<<previous  |  index  |  next>>

Recommendations

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: