Taliban are the movement of Sharia. So they will say yes we accept it… and this is our version of Sharia. In fact they won’t even say this is our version-they will just say this is Sharia, the only version.[117]

Some insurgent groups consider the constitution, which they see as superfluous to Sharia, as a barrier to reconciliation.[118] As a result, some Afghan and international officials say they would be reluctant to make adherence to the constitution a requirement for reconciliation and reintegration.[119] One diplomatic source suggested that insisting on respect for the constitution should not be called for because it would be a “deal-breaker” for the Taliban.[120] Another diplomatic source told Human Rights Watch this tension was evident in the wording of the article on reconciliation in the London communiqué.[121] The final statement stopped short of requiring reconciling insurgents to sign up to the constitution itself, instead demanding that they “respectthe principles that are enshrined in the Afghan constitution” [emphasis added].[122]

In a more conservative post-reconciliation political environment, the constitution could be amended to the detriment of women’s rights in a loya jirga, or grand assembly of regional and tribal chiefs. Shagol Rezaee MP said: 

The Afghan government is not clear enough on conditionality–the constitution is not enough. Karzai does not talk specifically about women’s rights or human rights. So it’s not enough. They can hold a jirga and amend the constitution. There is no guarantee that the constitution would be protected if a loya jirga is imposed.[123]

Indeed, comments from the Minister of Economy, Abdul Hadi Arghandiwal, the newly appointed Hezb-i-Islami political faction leader, seem to confirm Rezaee’s concerns. On April 4, 2010, he reportedly told a gathering of women leaders discussing reconciliation that women would have to sacrifice their interests for the sake of peace.[124] When a delegation of Hezb-i-Islami (Gulbuddin) representatives met with the government to discuss reconciliation, rewriting the constitution was specified as a task for a new parliament.[125]

Additional Guarantees Needed to Protect Women’s Rights

Rather than rely on a general appeal to constitutional protections, many women argue that the government needs to articulate more explicit guarantees. Samira Hamidi, executive director of the Afghan Women’s Network, told Human Rights Watch:   

More specific reassurances [are needed], like access to education for Afghan women, access to work, freedom of movement. Now women are free. They can go anywhere they want. They can go to doctor, they can go for shopping... Freedom to travel-I can travel always alone now, I obtain a visa and I go for official trips… I’m sure with inclusion of Taliban and with no specific commitment for Afghan women it will be very difficult… Women should be able to carry on their activities–civil society or parliament or political affairs.[126]

At the time of writing the government had taken the first step towards creating a constitutional oversight body, with five out of six Presidential appointments accepted by Parliament on June 1, 2010.[127] This body could play an important role in ensuring that the governments’ reintegration and reconciliation programs do not contradict constitutional guarantees of women’s rights.

In their representations to the Afghan government, women leaders have suggested that the reintegration and reconciliation process should incorporate orientation and training on civil liberties and women’s rights so that former insurgents understand women’s constitutional guarantees.[128] They have also made clear that full implementation of the National Action Plan for Women of Afghanistan and the Elimination of Violence Against Women law would offer additional protections that might guard against potentially negative impacts of reconciliation and reintegration.[129]

No Peace Without Justice

A flawed negotiation process that legitimizes ex-combatants without providing lasting peace and security is an outcome that many female interviewees feared. Many argued that for the government to bring about a credible and effective reconciliation process, it would first need to improve its standing with the people on issues of governance, justice and corruption, since impunity and injustice was such an important driver of the insurgency. Although there have been statements from the government acknowledging the need for more progress in governance and accountability, this has not yet translated into meaningful reforms.[130]

Many women activists said reforms to improve governance and accountability would be key to any peace. According to activist Wazhma Frogh:

[I]t is the politics of governance, the problem of bad governance that has pushed many people into the Taliban and militancy–the government knows that–they too have said it. They know that this is part of the reason the people are joining the insurgency. So when we know this–we have to deal with governance first.[131]

Shinkai Karokhail MP said:

There are so many things that need to be fixed before we go for this reintegration and reconciliation…  If the government is too weak, if the people don’t support the government, if the people don’t trust the government, then bringing these people back to the system will cause more problems. These people will just exploit a weak government, and they will be taking powers or resources or changing the laws, so there will be more problems rather than bringing peace and stability.[132]

Parliamentarian Fawzia Kufi asserted that government reform should take place before embarking on reintegration and reconciliation:

The alternative [to reintegration and reconciliation now] is that the government finally starts to deliver good governance. Some are fighting with the Taliban because of warlords and bad governors. So some men or groups join the Taliban because they’ve got no alternative. I don’t believe that the Taliban are getting stronger; I believe that the government is getting weaker.[133]

Freshta. S, from a southeastern province, told us that for durable peace, the government needs to address the needs of the population:

The Afghan government and the international community should work to together in an honest way to improve the lives of Afghan people. They should work to establish a permanent peace in Afghanistan, facilitate education for children and create jobs for those people who would like to contribute rebuilding Afghanistan.  

Naureen N. recounted her experience in 2004-2005, saying that she personally raised people’s problems to the local government and central government, president’s office, sectoral ministries, the international forces, the UN mission in Afghanisan “and nobody responded.” She said that neglect of people’s needs coupled with high civilian casualties, had increased support for the insurgency:

The provincial reconstruction teams [international civil-military teams] also did not respond to people… They also started to kill civilians, searched their homes, and pulled out men even when they were with their wives. That is why people have gotten distanced from the government. That is why it is a golden opportunity for the insurgents to mobilize people to make use of this situation–they grow in number–if there was one [insurgent], they became two, then become ten, then a hundred.[134]

The government’s strategy paper contains some recognition of the need for grievance resolution to be part of the reintegration process. It envisages local shuras, led by governors and district governors, addressing people’s concerns.[135] There is some precedent for government-led community outreach with a stabilization agenda, in particular the Afghan Social Outreach Program (ASOP) which created or reinvigorated district-level shuras to participate in a range of security and development initiatives.[136] Some analysts and officials say that the initiative was undermined as a result of politicization by the Afghan government.[137] The current status of the ASOP initiative is unclear.[138] It remains to be seen whether the Afghan government has the will or the capability to offer more neutral implementation at the district and village level. Such initiatives must avoid perceptions of unfairness and corruption, since patronage and alienation are widely regarded to be among the drivers of the insurgency. 

