(New York) -- Human Rights Watch today called on the United States and their Northern Alliance allies to guarantee the humane treatment of surrendered or captured forces from the Afghan town of Kunduz, and to institute fair screening procedures to determine who should face prosecution later for serious violations of international law, including war crimes and crimes against humanity.

Among the Taliban fighters in Kunduz are two Afghan commanders – Mullah Dadaullah and Mullah Fazil – who are implicated in some of the worst human rights abuses in recent Afghan history.

“The need to set up a justice mechanism to prosecute war crimes and crimes against humanity is no longer a theoretical issue, it’s an urgent priority,” said Sidney Jones, Asia Director of Human Rights Watch. She noted that the most immediate need is to ensure that prisoners are treated humanely, but that it is also critical to establish procedures for separating people suspected of grave crimes from those who simply volunteered or were recruited to fight for the Taliban. The fighters in Kunduz reportedly include many young men who volunteered after September 11.

Human Rights Watch's call came amid reports of the surrender or defection of thousands of Taliban troops from Kunduz, as the Northern Alliance, also known as the United Front, entered the town on Sunday. Some foreign fighters were among those who surrendered.

“Just as all prisoners, Afghan or non-Afghan, have the right to be treated humanely, so all people responsible for grave violations of international law, Afghan or non-Afghan, must be held accountable for their crimes,” said Jones.

Human Rights Watch said there appears to be a risk that Mullah Dadaullah and Mullah Fazil might be granted amnesty by the Northern Alliance or allowed to escape arrest. Both Afghans were party to surrender negotiations earlier in the week with Northern Alliance commander General Abdul Rashid Dostum. Those negotiations, according to press accounts, included discussions of a general amnesty for Afghan Taliban in Kunduz.

Dadaullah was in command of Taliban forces in June 2001 that burned down thousands of homes and shops in Yakaolang district, in the mainly Shi'a Muslim Hazarajat region, before retreating toward Bamiyan district. Daduallah's forces continued their scorched earth policy as they moved east, destroying homes, markets, and mosques in the western part of Bamiyan district. Most of the civilian population in western Bamiyan fled the Taliban advance, but those who remained behind, as well as some who had encamped in the hills, were summarily executed, according to witnesses interviewed by Human Rights Watch in August.

Dadaullah is also reportedly responsible for the massacre of Shi'a Muslims in Syedabad in Mazar-i Sharif, in 1998, independent human rights investigators have said, as well as other killings of civilians in northern Afghanistan over the past three years. These investigators cite numerous witness accounts placing Mullah Fazil in a command position inYakaolang during the Taliban occupation of the district in January 2001, when over 170 Shi'a Muslim civilians were detained and summarily executed in public view.

"Granting amnesty to Dadaullah and Fazil or allowing them to escape arrest will deny the possibility of justice for the victims of Taliban atrocities in northern and central Afghanistan," Jones said. "It will also signal to commanders and troops throughout Afghanistan that deliberate attacks on civilians and civilian property can be conducted with impunity."

An immediate obstacle to prosecution, however, is the absence of a competent justice mechanism in Afghanistan. Prolonged detention without trial would itself violate fundamental guarantees of due process.

As an initial step toward accountability, Human Rights Watch urged the United Nations Security Council to request the Secretary General to appoint a commission of experts to gather and analyze evidence of serious violations of international humanitarian law, including war crimes and crimes against humanity committed in Afghanistan. The commission’s findings could lay the foundation for criminal proceedings before an impartial tribunal, whether national or international as well as supporting some form of a truth commission. Security Council action is needed because there is likely to be little agreement among the various factions in Afghanistan about whose crimes should be examined.

Human Rights Watch today outlined three possible justice mechanisms, although it acknowledged that each was problematic.

  • Domestic courts of law. One option would be the reestablishment of a domestic legal system within Afghanistan, necessary in any event as part of the reconstruction process. That presupposes, however, agreement on a transitional administration under whose mandate Afghan courts would be reconstituted. Even with extensive retraining of Afghan jurists and technical assistance from international donors, reconstituting domestic courts would be a long-term proposition.
  • International war crimes tribunal for Afghanistan. An ad hoc international tribunal to try violations of international law committed in Afghanistan would have the advantage of more readily drawing upon the expertise of justices, lawyers, and legal staff trained in the application of international law. One major hurdle would be to secure a venue that was both neutral and accessible. Another would be to secure political support among various parties inside Afghanistan resistant to foreign involvement in Afghan affairs.
  • Trial in a third country. The principle of universal jurisdiction holds that every state has an obligation to bring to justice the perpetrators of crimes such as genocide, crimes against humanity, torture, and war crimes - no matter where the crime was committed, and regardless of the nationality of the perpetrators or their victims. If the first two options prove untenable in the short term, trial in third countries might be an interim solution.

Human Rights Watch noted that the military commissions recently authorized by President Bush both lack due process guarantees that are essential for a credible justice process and are not designed to address atrocities committed in Afghanistan.

Despite the obstacles to justice, Human Rights Watch said the issue of future prosecutions must be resolved quickly. Otherwise, there could be thousands of prisoners detained with no resolution of their cases in sight.

In the meantime, questions remain about where captured or surrendered Taliban would be held and under what conditions. Senior U.S. Defense Department officials have said that foreign Taliban fighters in Kunduz must not be allowed safe passage to a third country. Human Rights Watch noted that under the circumstances, the U.S. government should ensure that the Northern Alliance has the logistical means and political will to provide humane detention.