By Sari Kouvo
Impunity is certainly a problem in Afghanistan, but now impunity has been made into law. After two years in legal limbo, the so-called amnesty bill (now titled the National Reconciliation, General Amnesty and National Stability Law) was published in the official gazette in December 2009.
While opinions differ about whether the law was formally passed to keep warlords calm, as payback for favors, to even the ground for reconciliation or is just an administrative mistake (unlikely!), the law – and the politics behind it – is another slap in the face for the proponents of justice, victims of war crimes and the fledging Afghan human rights community. (An unofficial English translation of the law is annexed below).
The National Reconciliation, General Amnesty and National Stability Law (hereafter, the Amnesty Law) has been in legal limbo since it was passed by the Parliament and approved by the President in March 2007. The proponents of the law have claimed that approval is enough and that it is actually already a law in force in Afghanistan, others have claimed that as long as it has not been published in the official gazette it cannot be considered a law in force. The Afghan government’s report prepared for the UN Human Rights Council session of 7 May 2009 brought some clarity: It stated that the Amnesty bill was not a law in force as it had not been published in the official gazette. In December 2009, while nobody was watching, the situation changed as the Amnesty bill was published in the official gazette.
Before a more detailed discussion about the content of the law and its implications for Afghanistan’s commitment under international law, let me first provide a brief background to the law.
Already at the Bonn Conference, efforts were made by some delegates to include an amnesty clause in the Agreement passed there. While this was avoided at that time, the post-Bonn politics have largely translated into a de facto amnesty for alleged perpetrators of human rights violations and war crimes.
During a brief moment in 2005, efforts to promote accountability was almost center stage in the policy debate on Afghanistan. This was after the publication of the Afghan Independent Human Rights Commission’s (AIHRC) national consultation about Afghan opinions with regard to justice, the “A Call for Justice” report). Around the same time, the UN High Commissioner for Human Rights (UNHCHR) sponsored a national conference on truth-seeking and reconciliation. This is when the Afghan government – after considerable international pressure – adopted its Action Plan for Peace, Justice and Reconciliation.
The today almost forgotten – but by no means obsolete – five-point and four-year action plan focused on truth-seeking, institutional reform and criminal accountability. (Note: There’s ongoing debate about whether the Action Plan should be considered to have come to its term when the actions are implemented or when the time limit was passed, I would personally opt for the first-mentioned option). At the time, the introductory statement that emphasized that there can be no amnesty for war crimes, crimes against humanity and obvious violations of human rights and the fifth action point that focused on criminal accountability for war crimes, caused most discussions within the Afghan government and the international community. In the final version of the action plan the focus on criminal accountability was watered down to the extent that the Action Plan only calls for the establishment of a taskforce that should give recommendations to the President on how Afghanistan should implement its international legal obligations relating to issues of accountability.
A year passed before President Hamed Karzai publicly launched the Action Plan adopted by his Cabinet. The launch itself was rather uneventful, but it coincided with the publication of a press release by Human Rights Watch (HRW) naming some of the alleged perpetrators currently holding public positions in Afghanistan and the execution of Saddam Hussein in Iraq. While the press release angered some of the persons named by HRW, the execution of Saddam did suggest that international justice may after all have some teeth. This spurred the establishment of an ad hoc parliamentary committee that drafted the first version of the amnesty bill that in the name of national reconciliation sought to grant blanket amnesty for all those involved in the last three decades of conflict in Afghanistan. After a revision that included amending the bill so that it opens up for possible private prosecutions, it was finally approved by the parliament and the President in March 2007. However, as noted above, the bill has not – until now – been published in the official gazette.
An Overview of the Law
Why fuss about this law? Its stated aim is positive enough. According to article 1, it is supposed to strengthen “reconciliation and national stability, ensuring the supreme interests of the country, ending rivalries and building confidence among the belligerent parties”. Unfortunately, the method for reconciliation is blanket amnesty for all those involved in past and present Afghan conflicts.
The extent of the amnesty is outlined in article 3 (paras 1-2).
Art. 3, para. 1 provides the outline of a blanket amnesty stating that “[a]ll political factions and hostile parties who were involved in a way or another in hostilities before establishing of the Interim Administration shall be included in the reconciliation and general amnesty program”. That is, the law grants amnesty for all groups and individuals without focusing on specific crimes. While there is no general prohibition against amnesties in international law, international treaty law, including some of the conventions to which Afghanistan is a state party, oblige states to prosecute certain crimes, including war crimes torture and genocide. Customary international law is also considered to prohibit amnesties for most serious international crimes, including serious human rights violations, war crimes and crimes against humanity. It is worth noting that this customary international law norm has partly emerged as blanket amnesties have shown to be a very poor foundation for stability and sustainable peace.