The enduring climate of impunity in Afghanistan underpins many of the abuses that women suffer, including high levels of violence against women, and the severe limitations on their access to justice, political office and influence. If reintegration and reconciliation allows individuals known for serious human rights abuses and abuses against women to enter the government without any process of accountability, the situation for women and girls can be expected to deteriorate.

Risks of Rewarding Abusive Insurgents with Political Office

Positions in the local administration are likely to be used as an incentive to reintegrate insurgents, despite the threat it may pose for the protection of human rights. The lack of adequate vetting procedures to guard against known human rights abusers being integrated into the government increases the likelihood that perpetrators of serious abuses will avoid being held to account. Existing vetting for both political appointments and elected office are weak, and has not excluded those against whom there are credible allegations of human rights abuses and corruption. When it comes to deals with former insurgents, what little protections currently exist may become expendable for political expediency.

Offering positions of power has been used as an incentive before, notably in Musa Qala district of Helmand province, when in January 2008 a former Taliban commander, Mullah Abdul Salam, was “reintegrated” and made district governor.[139] One source told Human Rights Watch that the government offered him the district governorship, as well as the right to choose the district police chief, as part of the package to persuade him to switch sides, despite Salam having a reputation for being a “typical tribal warlord.”[140] 

Stanekzai told Human Rights Watch:

They will demand it [jobs in the administration]. But we will have to look at not just giving jobs to anyone–we will look at their qualifications. Like anyone else in government, they will go through a process. They should also go through the same process if they want an elected position.[141]

However, existing vetting mechanisms remain extremely weak, despite the increased pressure on the government to institute reform. The government has created numerous bodies intended to improve this, including the Special Advisory Board on Senior Appointments, Anti-Corruption Tribunal, Major Crimes Task Force, and High Office of Oversight. While these bodies have the potential to increase Afghans’ confidence in government, as yet they have not tackled the height and depths of abuse of power. Corrupt or predatory officials tend to be at best “moved on” rather than removed and held accountable.[142] Recent appointments of governors, police chiefs and district police chiefs against whom there are credible allegations of human rights abuses illustrate the weakness of current vetting procedures.[143] The additional political pressure for results, particularly with regard to reintegration, will make it more likely that these weak procedures are avoided. 

Reconciliation and the Amnesty Law

It [the amnesty law] was collecting dust for nearly three years. But now that the president wants to talk to the Taliban-for his own interests, and for his friends’ interests-he makes it law.
-Fawzia Kufi MP[144]

The concerns about impunity and reconciliation need to be considered in view of the promulgation of Afghanistan’s National Reconciliation, General Amnesty, and National Stability Law (hereafter referred to as the “amnesty law”), which came to light in January 2010.[145] The handling of the law raises serious questions about the Karzai government’s commitment to safeguarding rights, and women’s rights in particular, during the reconciliation and reintegration process.

Parliament passed the National Stability and Reconciliation Law in 2007, backed by a coalition of powerful warlords. The President, under pressure from various sides including Afghan human rights defenders and the United Nations, promised that he would not sign the law.[146] Most human rights defenders assumed that this meant the law had been thwarted.[147] However, they discovered in December 2009 that the law had been published unannounced in the official gazette, bringing it into effect.[148]

The Amnesty Law states that all those who were engaged in armed conflict before the formation of Afghanistan’s Interim Administration in December 2001 shall “enjoy all their legal rights and shall not be prosecuted.”[149] It also 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 law thus provides immunity from prosecution for members of the Taliban and other insurgent groups, as well as pro-government warlords, who have committed war crimes. 

Defenders of the Amnesty Law note that it allows individuals to bring criminal claims against perpetrators: a provision states that the law “shall not repudiate the victim’s right, and criminal claims of persons against persons in respect of individual offenses.”[150] While international law encourages states at the end of hostilities to provide the broadest possible amnesties to those who participated in an internal armed conflict, such amnesties are not to apply to persons implicated in war crimes.[151] However, international law places a duty on states to investigate and prosecute crimes against humanity, war crimes and other serious human rights violations, such as extrajudicial killings, rape and other sexual violence, torture, enforced disappearances, and attacks on civilian objects such as schools.[152] 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. For women victims of sexual violence there are extreme cultural barriers to taking individual claims against (often very senior) commanders responsible for sexual violence during conflict.

Human Rights Watch has called for the Amnesty Law to be repealed, and for those who have committed crimes against humanity, war crimes and other serious human rights violations to be excluded from amnesties.[153] The Transitional Justice Coordination Group, a group of 24 Afghan civil society organizations working for transitional justice, also called on the government to repeal the law and restart the Action Plan for Peace, Reconciliation and Justice.[154]  The group stated:

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.[155]

The UN’s then-senior human rights official in Afghanistan, Nora Niland, said that the High Commissioner for Human Rights had asked for the law to be repealed.[156] And the Canadian Foreign Minister, Lawrence Cannon, publically raised concerns about the Amnesty Law and called on the government to pursue the goals laid out in the Action Plan for Peace, Reconciliation and Justice.[157]

However, the major international players in Afghanistan, including the US, the European Union, and the UK, have not publically criticized the Amnesty Law. Several diplomats told Human Rights Watch that the US and other governments had put pressure on them not to speak out against the law, arguing that it was necessary for reconciliation.[158]

The UN Special Representative to the Secretary General, Staffan de Mistura, said in June 2010 that reconciliation should take place before transitional justice, and that in the absence of criminal convictions no one can be excluded.

