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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 Afghanistans 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 Afghanistans 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 Afghanistans 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 prosecutors 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
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 Afghanistans 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
Afghanistans history of abuse that are not dealt with by the Special Court,
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
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
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
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
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
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
Candidates and Elected Officials
In future election periods, Afghanistans 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
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 Generals 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.
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
prosecutors 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
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
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
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