As delegates gather in Germany to discuss the composition of a transitional government in Afghanistan, it is crucial to ensure that principles of international human rights and accountability are incorporated in security and governance arrangements. The re-engagement of women in the political life of Afghanistan, as well as the reintegration of refugees and displaced persons are also essential to long-term peace and stability in the country.
We recognize that there is probably no way to avoid working with current commanders, whatever their records, to address current security concerns. However, distinctions must be made between short-term security needs and long-term political arrangements. Agreements reached in Bonn must avoid compromising the need to exclude from any future Afghan government those responsible for the most serious abuses of human rights and international humanitarian law.
We urge that the following recommendations on accountability, human rights, and refugee protection be incorporated in any efforts to build a future government in Afghanistan. If these guarantees are not put into place now, the risk will remain high that, whatever accord is reached, Afghans will continue to face brutality and destruction.
The establishment of short and long-term mechanisms to address accountability for serious violations of international human rights and humanitarian law in Afghanistan can help prevent return to the unrest that has existed for more than twenty years.
So far, the only accountability mechanisms proposed are the U.S. military commissions, recently authorized by President Bush, that lack the most fundamental due process guarantees and are not designed to address atrocities committed in Afghanistan. While participants at the Bonn meeting may be willing to address methods of prosecuting their foes, it is essential that accountability for abuses committed by their allies also be addressed.
Commission of Experts
As an initial step toward accountability, we urge the Secretary General to appoint a commission of experts to gather and analyze evidence of serious violations of international 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. While the choice of tribunal is debated, basic evidence could at the very least be preserved. The presence of commission investigators throughout Afghanistan would also help deter further grave abuses. Security Council action is needed because there is likely to be little agreement among the various factions in Afghanistan about whose crimes the commission should examine.
Possible Justice Mechanisms
A significant obstacle to prosecution of anyone charged with violations of human rights or international humanitarian law is the absence of a competent justice mechanism in Afghanistan. Prolonged detention without trial would itself violate fundamental guarantees of due process. Three possible justice mechanisms are outlined below.
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 serious 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 who might be 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.
Questions also 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. Under the circumstances, the U.S. government should ensure that the Northern Alliance takes all necessary measures to provide humane detention.
Despite the obstacles to justice, 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. The existence of workable justice options would also undermine the incentive for summary justice. In the immediate term, the following measures can also go far toward ensuring accountability for abuses.
No Amnesties from Prosecution
There should be no amnesty from prosecution for persons who have committed serious violations of international humanitarian law or crimes against humanity. Amnesty arrangements often seem expedient in peace-building. But more often, they undermine progress, by giving victims the sense that their grievances do not matter, and leaders the sense that they can get away with further atrocities. In Sierra Leone, for instance, a broad amnesty as part of the 1999 peace agreement contributed to the collapse of peace a year later. That should not be allowed to happen in Afghanistan, despite reported negotiations between the Northern Alliance and the Taliban about the possibility of amnesty for Afghan Taliban leaders in Kunduz who had been responsible for atrocities.
Excluding Perpetrators of International Crimes from a Future Government
Persons responsible for the most serious abuses of human rights and international humanitarian law must also not be included in a new government. Discussions on how to achieve this goal should begin now, at the earliest stages of planning for a post-Taliban Afghanistan. Although many potential Afghan leaders may not have clean hands, at the very least, those implicated in crimes against humanity, war crimes, and other grave abuses should be barred from holding office. Experience shows that past abusers who return to power often become repeat abusers. The inclusion of such leaders could also undermine efforts to create a government with broad support among Afghanistan's ethnic communities.
We note in this regard the declaration of the "Six Plus Two" countries on November 12 to the effect that a future government should be a "broad based, multi-ethnic, politically balanced, freely chosen Afghan administration representative of aspirations and at peace with its neighbors. This administration must be able to meet the needs of the Afghan people and respect human rights, regional stability and Afghanistan's international obligations."
Screening out human rights violators from Afghan military and police forces.
Every effort should be made to disarm persons who have been implicated in serious violations of human rights and international humanitarian law and to exclude them from Afghanistan's new armed forces and civilian police. Screening could be carried out by local authorities in conjunction with international monitors. Such screening has been implemented in other contexts, for example in El Salvador, where the U.N. assisted efforts to disqualify military personnel from service on the basis of their past records, and in Bosnia and Hercegovina, where the U.N. conducted vetting of applicants for the civilian police.
2. Women's Rights and Women's Participation
It is vital that a new government establish laws guaranteeing women's rights to education, free expression, mobility, employment, and health care, while ending discriminatory punishment of women. Women who are currently in detention for violating discriminatory laws and edicts should be immediately released. The international community should also proactively seek out Afghan women to ensure that they are receiving the relief and aid they need, especially for education and health care. Just as important, it should ensure that Afghan women are included in negotiations on the formation of a new government. There are many Afghan women leaders who have struggled for years against brutality in Afghanistan. Indeed, they have played a major role in keeping Afghanistan on the international agenda in recent years. A process that rejects their input from the outset will fail to meet their needs in the future - and it will lose any claim to being truly "broad-based."
Women must also be involved in post-conflict reconstruction as decision-makers. As the relief and reconstruction effort is being planned, women have critical information about how to ensure that such relief actually reaches the women of Afghanistan, particularly rural, widowed, illiterate, disabled, internally displaced, and returning refugee women. Women leaders at the local level also have a critical role to play in ensuring women's participation in development programs: their involvement facilitates dissemination of information through networks of women and women's rights NGOs.
3. Obtaining Basic Human Rights Commitments
Negotiators involved in efforts to establish a broad-based government for Afghanistan should seek commitments to uphold Afghanistan's obligations as a party to international human rights treaties, as well as fundamental principles of human rights and international humanitarian law. These should include guarantees of non-discrimination against ethnic and religious minorities, particularly ethnic Hazaras and other Shia Muslims, as well as groups that may form minorities within specific regions, such as ethnic Pashtuns in northern Afghanistan. Attention should also be paid to developing transitional justice mechanisms that could adjudicate competing claims over land and property, while providing accountability for any continuing abuses committed by government officials and security forces. International assistance in the post-armed conflict period should include financial and other support, such as training, for institutions involved in the administration of justice at all levels.
4. Return and Reintegration of Refugees and Internally Displaced Persons
The return and reintegration of refugees and internally displaced people is a critical element in building long-term peace and security in Afghanistan. Human Rights Watch urges all delegates at Bonn, as well as United Nations agencies, to formulate a working group on refugees, internal displacement, and repatriation.
The following measures should be considered by this working group:
Creation of a government department for refugees, displacement and repatriation: The working group should consider proposing the creation of a department in the future government of Afghanistan to liaise with U.N. and NGO officials on all issues relating to displacement and repatriation and to facilitate the voluntary return and reintegration of refugees and internally displaced persons.
Repatriation agreements: The working group should consider proposing a joint commission with representatives of Afghanistan, Pakistan, and Iran, as well as UNHCR, to establish timetables for repatriation, to draft principles and criteria for voluntary repatriation that ensure maximum protection for returnees, to identify short and long-term funding needs, and to draw up specific repatriation agreements between these countries.
Protection of displaced women and children: The working group should pay particular attention to the protection needs of displaced refugee women and children. These include protection against physical, sexual, and domestic violence and abuse; full and unimpeded access to appropriate assistance, including access to food, shelter, water, health care, and education for children; and full participation in decision-making and the planning and implementation of protection and assistance programs.