A bitter dispute over a Taliban demand that the Afghan government release up to 5,000 prisoners before the start of intra-Afghan peace negotiations has exposed fundamental problems in the Afghan justice system. These flaws may amplify fears among Afghans that the peace process will not seek to end longstanding impunity.
Since 2002, successive Afghan governments have ignored calls for accountability for serious abuses and instead promoted individuals implicated in war crimes and torture, adopted an amnesty law for human rights abusers, and argued – unsuccessfully – against an International Criminal Court investigation. Although Afghanistan incorporated war crimes and crimes against humanity as part of its 2017 penal code, its investigations have focused only on attacks by Islamic State (also known as ISIS) groups – not alleged crimes by government forces or the Taliban.
This failure to investigate has created a major problem for potential prisoner releases. Officials trying to ascertain whether convicted Taliban identified for possible release may have committed war crimes won’t get any guidance from the vague charges under which many are held.
The government is imprisoning many people under overly broad terrorism laws, some of which provide for indefinite preventive detention. Those held may include captured fighters as well as accused recruiters of suicide bombers. They also include people arbitrarily arrested in night raids who may have been falsely accused of Taliban links. And secret trials and torture to coerce confessions may make it impossible to determine which convicted prisoners actually committed serious crimes.
President Ashraf Ghani has proposed to initially release 1,500 prisoners who agree to renounce violence, among them “those who have completed their sentences” – and presumably should already have been released.
International humanitarian law encourages broad amnesties at the end of hostilities – except for those implicated in war crimes. But neither blanket releases for alleged war criminals nor prolonged imprisonment on dubious charges will bring Afghanistan closer to justice.
Groups representing victims of abuses have signalled their willingness to participate in the intra-Afghan talks. Their participation is important so that prisoner releases are not just a confidence-building measure but are part of a process that provides accountability for victims. Their presence would be a first step toward justice.
