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Afghans want justice for the crimes of the past.  The Afghan Independent Human Rights Commission (AIHRC) completed an extensive survey in 2004, based on in-depth interviews and focus groups, addressing issues of justice and accountability for past abuses.  The survey makes it clear that the vast majority of Afghans want the past to be confronted, do not see such efforts as destabilizing, and want justice sooner rather than later.

According to the AIHRC survey results, 94 percent of Afghans consider justice for past crimes to be either “very important” (75.9 percent) or “important” (18.5 percent).  When asked what the effects would be for Afghanistan in bringing war criminals to justice, 76 percent said it would “increase stability and bring security,” and only 7.6 percent said it would “decrease stability and threaten security.”  Almost half of those questioned said war criminals should be brought to justice “now,” and another 25 percent said perpetrators should be tried “within two years.”

Human Rights Watch, along with numerous other international and Afghan non-governmental organizations, has repeatedly called on Afghan officials and international actors involved in Afghanistan to help create mechanisms to hold persons responsible for major human rights abuses, war crimes, and crimes against humanity committed during Afghanistan’s wars.  We fully agree with the AIHRC on the need for this issue to receive more attention.  We support their view that the president and government of Afghanistan should better prioritize justice for victims of past abuses and fully endorse efforts to hold perpetrators accountable. 

Human Rights Watch therefore urges the government to accelerate efforts to create justice-seeking mechanisms to sideline past abusers from political power and official positions and hold them accountable for their crimes.  We urge the government to embrace justice and accountability as vital for the rule of law and the protection of human rights now and in the future.

We also urge the government, with the active support of donors, to accelerate reforms to the judicial system of Afghanistan, which are essential to successful justice-seeking efforts.  The appointment of properly trained and independently-minded judges and prosecutors, who owe no allegiance to factional leaders or regional strongmen, is crucial.  The president should take a leadership role in creating the conditions necessary for genuine judicial independence, chiefly by ensuring that government officials do not interfere in individual cases before the courts.  The government and its donors must also prioritize efforts to create a well-educated legal profession. 

Some will argue that pursuing justice for past crimes will create political instability, as many human rights abusers and potential defendants remain in power at both the national and regional levels. 

We believe this threat is consistently overstated.  There is always a risk in seeking justice against powerful individuals for the human rights abuses they commit.  With the support of the international community and civil society, justice-seeking processes have been undertaken in similarly fragile post-conflict settings.  And as noted above, the AIHRC survey has indicated that three in four Afghans believe that achieving justice for past crimes would increase stability, not decrease it. 

Renewed respect for human rights and the rule of law can help to create sustainable stability in Afghanistan.  A serious and successful accountability process is a key means towards this goal. 

By contrast, one of the biggest threats to Afghanistan’s political stability and future comes from individuals who have committed serious human rights abuses in the past.  These are the people who are today most likely to resort to force and other extra-legal measures to circumvent and subvert Afghanistan’s political process and legal system.  To achieve long-term stability, the government will ultimately have to address the continuing threat from these individuals.

As an immediate first step, we recommend that the government implement a set of vetting processes for government officials, as specified in more detail below.

As detailed below, we also recommend that the government and key international actors work to create a Special Court to try past offenders.  We recommend that the court be comprised of both Afghan and international judges, with an international majority, and that the prosecutor’s office be led by an international prosecutor.  If it proves impossible to establish the Special Court in Afghanistan, because of political opposition, lack of judicial independence or political impartiality, or problems related to security of witnesses or court personnel, we recommend that the court be physically located outside of the country. 

We are aware of the domestic sensitivities to this second proposal and the legal and practical complexities of implementing it.  Still, we believe there are several good arguments for this approach that weigh in its favor.  A Special Court, ideally located in Afghanistan but elsewhere if necessary, would have the best chance of meeting recognized fair trial standards.  Such a court would also be better placed than a domestic court in the current environment to handle the complexities, both technical and political, of major trials.

But a Special Court, which will only take up a limited number of cases, will not be enough to address the enormity of Afghanistan’s past abuses.  For this reason, we further recommend that the president appoint a standing panel of high-level and independent Afghan and international experts to propose and help implement additional programs to address those aspects of Afghanistan’s history of abuse that are not dealt with by the Special Court, such as:

  • Past crimes that the Special Court does not have the capacity to address or which fall outside of its jurisdiction;

  • The establishment of an archive for the historical documentation of past abuses;

  • Recommendations on appropriate restitution or compensation mechanisms; and

  • Educational initiatives, such as the drafting of fair historical accounts in school textbooks.

    Specific recommendations are as follows:

    To the Afghan Government:

    Civil Service and Political Appointments

  • The president, provincial governors, and other public officials should not appoint to public office individuals who have had credible allegations made against them about the commission of serious violations of human rights and international humanitarian law or crimes against humanity.  Appointed officials already in office who have had credible allegations made against them should be dismissed.

  • Civil service applicants should be screened to reject applicants who have had credible allegations made against them about the commission of serious violations of human rights and international humanitarian law or crimes against humanity.  

  • Current civil servants who have had credible allegations made against them should be removed in accordance with civil service regulations.  The civil service regulations should be amended as necessary to permit the removal of persons in such circumstances in keeping with due process guarantees, including the right to contest the claims through an impartial and independent process.