Peace needs to be made by everyone with everyone. Those who accept to be inside the tent and that accept the Constitution. One day, I am sure there will be a moment when Afghans having reached peace will be able to go through this type of transitional justice process that many countries have gone through. But the priority today is to go towards peace, otherwise we will see ongoing war which a non-option.[159]

Many of the women interviewed by Human Rights Watch said that the Amnesty Law–and the weakness of the international response–sent the wrong signal about the prospects of a just reconciliation. “It looks like they are preparing the ground for more criminals to come, by giving them an amnesty,” said Shagol Rezaee MP.[160]

Reconciliation and War Criminals

Senior leaders within the Taliban and Hezb-i-Islami (Gulbuddin) have been implicated directly or as a matter of command responsibility for war crimes and serious human rights abuses, including mass killings, summary executions, torture and other ill-treatment, indiscriminate attacks on civilians, discrimination against women and minority groups, abductions and arbitrary detention, and unlawful attacks on schools, as documented in several major studies.[161]Although some commanders named in existing documentation of war crimes are now dead, such as Mullah Dadullah, others are alive and still part of the insurgency.[162]  

Human Rights Watch interviews with Afghan and foreign government officials indicate a great reluctance to exclude from the reconciliation process those insurgent leaders who have committed war crimes. One Afghan government official told Human Rights Watch that any transitional justice requirements would come after a peace and reconciliation process:

It needs to be a process for all–it was not only one group that did these things–Communist, Mujahidin.  In each phase of this country’s history there were atrocities… when we have the real authority to implement the law, that is the time that these things can be dealt with. Until then we don’t have the strong government required to manage this.[163]

International diplomats offered little indication that the exclusion of war criminals was a priority, or even a possibility. One senior US official said that excluding war criminals would be unlikely “since there are plenty who are just as bad in government.”[164]A UK official said that drawing red lines prior to talks would be a “deal breaker.”[165]Some US officials suggested that discussions about red lines were premature since reconciliation is “not happening yet.”[166] Other US officials have stated that no policy decision had been made at the time of writing.[167]

Contrary to the views of those officials, many of the women interviewed by Human Rights Watch felt that some kind of transitional justice process should be a necessary component of reconciliation. “Otherwise, how will people gain confidence in the government?” said Suraya Perlika, director of the All Afghan Women’s Union. “You can remove the names from the [black] list but you cannot remove them from people’s minds.”[168]

Others felt that even if criminal justice was not possible, some form of accountability or truth-seeking process was necessary for a lasting peace. According to one activist:

Mullah Omar was the head of the state when massacres happened. We need to know what made those massacres happen. Hekmatyar the same way, and many others who are part of the actual system today, were involved directly in destroying Kabul. The destruction of Kabul from 1992-96 is comparable with Second World War destruction. Who did it-some creatures from Mars? Of course not, it was these groups and we need acknowledgement. We need these people to come and say Yes, we have destroyed the palace, we have destroyed these cities, yes we have killed people. These people were not killed by Russians or Americans or anyone else, they were killed by us because we were so thirsty for power.’ That acknowledgement should come back to the people of Afghanistan and only then can there be the possibility of reconciliation in our minds.[169]

Some women expressed concern that while exclusion might be an obstacle to peace, a truth commission would not. Said Frogh:

I worry about talk of excluding people from peace. Today we are suffering from the results of the exclusion of the Bonn process.[170] We wouldn’t have the Taliban insurgency if it wasn’t for those exclusions… We need to rethink transitional justice, to help peace, to allow people to speak. That will give more hope. The crimes committed by the Taliban and by international troops–and in other decades-we might not prosecute them but we have to have a place where people can bring their grievances.[171]

Parliamentarian Shinkai Karokhail said that reconciliation should take place after reforms to strengthen vetting for political appointments and elections: 

If we bring them [the insurgents] in it should be under different conditions. The presence of these warlords today is already a headache, especially for women. They should be excluded from power. If the government is not in a position to bring them to justice, they should at least exclude them from government. The election law needs a strong condition that militants or people with strong affiliation with militants and militia are not allowed in.[172]

Some analysts and politicians agree that the Bonn process that began in 2001 marginalized some southern Pashtun tribes associated with the Taliban, which later contributed to the Taliban insurgency (though others argue that the tribal dimension to the insurgency is overstated).[173] The exclusion of those implicated in war crimes and crimes against humanity, however, does not have to mean political marginalization of entire tribes or groups. Addressing perceptions of exclusion and unfairness in local government should be part of a holistic approach to reconciliation-one that addresses legitimate grievances about marginalization but also makes progress reforming justice and accountability mechanisms. If the government wants to avoid the charge of unfairly singling out Taliban and Hezb-i-Islami (Gulbuddin) for vetting, it should take action on long overdue vetting and accountability reforms for the past war crimes and other abuses by those in government. This might also avert the potential for a backlash against potential deals with the Taliban. Several significant figures from the main non-Pashtun ethnic groups–Tajik, Hazara and Uzbek, have already expressed their hostility towards deals with the Taliban.[174]

Human Rights Watch urges the government to repeal the Amnesty Law, recommit itself to the Action Plan on Peace Justice and Reconciliation, and strengthen vetting mechanisms for advancement to public office. Far from being an obstacle to peace, accountability mechanisms conducted in an impartial and transparent manner can help overcome some of the grievances that fuel the insurgency. Extending such processes to the international military forces that have consistently failed to hold themselves accountable for abuses against the civilian population is crucial.[175] However, this would require less haste and more visionary leadership from the Afghan government and its international supporters to recognize that accountability as well as reconciliation offers a path towards durable peace and greater respect for basic rights.

 

[78] Abubakar Siddique, “Peace With Taliban Remains Elusive” Radio Free Europe Radio Liberty, February 26, 2010, http://www.rferl.org/content/Peace_With_Taliban_Remains_Elusive/1969579.html (accessed March 26, 2010).

[79]Human Rights Watch interview with woman parliamentarian, Kabul, February 16, 2010.

[80]The Afghan government describes two processes in its published summary of the Afghanistan Peace and Reintegration Program:

a)    Peace and Reintegration at tactical and operational level: There are various layers that need to be reintegrated. Different layers will require different packages and approaches to meet their needs successfully. At the tactical level the reintegration effort focuses on foot soldiers, group, and local leaders who form the bulk of the insurgency, and;

b)    Strategic reconciliation level: Efforts at the Strategic level focus on the leadership. This is a complex and highly sensitive issue that needs a broad approach. The package for these levels may include: addressing the problem of sanctuaries, measures for outreach and removal from the UN sanction list, ensuring the severance of links with Al-Qaida, securing political accommodation, or potential exile in a third country.

