Afghanistan’s long, complex, and multi-layered conflicts across the decades have taken a heavy toll on Afghan civilians, yet justice and accountability have always been elusive. A once-hopeful effort in the aftermath of the 2001 toppling of the Taliban regime turned out to be no different.
Instead, when a small window of opportunity opened in 2005 to address gross human rights violations over 23 years of war from the 1978 Soviet-backed coup to the 2001 fall of the Taliban, the endeavor was ultimately snuffed out by hegemonic powers making bogus arguments for “peace” and “stability.” This included not only local actors such as warlords and mujahedeen, who feared prosecution and loss of power in the new political landscape, but also, and importantly, the United States and allied countries, who believed the “time was not right” to address the justice demands of war victims and seek accountability for perpetrators.
In many post-conflict contexts, the process of reckoning with a country’s bloody past through a number of judicial and non-judicial mechanisms, often referred to as transitional justice, has become a norm. In Afghanistan, more than 1 million were killed, 1.3 million disabled, and tens of thousands forcibly disappeared from 1978 to 2001. An estimated 241,000 people lost their lives as a result of the War on Terror between 2001 and 2021. Moreover, Afghanistan has one of the largest populations of internally displaced people (IDPs) – more than 3.5 million from conflict and violence alone (not to mention 1.1 million due to disasters), as of December 2020. And the United Nations Refugee Agency, UNHCR, also counts its 2.6 million registered Afghan refugees among the largest such populations in the world. (Even at that, 2.6 million is only the registered figure; there are millions -particularly in Iran and Pakistan, and increasingly Turkey, who are not registered. According to the former Afghanistan Ministry of Refugees and Repatriation, registered and non-registered Afghans outside the country numbered 6 million as of 2018.)
A `Call for Justice’
In 2005, the Afghanistan Independent Human Rights Commission (AIHRC), established in the December 2001 Bonn Agreement that outlined a transitional government and new institutions after the fall of the Taliban, conducted a national consultation with 6,000 Afghans. The aim was to collect public input in preparation for “a national strategy for transitional justice and for addressing the abuses of the past.” The result was the publication of a document aptly titled “A Call for Justice.” The commission found that 69 percent of those interviewed identified themselves or immediate family members as direct victims of human rights violations in the previous 20 years, 45 percent wanted immediate accountability in the form of trials, and 76.4 percent believed bringing war criminals to justice would “increase stability and bring security.” A majority of respondents (61 percent) rejected the idea of offering amnesty in exchange for confessions.
Considering such high demand among Afghans for justice and accountability, the report was instrumental, among other factors, in setting the stage for the next step, the drafting of an “Action Plan for Peace, Reconciliation and Justice” (the Action Plan) by the President’s Office, the AIHRC and the U.N. Assistance Mission to Afghanistan (UNAMA). The 2005 Action Plan identified five key components of justice and reconciliation for Afghanistan: truth-seeking (especially establishing a record of abuses), symbolic measures (such as memorials or days of remembrance), accountability mechanisms involving vetting procedures for public office, institutional reform, and reconciliation. The Action Plan again emphatically rejected amnesty provisions, stating that neither Islam nor international law allows amnesty for gross violations of human rights, including crimes against humanity.
Nevertheless, the only measures called for in the Action Plan that were actually implemented before it expired in March 2009 were a few that were deemed to be less controversial, including, for example, the establishment of a memorial site in Badakhshan or naming Dec. 10, International Human Rights Day, as victims’ day in Afghanistan. This failure to adopt any of the more substantive mechanisms – such as the publication of the 1978-2001 conflict mapping report completed by the AIHRC or vetting of war criminals from public office – was due mainly to power dynamics within Afghanistan and among external forces.
Reinvigorating the Warlords
Internally, elements within the Afghan government and Parliament were fiercely opposed to any significant transitional justice mechanisms. After all, many of those in the government and Parliament were former mujahedeen and warlords accused of committing serious human rights violations during the civil war in the 1990s. Any transitional justice measure, therefore, might have targeted them directly or would have jeopardized their political, social, and economic interests, depending on the form of justice delivered. Instead, in March 2007, the Parliament passed the “National Reconciliation, General Amnesty and National Stability Law” (the Amnesty Law) that ensured a blanket amnesty for all perpetrators of human rights abuses of the past regimes, exactly what the majority of 6,000 Afghans interviewed in the consultation had opposed. Thus, impunity turned into law.
Externally, the U.S.-led coalition forces prioritized their perceived immediate geopolitical interests over justice. In pursuing their military conflict with al-Qaeda and the Taliban, the coalition repeatedly entered nominal partnerships with the very armed factions – often bundled together under the umbrella term of “warlords” – who had committed the atrocities in the past and continued to do so under the eyes of the coalition. But these warlords persuaded the coalition that they were opposed to the Taliban (though some routinely made deals with them, too), and the international community also believed that coopting some of them to work within the new system could put their influence to productive use while defusing their interest in making trouble. So the United States and its allies backed them militarily, politically, and financially.
In effect, the United States reinvigorated warlords who had been militarily defeated and politically relegated to obscurity under the Taliban. Some factional commanders even anticipated disarmament after the Bonn conference; instead, they became entrenched in the new power structure “due to US pressure to include them,” as Patricia Gossman and Sari Kouvo wrote in a report for the Afghanistan Analysts Network. And Rama Mani wrote in 2003 for the Kabul-based Afghanistan Research and Evaluation Unit that there was an implicit agreement within elite political circles of both national and international players that it was “not the right time” to tackle transitional justice. Thus, the human rights records of these ostensible partners did not matter as long as they served U.S. and international interests.
As history has shown, unless the demands of war victims for justice are addressed and some measures are undertaken to reckon with the past, peace and stability cannot prevail in any country. Afghanistan is a case in point today. After 20 years and the expenditure of trillions of dollars on a military campaign and patchy work toward state building and democracy, the country has neither justice nor peace.