  • The government should reform and strengthen the Civil Service Commission (CSC), as recommended by the AIHRC.  Persons appointed to the CSC should be independent experts without direct links to military and political factions. 

  • The CSC should be empowered to hold both public hearings and receive confidential information on allegations concerning past criminal acts by those appointed to public office.  CSC boards should maintain special mechanisms to allow women and girls to safely and confidentially provide information. 

  • Judgments on eligibility for office should not be based solely on past or present affiliations. Mere membership in a political party, military group, mujahedin militia, or government office, should not be considered a crime or abuse.  Persons subject to removal from positions should have the opportunity to know the evidence against them, obtain a fair hearing before an impartial board, and have the right to appeal the determination of that tribunal to the regularly constituted courts.

  • The AIHRC, along with established Afghan and international human rights groups, should be empowered to present evidence and bring complaints on behalf of victims and survivors of past abuses before the CSC.

  • The CSC should have regional boards empowered to hold hearings in regional centers.

    Candidates and Elected Officials

  • In future election periods, Afghanistan’s Electoral Commission should be empowered to hold public hearings at which allegations can be brought against candidates about their past serious human rights abuses, violations of international humanitarian law, and crimes against humanity, as well as violations of the electoral law and candidates legal qualifications.  (Under 2005 election arrangements, the Electoral Commission worked in cooperation with a U.N. component to hear complaints about candidates, but only about allegations of violations of the electoral law and candidates’ legal qualifications.)

  • The AIHRC should be empowered to present evidence and bring complaints before the Electoral Commission on behalf of victims and survivors of past abuses.  Persons alleged to have committed abuses should be given an opportunity to rebut charges and submit evidence.  

  • The Electoral Commission should issue a public report on the evidence presented. The Electoral Commission should forward all reports to the Attorney General’s office for possible criminal investigation.

  • The Electoral Commission should create regional boards empowered to hold hearings in regional centers.

  • In accordance with the Afghan constitution, future Electoral Commissions should enforce provisions that bar any candidates or elected officials who have been convicted of crimes against humanity or other criminal acts, or sentenced by a court to the deprivation of their civil rights.

  • The future parliament should work to formulate legislation defining the work of the Electoral Commission and the terms of its mandate.

    Criminal Prosecutions

  • To address crimes committed under international and domestic law during the armed conflicts in Afghanistan since 1978, the government should establish a Special Court, empowered to investigate and prosecute war crimes, crimes against humanity, and other serious human rights crimes. 

  • The Special Court should be empowered to prosecute individuals on the basis of Afghan law in effect at the time of the offense as well as applicable international law, including international humanitarian law, international law regarding crimes against humanity, and other relevant international criminal law. 

  • The Special Court must be independent and impartial and meet international fair trial standards.  It should include an effective protection program for victims and witnesses and their families.  Due to domestic sensitivities and the deep social stigma associated with sexual violence in Afghanistan, the Special Court should create confidential, anonymous, and secure mechanisms for women and girls to present evidence on sexual abuses.

  • Because the Afghan criminal justice system is currently incapable of  investigating and prosecuting complex international crimes, and because of practical difficulties in guaranteeing that such a court would be impartial if domestically administered, the Special Court should be a mixed court comprised of both Afghan and international judges and prosecutors.  To guard against political manipulation by powerful individuals who may be targets of criminal investigations, the court should have a majority of international judges and a prosecutor’s office led by an international prosecutor.  The government should work with the future parliament to address legal and constitutional issues arising from its creation.  If necessary, the government should seek to amend the Afghan Constitution to address these issues.

  • The AIHRC should be empowered to bring complaints to the prosecutor of the Special Court on behalf of victims and survivors.

  • The creation of a Special Court should be coordinated with broader efforts to improve and expand the criminal justice system in Afghanistan and to ensure compliance with international due process standards.

  • The government should grant no amnesties or other immunities to persons implicated in war crimes, crimes against humanity, or other serious violations of international human rights law.  There must be no exceptions for government officials. 

  • To address any future crimes of this magnitude and to bring Afghanistan into conformity with its treaty obligations, the government should implement the Rome Statute of the International Criminal Court, ratified by Afghanistan in 2003.  After the parliamentary elections scheduled for late 2005, the president should immediately propose legislation to the new parliament that would criminalize, under Afghan law, war crimes, crimes against humanity, genocide, and other serious violations of human rights.  The president should work with the new parliament to enact additional legislation as required by the Rome Statute.

    Other Mechanisms

  • The president should appoint a standing panel of high-level and independent Afghan and international experts to propose and help implement additional programs and policies to address issues that are not dealt with by the Special Court.  This should include an archive for the historical documentation of past abuses, recommendations on appropriate restitution or compensation mechanisms, and undertaking educational initiatives, such as the drafting of fair historical accounts in school textbooks.

    To International Actors and Donors:

  • International actors and donors should offer political, technical, and financial support to efforts to establish accountability mechanisms in Afghanistan, as discussed in above recommendations.

  • International actors should take into account public opinion in Afghanistan in formulating policies about past crimes and accountability mechanisms.

  • Other countries should fully cooperate with investigations into past abuses, including by allowing access to documents and other materials held outside Afghanistan.

    <<previous  |  index  |  next>>July 2005