“The Afghanistan Peace and Reconciliation Program – Summary Program Outline,” document obtained by Human Rights Watch from Afghan government official, February 2010, Kabul, also available at http://www.scribd.com/doc/27707151/Afghanistan-London-Conference-Document-28-Jan-2010 (accessed March 25 2010), p. 17.

[81] On Afghan government calls for reconciliation see Michael Semple, “Reconciliation in Afghanistan,” United States Institute for Peace, 2009, p. 53. There has been low- and mid-level contact between the Afghan government and individuals associated with the Taliban and Hezb-i-Islami since 2001. International officials have had contact with insurgents for years, which was exposed in December 2007 when EU official Michael Semple and UN official Mervyn Patterson were expelled from Afghanistan, ostensibly for having had talks with Taliban leaders that had not been sanctioned by the government, although the expulsion was likely political. (Michael Semple had been in close contact with senior government figures about his work.) The former UN special representative in Afghanistan, Kai Eide, confirmed before leaving his post in March 2010 that he had held meetings with Taliban representatives.

[82] In October 2008 US Defense Secretary Robert Gates stated that, “There has to be ultimately, and I’ll underscore ultimately, reconciliation as part of a political outcome to this… That’s ultimately the exit strategy for all of us.” “Pentagon sees reconciliation with Taliban, not Qaeda,” Reuters,October 9, 2008, http://www.reuters.com/article/idUSTRE4987PH20081009 (accessed June 10, 2010).

[83] Transcript of President Barack Obama’s Speech to the West Point Military Academy, provided by the White House, published by PBS, http://www.pbs.org/newshour/bb/asia/july-dec09/obamaspeech_12-01.html.

[84] Analyst Ahmed Rashid speaking at United States Institute for Peace event, Washington DC, April 13, 2010, http://www.usip.org/newsroom/webcasts (accessed April 13, 2010).

[85] David Gollust, “US Cautious on Afghan Outreach to Taliban,” VOA,November 23, 2009, http://www1.voanews.com/english/news/usa/US-Cautious-on-Afghan-Outreach-to-Taliban-71877342.html (accessed March 26 2010).

[86] “[W]e really have not seen any firm intelligence that there’s a real interest among the Taliban, the militant allies of Al Qaida, Al Qaida itself, the Haqqanis, TTP [Tehrik-i-Taliban Pakistan], other militant groups. We have seen no evidence that they are truly interested in reconciliation, where they would surrender their arms, where they would denounce Al Qaida, where they would really try to become part of that society. We’ve seen no evidence of that and very frankly, my view is that with regards to reconciliation, unless they’re convinced that the United States is going to win and that they’re going to be defeated, I think it’s very difficult to proceed with a reconciliation that’s going to be meaningful.” See transcript of interview with CIA Director Leon Panetta: Jake Tapper, “This Week,” ABC News, June 27, 2010, http://abcnews.go.com/ThisWeek/week-transcript-panetta/story?id=11025299 (accessed June 29, 2010).

[87] “Commander’s Initial Assessment,” sent by General Stanley McChrystal to Secretary of Defense Robert Gates, August 30, 2009, document released by The Washington Post, September 21, 2009, http://media.washingtonpost.com/wp-srv/politics/documents/Assessment_Redacted_092109.pdf (accessed May 1, 2010), pp. 2-13. 

[88] Pakistan signaled in early 2010 that it would want to be included in negotiations with insurgents. In February 2010 the Pakistanis arrested Mullah Abdul Ghani Baradar, who was the top military commander of the Afghan Taliban. At the time it was reported that his arrest was viewed as a setback to reconciliation by the Afghan president. It was reported in June that the head of the Pakistan army, General Ashfaq Parvez Kayani has held a series of meetings with President Hamid Karzai, and has reportedly offered to broker deals. Jane Perlez, Eric Schmitt and Carlotta Gall, “Pakistan is Said to Pursue Foothold in Afghanistan,” The New York Times, June 24, 2010, http://www.nytimes.com/2010/06/25/world/asia/25islamabad.html?scp=1&sq=haqqani&st=cse (accessed June 29, 2010).

[89] There are numerous examples, including: “Statement of the Leadership Council of the Islamic Emirate of Afghanistan regarding the London Conference,” Voice of Jihad website, January 28, 2010,   http://alemarah.info/english/index.php?option=com_content&view=article&id=1132:statement-of-the-leadership-council-of-the-islamic-emirate-of-afghanistan-regarding-the-london-conference&catid=5:statement-&Itemid=22 (accessed March 26, 2010); Mullah Baradar, a senior Taliban leader, sent a similar message in response to reintegration proposals in President Obama’s speech in December 2009, http://alemarah.info/english/index.php?option=com_content&view=article&id=359:remarks-of-esteemed-mullah-brader-akhund-made-to-media-about-obamas-new-strategy&catid=5:statement-&Itemid=22 (accessed March 26, 2010).

[90] The United Nations added Hekmatyar to a sanctions list (known as the Consolidated List) mandated by Security Council Resolution 1267 (1999) concerning Al-Qaida and the Taliban and Associated Individuals and Entities, http://www.un.org/sc/committees/1267/NSQIH8803E.shtml (accessed March 24 2010). Hekmatyar was added to the US Specially Designated Global Terrorists list by the US Treasury Office of Foreign Asset Control in 2003, http://www.ustreas.gov/offices/enforcement/ofac/programs/terror/terror.pdf (accessed March 24, 2010).     

[91]Karzai ‘holds talks’ with Haqqani,” Al Jazeera, June 28, 2010, http://english.aljazeera.net/news/asia/2010/06/20106277582708497.html (accessed June 28, 2010). The Haqqani network was named after the former Mujahidin commander Jalaluddin Haqqani, and is now run by his son, Sirajuddin Haqqani, who is described on the UN’s sanction list (Ibid.) as a “major operational commander in the eastern and southeastern regions,”  http://www.un.org/sc/committees/1267/consolidatedlist.htm (accessed June 29, 2010). The Haqqani network has claimed responsibility for or involvement in some of the major attacks in Afghanistan in recent years in Kabul and on US and NATO military bases. 

[92]Ibid.