Art. 3, para. 2 extends the amnesty to those “who are still in opposition of the Islamic Republic of Afghanistan” (i.e., the current insurgency) if they “join the process of national reconciliation” and “respect the Constitution and other laws”. This paragraph is particularly interesting as it actually opens up the possibility for amnesty for crimes not yet committed, which may be seen as a bit of a legal anomaly, and as it is in direct conflict with Afghanistan’s obligations under the under the Statute of the International Criminal Court, which is effective for crimes committed 2003 onwards.
Art. 4, para. 1 includes another exception from the general amnesty: No amnesty is granted for persons currently “under prosecution for crimes against internal and external security of the country”. However, art. 4, para. 2 opens up for possible future amnesties based on the recommendations of the Commission for the Consolidation of Peace.
Art. 5 (just as above-mentioned art. 3, para. 3) situates the law firmly in the context of the ongoing discussion about reconciliation. Art. 5 calls for the establishment of an extraordinary commission by the National Assembly in cooperation with the Commission for the Consolidation of Peace that is to “prepare the ground” for “ending the violence and distrust between the government and armed oppositions factions and to strengthen stability and national reconciliation”.
The Amnesty Law was, according to its introduction, adopted in order to end war and bloodshed, strengthen national unity and build trust among all segments of society. Measures that contribute to ending bloodshed and building trust would certainly be welcome in Afghanistan, but blanket amnesties are not the way to go.
As noted above, the legality of the law can be challenged based on Afghanistan’s commitments under international treaty law and customary international law. Unfortunately legal arguments carry very little weight in Afghanistan.
The law can also be viewed in the light of the by now well established political strategy to promote peace before justice in Afghanistan – or rather to promote any stability at the expense of peace and justice. This seems to have been the preferred political strategy of the Afghan elites and its international partners for the past decade – but it is a strategy that has failed.
Consequently, the Amnesty Law is not only a breach of Afghanistan’s commitments under international law; it also turns a failed political strategy into law.
Annex: The “Amnesty Law” (unofficial English translation)
source: Official Gazette, publishing date: 13 Qaus 1387 Serial No: (965)
National Reconciliation, General Amnesty, and National Stability Law
Whereas jihad, resistance and the rightful struggles of our people to defend the religion and country is the splendid achievement in the history of the country and are considered as our distinguished national glories, and whereas the realization of national reconciliation policy and ending of war and bloodshed, strengthening of national unity and building of trust among all segments of society is crucial in this juncture of time, therefore the following is approved to achieve the above:
This law is adopted for the purpose of strengthening the reconciliation and national stability, ensuring the supreme interests of the country, ending rivalries and building confidence among the belligerent parties, based on their immunity in case of adherence to the Constitution and other enforced laws of the country.
To strengthen peace, stability and ending the war, the National Parliament of Afghanistan calls on all armed groups in opposition to the government of Islamic Republic of Afghanistan to join the process of strengthening the stability and national reconciliation of Afghanistan and participate in strengthening the system and reconstruction of the country.
(1) All political factions and hostile parties who were involved in a way or another in hostilities before establishing of the Interim Administration shall be included in the reconciliation and general amnesty program for the purpose of reconciliation among different segments of society, strengthening of peace and stability and starting of new life in the contemporary political history of Afghanistan, and enjoy all their legal rights and shall not be legally and judicially prosecuted.
(2) Those individuals and groups who are still in opposition to the Islamic Republic of Afghanistan and cease enmity after the enforcement of this resolution and join the process of national reconciliation, and respect the Constitution and other laws and abide them shall enjoy the benefits of this resolution.
(3) The provisions set forth in clause (1) and (2) of this article shall not affect the claims of individuals against individuals based up on Haqullabd (rights of people) and criminal offences in respect of individual crimes.
(1) Those people who are under prosecution due to crimes against internal and external security of the country shall not enjoy the benefits of this law.
(2) Those people who are sentenced to crimes against internal and external security of the country shall be forgiven or their punishment mitigated by separate decrees, according to the situation and based on recommendations and guarantee of the Commission for Consolidation of Peace, in case of they commit, not to resume their activities against the Islamic Republic of Afghanistan.
In order to help end the violence and distrust between the government and armed opposition factions, and to strengthening stability and national reconciliation, an extraordinary commission shall be appointed by the National Assembly to prepare the grounds for their joining the process of strengthening stability and national reconciliation, in cooperation with the Commission for Consolidation of Peace.
This law shall be enforce from the date of endorsement and published in the official gazette.
Sari Kouvo is a Senior Analyst for The Afghanistan Analysts Network – a non-profit, independent policy research organisation – where this article was first published and is reprinted here with permission.