[93] Kate Clark, “Reviewing prisoners after the peace jirga,” Afghan Analysts Network, June 15, 2010, http://aan-afghanistan.com/index.asp?id=828 (accessed June 22, 2010); Sayed Salahuddin, “Taliban suspects released after Afghan jirga deal,” Reuters,June 21, 2010, http://www.alertnet.org/thenews/newsdesk/SGE65K092.htm (accessed June 22, 2010)

[94] US Special Representative to Afghanistan and Pakistan Richard Holbrooke: “The overwhelming majority of these people are not ideological supporters of Mullah Omar [the fugitive Taleban leader] and al-Qaeda… Based on interviews with prisoners, returnees, experts, there must be at least 70 per cent of these people who are not fighting for anything to do with those causes.” Sam Coates and James Boone, “Taleban fighters to be “bought off” with $500m,” The Times, January 28, 2010, http://www.timesonline.co.uk/tol/news/world/afghanistan/article7005445.ece (accessed April 10, 2010). Holbrooke told reporters in Kabul in January 2010: “There are a lot of people out there fighting for the Taliban who have no ideological commitment to the principles, values or political movement led by Mullah Omar… This is the majority of people fighting with the Taliban. And there is no vehicle for them to come in from the cold right now." Alex Rodriguez and Julian E. Barnes, “Afghanistan, Allies to launch new effort to reintegrate Taliban into society,” Los Angeles Times, January 31, 2010, http://www.stripes.com/news/afghanistan-allies-to-launch-new-effort-to-reintegrate-taliban-into-society-1.98544. David Miliband, former British Foreign Secretary, “People are drawn into the insurgency for different reasons, primarily pragmatic rather than ideological. So there are the foot soldiers whom the Taliban pay $10 a day – more than a local policeman.” Speech on Afghanistan at NATO headquarters in Belgium on July 27, 2009 and published by Council on Foreign Relations, http://www.cfr.org/publication/19909/milibands_speech_on_afghanistan_july_2009.html (accessed June 10,2010).

[95] “Taliban militants ‘can be turned’,” BBC News, September 17, 2009, http://news.bbc.co.uk/1/hi/world/south_asia/8261442.stm (accessed March 26 2010).

[96] Many of those interviewed questioned whether attempts to separate the foot soldiers is possible without acceptance from higher levels of the insurgency, so the ideological nature of the foot soldier is of less relevance than the nature of the leadership, at mid and high levels. Human Rights Watch interviews with analysts in Kabul, London, Boston and Washington, DC, 2009-2010.

 

[97] Human Rights Watch, World Report 2010 (New York: Human Rights Watch, 2010), Pakistan Chapter, http://www.hrw.org/en/node/87399; “Pakistan, SWAT deal grave threat to rights,” Human Rights Watch news release, April 15, 2009, http://www.hrw.org/en/news/2009/04/15/pakistan-swat-deal-grave-threat-rights.

[98] Afghan Women’s Network, “Reaction from Afghan Women Civil Society Leaders to the Communiqué of the London Conference on Afghanistan, Statement,” January 29, 2010, http://www.unifem.org/news_events/story_detail.php?StoryID=1019 (accessed March 31, 2010).

[99]Human Rights Watch telephone interviews with Orzala Ashraf Nemat, activist and participant, June 8, 2010, with Mary Akrami, activist and participant, June 10, 2010, and with Mahbouba Seraj, activist and parliamentary candidate, June 9, 2010. See also Wazhma Frogh, blogger and activist, “Peace Jirga Blog 10: The Afghan Peace Jirga – where peace means politics,” June 7, 2010, http://wazhmafrogh.blogspot.com/. 

[100] Human Rights Watch interview with Najla Ayubi, women’s rights activist, Washington, DC, June 23, 2010, as well as telephone and email communication from women’s rights activists in Kabul to Human Rights Watch, June 22, 2010.

[101] Human Rights Watch interview with Najla Ayubi, Washington, DC, June 23, 2010.

[102] Telephone and email communication from women delegates to the jirga to Human Rights Watch, June 1-10, 2010.

[103]Human Rights Watch telephone interview with Mary Akrami, Afghan Women’s Network, June 1, 2010.

[104]The Emergency Loya Jirga was a gathering of approximately the same size as the Consultative Peace Jirga. It was held in Kabul in June 2002. It confirmed Hamid Karzai as head of State and agreed the structure and composition of the Transitional Administration, which governed Afghanistan until elections in 2004. United Nations Assistance Mission in Afghanistan (UNAMA), “Procedures for Afghanistan’s Emergency Loya Jirga,” April 1, 2002, http://www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/729c2e3eb768688c85256b8e00546598 (accessed June 23, 2010)

[105]Human Rights Watch telephone interview with Mahbouba Seraj, activist and parliamentary candidate, June 9, 2010.

[106] “The Resolution Adopted at the Conclusion of the National Consultative Peace Jirga,” Islamic Republic of Afghanistan, Office of the President, June 2-4 2010, http://president.gov.af/Contents/88/Documents/1834/resolution_English.htm, art. 8. Translation by the Afghan government.

[107] Telephone and email communication from women’s rights defenders to Human Rights Watch, June 12, 22, and 23, 2010.

[108] Human Rights Watch interview with Mohammad Masoom Stanekzai, Kabul, March 3, 2010.

[109] At the time of writing the High Level Peace Council had not been appointed. Women’s rights activists told Human Rights Watch that the Joint Secretariat was effectively functioning, though not officially announced, and that no women had been included.

[110]Human Rights Watch interview with Hasina Safi, Executive Director, AWEC, Kabul, February 17, 2010.

[111] The communiqué of the London Conference notes the need for reconciliation to respect the principles enshrined in the constitution. Afghan Leadership, Regional Cooperation, International Partnership, London Conference Communiqué, http://afghanistan.hmg.gov.uk/en/conference/communique/ (accessed March 31, 2010), para. 13.

[112] Afghanistan Peace and Reconciliation Commission, “Peace and Reconciliation Executive Summary,” April 26 2010, document circulated among national and international stakeholders, and on file with Human Rights Watch.

[113] The Afghan Constitution of 2004 states in article 22: “Any kind of discrimination and distinction between citizens of Afghanistan shall be forbidden. The citizens of Afghanistan, man and woman, have equal rights and duties before the law.” Article 83, on political rights for women, states that at least two women shall be elected to the Wolesi Jirga (lower house) per province (of which there are 34, which results in 68 MPs, which is around one quarter of the total). Article 43 guarantees the right of education for all Afghans. Article 44 specifies the duty of the state to provide a balanced education to women. 

[114]Human Rights Watch interview with Orzala Ashraf Nemat, Kabul, February 17, 2010.

[115]Human Rights Watch telephone interview with Wazhma Frogh, April 8, 2010.

[116] Article 3 states that “No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan.”

[117]Human Rights Watch telephone interview with activist, April 2010.

[118]A statement on the Al Emarah (“The Emirate”) a Taliban website, rejected the government’s reconciliation offers: “They [the government] put forward conditions, which are tantamount to escalating the war rather than ending it. For example, they want Mujahideen to lay down arms, accept the constitution and renounce violence. None can name this reconciliation” [emphasis added]. Al Emarah website blocked at time of writing, extract also found at http://www.scribd.com/doc/26490653/Can-We-Call-This-Reconciliation (accessed June 21, 2010). Taliban reject Karzai reconciliation offer,” Reuters, February 6 2010, http://www.alertnet.org/thenews/newsdesk/SGE615034.htm (accessed April 9, 2010). The Times of London conducted an interview with someone it describes as a senior member of the Taliban shura that commands operations in Helmand and Kandahar (the Quetta Shura): “All the mujaheddin seek is to expel the foreigners, these invaders, from our country and then to repair the country’s constitution. We are not interested in running the country as long as these things are achieved.” Stephen Grey, “Taliban’s supreme leader signals willingness to talk peace,” The Times, April 18, 2010, http://www.timesonline.co.uk/tol/news/world/afghanistan/article7100889.ece (accessed June 10, 2010).

[119] Human Rights Watch interviews with diplomats, Kabul, February 2010.

[120] Humam Rights Watch interview with diplomat, Kabul, February 2010.

[121] Human Rights Watch interview with diplomat, London, January 29, 2010.

[122] Afghan Leadership, Regional Cooperation, International Partnership, London Conference Communiqué, http://afghanistan.hmg.gov.uk/en/conference/communique/ (accessed March 31, 2010), para. 13.

[123] Human Rights Watch interview with Shagol Rezaee MP, Kabul, February 11, 2010.

[124] Telephone and email communication from activists to Human Rights Watch, April 2010. The speech was not recorded.

[125] Thomas Ruttig, “Gulbuddin ante portas - again (Updated),” Afghan Analysts Network, March 22, 2010, http://aan-afghanistan.com/index.asp?id=706 (accessed June 10, 2010).

[126]Human Rights Watch interview with Samira Hamidi, Executive Director, Afghan Women’s Network, Kabul, February 14, 2010.

[127] “President Appoints Constitutional Oversight Body,” Wakht News Agency, June 1, 2010, http://www.wakht.com/news/013225.php (accessed June 20, 2010).

[128]Email communication from Afghan Women’s Network members to Human Rights Watch, including copy of April 2010 advocacy document now on file with Human Rights Watch. The document highlights constitutional articles 22 and 83 (see above), and the Elimination of Violence Against Women law, which was passed by presidential decree in July 2009. For more on the law see Human Rights Watch, “We Have the Promises of the World,section IV (“Sexual Violence”).

[129] Human Rights Watch interviews with women’s rights activists, February to June 2010, Kabul and London. The National Action Plan for Women of Afghanistan is 10-year plan of action by the Government of Afghanistan to implement its commitments to furthering women’s equality. These commitments are provided under the Afghan Constitution as well as international treaties such as the Convention on the Elimination of all forms of Discrimination against Women (CEDAW). NAPWA can be accessed here: http://www.ands.gov.af/ands/Provincial_Consultations/details.asp?id=22.

[130] In his speech to the consultative jirga, President Karzai acknowledged that government officials had “misbehaved, either for personal benefit or due to ignorance.” The final resolution of the Consultative Peace Jirga also observed that widespread malfeasance by government officials has helped fuel the insurgency: “The government with public support should take every necessary step to deliver good governance, make sure appointments are made on the basis of merits, and fight administrative and moral corruption as well as illegal property possession at national and provincial level. This is the key in boosting public confidence to the government and for a successful peace process.” “The Resolution Adopted at the Conclusion of the National Consultative Peace Jirga,” June 2-4, 2010, http://president.gov.af/Contents/88/Documents/1834/resolution_English.htm, art. 8. Translation by the Afghan government.

[131]Human Rights Watch telephone interview with Wazhma Frogh, April 8, 2010.

[132]Human Rights Watch interview with Shinkai Karokhail MP, Kabul, February 16, 2010.

[133]Human Rights Watch interview with Fawzia Kufi MP, Kabul, February 13, 2010.

[134] Human Rights Watch interview with Naureen. N (pseudonym), Kabul, February 18, 2009.

[135]“Grievance resolution. In many cases, communities, victims of the conflict or demobilized combatant groups will bring forward legitimate local grievances which need to be resolved as a condition of successful peace and reintegration. The grievances may involve crimes, local corruption, and tribal and family disputes over land and other resources which have caused the conflict. Provincial and District Governors will oversee the establishment of shuras to resolve the grievances. Civil society groups funded by the program will support the process, assisting communities to select their representatives and ensure participation of victims. Government and civil society groups should ensure that unconstitutional practices, such as, most serious cases of crime claimed by the victims will be referred to the formal justice system.” Afghanistan Peace and Reconciliation Commission, “Peace and Reconciliation Executive Summary,” p. 23.

[136] ASOP was mostly funded by USAID, and implanted by the Afghan government through the Independent Directorate of Local Government (IDLG), a directorate that reports directly to the President.

[137]Human Rights Watch interviews with analysts and several international officials involved in ASOP, 2008-2010, Kabul. See also a critique of ASOP in “Caught in the Conflict - A briefing paper by eleven NGOs operating in Afghanistan for the NATO Heads of State and Government Summit, April 3-4, 2009,” http://www.oxfam.org.uk/resources/policy/conflict_disasters/downloads/bp_caught_in_conflict_afghanistan.pdf (accessed June 10, 2010), p. 6.

[138]Human Rights Watch interview with government official, who described ASOP as “not dead, but sleeping,” Kabul, February 17, 2009. 

[139] At the time of writing we had little access to information about the human rights impact of the appointment.

[140]Human Rights Watch interview with diplomat, Kabul, June 2008. Human Rights Watch interview with diplomat, Kabul, May 2010.

[141] Human Rights Watch interview with Mohammad Masoom Stanekzai, Kabul, March 3, 2010.

[142]Human Rights Watch interviews with government officials, international officials and analysts, 2007-2010.

[143] There are few recent examples of reintegration that be evaluated in terms of their impact on women’s rights (though the wider impact of impunity stemming from the absence of vetting or accountability is clear). Mohammed Masoom Stanekzai told Human Rights Watch that there had been some candidates for reintegration in Herat (primarily a Tajik criminal/insurgent faction rather than Taliban or Hezb-i-Islami (Gulbuddin)), but that the government had not been able to provide them with reintegration programs yet. In the early years of the new government there were some successful attempts to bring individual Taliban commanders and politicians into government, several of whom are now in Parliament. Women parliamentarians interviewed say tend to vote against women’s rights, but do not constitute a powerful block (less powerful than former Hezb-i-Islami commanders for example, many of whom are politically integrated). Previous attempts at reintegration under the near-defunct “Afghanistan National Independent Peace and Reconciliation Commission” (generally known as the PTS, the abbreviation of the Dari name, the Programme Tahkim Sulh) are not well regarded. The PTS claims that through its efforts 7,106 insurgents have joined the peace process. See the Peace and Reconciliation Commission website, http://www.pts.af/index.php?page=en_Accomplishments. Former Taliban minister Mauwlawi Arsallah Rahmani told Human Rights Watch during a February 10, 2010 interview in Kabul that “They claim that they have brought 7,000 Taliban to join the peace process. But I don’t see them, where are they?” Many experts confirm these doubts, for instance Michael Semple in  “Reconciliation in Afghanistan,” p. 55: “Consistent anecdotal evidence indicates that the great majority of those passing through the PTS system have not recently been involved in conflict, which for all intents and purposes makes their laying down of arms meaningless. A perusal of the PTS records indicates that almost no previously known insurgents have participated in the program.”

[144]Human Rights Watch interview with Fawzia Kufi MP, Kabul, February 13, 2010.

[145] National Reconciliation, General Amnesty, and National Stability Law, Islamic Republic of Afghanistan, Office of State Minister for Parliamentary Affairs, General Directorate of Administrative Affairs, no. 44., dated 16/2/1386 (May 6, 2007), in the President’s Letter to the Minister of Justice, to publish the resolution in the official gazette no. 14712, dated 09/09/1387 (November 29, 2008).

[146]Human Rights Watch interviews with Dr. Sima Samar, Chair, AIHRC, Kabul, February 8, 2010, and Nader Nadery, Commissioner, AIHRC, Kabul, March 4, 2010. Dr. Samar said that Karzai promised that he would not sign the law. In May 2009 Afghan representatives at the 2009 United Nations Universal Periodic Review were questioned about the legal status of the Afghanistan’s National Reconciliation, General Amnesty, and National Stability Law. They told the Human Rights Council: “Although the National Assembly approved the National Reconciliation Bill, the president did not sign the bill.” United Nations, General Assembly, Human Rights Council Working Group on the Universal Periodic Review 5th Session, Geneva, 4-15 May 2009, “National Report submitted in Accordance with Paragraph 15 (A) of Annex to Human Rights Council Res 5/1,” http://ap.ohchr.org/documents/alldocs.aspx?doc_id=14920, para. 43.

[147]The constitution does not require the President’s signature. Article 59 of the Afghan constitution states, “In case the President rejects what the National Assembly has approved, the President shall send it back, within fifteen days from the date it was presented, to the House of People mentioning the reasons for rejection, and, with expiration of the period or if the House of People re-approves it with two thirds of all the votes, the draft shall be considered endorsed and enforceable.” The President did make amendments to the National Stability and Reconciliation law, which were then approved by Parliament.  However, the Afghanistan Independent Human Rights Commission told Human Rights Watch that Parliament was not in quorum when it approved the President’s amendments, so the law is not enforceable. There was no constitutional court functioning at the time of writing to resolve such disputes (though appointments to a new “Constitutional Oversight Committee” were made in May 2010). Legislative procedure outlined in the constitution is often ignored or contested (for example the Mass Media law was not gazetted for one year after being passed by Parliament, which many journalists interviewed by Human Rights Watch regarded as a deliberate and political delay by the Ministry of Information and Culture and the President).

[148] Human Rights Watch interviews with Emily Winterbottom, Afghanistan Research and Evaluation Unit (AREU), Kabul, March 10, 2010. There is some confusion about when the law was gazetted. The date on the law says December 2008, though it did not appear on the Ministry of Justice website until December 2009, and was not distributed to the usual recipients of newly gazetted laws until January 2010. See also Afghanistan Research and Evaluation Unit (AREU), “The State of Transitional Justice in Afghanistan Actors, Approaches and Challenges,” http://areu.org.af/index.php?option=com_docman&Itemid=26&task=doc_download&gid=760 (accessed June 10, 2010), p. 9.

[149] “Resolution of National Assembly on National Reconciliation and General Amnesty to the President No. 44, Date: 16/02/1386,” art. 3.3, on file with Human Rights Watch. 

[150]Ibid.

[151] See International Committee of the Red Cross, Customary International Humanitarian Law (Cambridge: Cambridge Univ. Press, 2005), rule 159.

[152] See Ibid., rule 158, citing the grave breaches provisions of the Geneva Conventions of 1949; Genocide Convention, art. VI; Convention against Torture, art. 7. See also UN Commission on Human Rights, “Impunity,” Resolution 2004/72, E/CN.4/RES/2004/72 (“Reaffirming the duty of all States to put an end to impunity and to prosecute, in accordance with their obligations under international law, those responsible for all violations of human rights and international humanitarian law that constitute crimes … Convinced that impunity for violations of human rights and international humanitarian law that constitute crimes encourages such violations and is a fundamental obstacle to the observance and full implementation of human rights and international humanitarian law … .”). See also Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes against Humanity, adopted December 3, 1973, G.A. Res. 3074, 28 UN GAOR Supp. (No.30) at 78, U.N. Doc. A/9030/(1973) (“War crimes and crimes against humanity, wherever they are committed, shall be subject to investigation and the persons against whom there is evidence that they have committed such crimes shall be subject to tracing, arrest, trial and, if found guilty, to punishment.”).

[153]“Afghanistan: Repeal Amnesty Law,” Human Rights Watch news release, March 20, 2010, http://www.hrw.org/en/news/2010/03/10/afghanistan-repeal-amnesty-law.

[154] The Action Plan for Peace, Reconciliation and Justice was launched by the government of Afghanistan in 2006, though little has been done to further its goals, which are: 1) acknowledgment of the suffering of the Afghan people; 2) ensuring credible and accountable state institutions; 3) truth-seeking and documentation; 4) promotion of reconciliation and national unity; and 5) establishment of effective and reasonable accountability mechanisms.

[155] Press conference comments and statement released at a press conference by the Transitional Justice Coordination Group, attended by Human Rights Watch, Kabul, March 10, 2010.

[156] “Top UN human rights official in Afghanistan calls for repeal of amnesty law,” UN News Centre, March 25, 2010, http://www.un.org/apps/news/story.asp?NewsID=34198 (accessed June 10, 2010).

[157] Email communication from Canadian Foreign Ministry officials to Human Rights Watch, March 2010. The concerns were raised at a special parliamentary commission on Afghanistan in March 2010. 

[158] Human Rights Watch interviews with diplomats in Kabul, February, March and May 2010. One source also stated that British and French diplomats had also cautioned other embassies in Kabul against speaking out against the law. Email communication from diplomat to Human Rights Watch, March 2010. 

[159] UNAMA press conference with the United Nations Special Representative of Secretary-General for Afghanistan, Staffan de Mistura, June 12, 2010, http://www.reliefweb.int/rw/rwb.nsf/db900sid/AZHU-86CN55 (accessed June 14, 2010).

[160] Human Rights Watch interview with Shagol Rezaee, Kabul, February 11, 2010.

[161] Human Rights Watch, Blood Stained Hands - Past Atrocities in Kabul and Afghanistan’s Legacy of Impunity, ISBN 1-56432-334-X, July 2005, http://www.hrw.org/en/reports/2005/07/06/blood-stained-hands-0; Human Rights Watch, Afghanistan - Massacre at Mazar-iSharif, pp. 2-3; The Afghanistan Justice Project, “Casting Shadows: War Crimes and Crimes against Humanity: 1978-2001”; “UN Mapping Report, 2005.”

[162] For example, Mullah Baradar, a senior Taliban official, is cited in The Afghanistan Justice Project, “Casting Shadows: War Crimes and Crimes against Humanity: 1978-2001,” pp. 124 and 128. 

[163]Human Rights Watch interview with Afghan government official, Kabul, March 3, 2010.

[164] Human Rights Watch interview with a senior US official. This view was also reflected in Human Rights Watch interviews with US officials from the Department of State and Department of Defense, Kabul and Washington, DC, February 2010.

[165] Human Rights Watch interview with senior Afghan government official, Kabul, March 2010, and interviews with US and UK officials, Kabul, February and March 2010.

[166] Human Rights Watch interviews with US officials at the US Embassy, Kabul, February 2010, with US officials in Washington, DC, February 2010.

[167] Human Rights Watch interviews with US officials, Washington, DC, March and June, 2010.

[168] Human Rights Watch interview with Suraya Perlika, Director, All Afghan Women’s Union, Kabul, February 16, 2010.

[169]Human Rights Watch interview with activist, Kabul, February 17, 2010. 

[170] The Bonn Agreement was signed on December 5, 2001 by representatives of several different anti-Taliban factions and political groups: http://unama.unmissions.org/Portals/UNAMA/Documents/Bonn-agreement.pdf. It established a roadmap and timetable for establishing peace and security, reconstructing the country, reestablishing some key institutions, military demobilization and integration, international peacekeeping, and human rights monitoring.

[171]Human Rights Watch telephone interview with Wazhma Frogh, April 8, 2010.

[172]Human Rights Watch interview with Shinkai Karokhail MP, Kabul, February 16, 2010.

[173] David Miliband, Former British Foreign Secretary, “How to end the war in Afghanistan,” New York Review of Books, April 1, 2010, http://www.nybooks.com/articles/archives/2010/apr/05/how-to-end-the-war-in-afghanistan/?pagination=false; “UN Security Council Report, Profile: Afghanistan,” November 7, 2006, http://www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.2232713/ (accessed June 8,2010); Jonathan Goodhand and Mark Sedra, “Bargains for Peace – Aid, Conditionalities and Reconstruction in Afghanistan,” Netherlands Institute of International Relations, http://www.clingendael.nl/publications/2006/20060800_cru_goodhand_sedra.pdf (accessed June 8 2010), p. 7; Ahmed Rashid, “Inside the Pakistan-Taliban Relationship: Six Questions for Ahmed Rashid, Author of Descent Into Chaos,”  Harpers’ Magazine, July 30, 2008, http://harpers.org/archive/2008/07/hbc-90003347 (accessed June 8, 2010).

[174]Dexter Filkins, “Overture to Taliban Jolts Afghan Minorities,” New York Times, June 26, 2010,  http://www.nytimes.com/2010/06/27/world/asia/27afghan.html?src=twt&twt=nytimesworld (accessed June 29, 2010).

[175] For examples of abuses by US and ISAF forces see: Human Rights Watch, Troops in Contact – Airstrikes and Civilian Deaths in Afghanistan, ISBN 1-56432-362-5, September 8, 2008, http://www.hrw.org/en/reports/2008/09/08/troops-contact-0; Letter from Human Rights Watch to US Defense Secretary Robert Gates, “Airstrikes in Azizabad,” January 15, 2008, http://www.hrw.org/en/news/2009/01/14/letter-secretary-defense-robert-gates-us-airstrikes-azizabad-afghanistan; “Afghanistan: US should Act to End Bombing Tragedies,” Human Rights Watch news release, May 14, 2009,  http://www.hrw.org/en/news/2009/05/14/afghanistan-us-should-act-end-bombing-tragedies.