Setting the Right Precedent: Victim-Centred Justice in Afghanistan

[Kobra Moradi is a contributor to the ICL Media Review and is currently completing her Master’s degree in International Law and Diplomacy at the Australian National University.]

Afghanistan is currently at a critical political juncture as it attempts to transition from a state of war to a state of peace. As constituents most affected by the war, victims have a right to have their voices heard and needs addressed. This requires taking a victim-centric approach to the transition.  

Recent victimisation  

Since 1^st of May, the level of violence in Afghanistan increased rapidly as the Taliban intensified its military campaign to capture more territory. This is having a severe impact on an already scarred population caught in clashes between government forces and the Taliban. Multiple sources including the Afghanistan Independent Human Rights Commission (“AIHRC”), Human Rights Watch (“HRW”), and the UN Assistance Mission in Afghanistan recently reported of widespread violations of international humanitarian law, including enforced disappearances, summary execution, forced displacement, and deliberate attacks against civilians and civilian objects. According to HRW, “Taliban forces advancing in Ghazni, Kandahar, and other Afghan provinces have summarily executed detained soldiers, police, and civilians with alleged ties to the Afghan government.”

The indirect consequences of the ongoing violence add to the suffering of Afghans. The Taliban is reimposing its repressive policies in captured areas, including banning girls’ education, restricting women’s freedom of movement, and prescribing extreme penalties (e.g. public beating). There is evidence of the Taliban destroying administrative buildings and civilian property, including schools, houses, and farms. Since January 2021, an estimated 270,000 Afghans have been newly displaced. Almost half of the population is currently in need of urgent humanitarian assistance. These secondary effects of war is neglected in Afghanistan’s transitional justice (“TJ”) debate.

The recent victimisation is only one part of the litany of crimes and losses that Afghans have suffered at different stages of the conflict. All warring parties have engaged in this victimisation and none have yet been brought to justice. The political narrative of the past and present has been shaped and controlled by the political elite, while silencing the voice of victims.

Victims in Transitional Justice

Transitional justice refers to “the ways countries emerging from periods of conflict and repression address large-scale or systematic human rights violations […]”. As human rights violations predominantly affect victims and their families, they must be made the focus of TJ processes. This does not only mean honouring victims’ memories and acknowledging their suffering, but also recognising their voice and agency, as well as enabling their meaningful participation in the design, operation and implementation of TJ mechanisms. The failure to put victims at the centre of TJ results in ignoring rather than addressing past violations, which is the case in Afghanistan.  

Transitional justice in Afghanistan

TJ in Afghanistan is far from victim-centred. TJ has been defined narrowly to mean criminal justice. TJ opponents have consistently argued that pursuing justice would lead to further insecurity, as alleged perpetrators would retaliate if subjected to prosecution. Therefore, in 2001 during the country’s transition to democracy, the precedent of “peace over justice” was endorsed at the UN-sponsored Bonn Agreement. Accordingly, a paragraph in the draft Agreement preventing amnesty for wartime crimes was removed. Even, the UN Special Envoy for Afghanistan, Lakhdar Brahimi, argued that one could either have peace or justice.

Since Bonn, the narrative of peace over justice has dominated Afghanistan’s TJ process. The process has been perpetrator-centric: focusing on removing the threat of prosecution for perpetrators in exchange for short-term peace. Victims have been ignored and denied any access to justice. The following exemplify how this has manifested:

• Both President Hamid Karzai and Ashraf Ghani prevented the publication of AIHRC’s Conflict-Mapping report, which documents crimes from 1978 to 2001, on the grounds that it would increase insecurity as named perpetrators would retaliate. This protects perpetrators while denying victims the right to truth.
• The 2005 Peace, Reconciliation and Justice in Afghanistan Action Plan included key actions on acknowledging people’s grievances, truth-telling, institutional reform, accountability, and reconciliation. The Plan was based on a national consultation by the AIHRC on how Afghans wanted to deal with the past. It was never implemented and completely abandoned by 2009. Once again, people’s views were ignored.
• In 2008, the Afghan Parliament passed the National Reconciliation, General Amnesty and National Stability Law, aiming to build trust among belligerent parties and end the war.  The law, however, grants blanket amnesty for crimes committed by all hostile parties before the 2001 interim administration and “those individuals and groups who are still in opposition to the Islamic Republic of Afghanistan.” It effectively provides amnesty for a wide range of crimes without specifying any temporal limitation, arguably forgiving past, present and future crimes. This leaves victims with no hope of seeing their abuser brought to justice.
• In January 2010, the government introduced the Afghanistan Peace and Reconciliation Program (“APRP”) aimed at reconciling and reintegrating insurgencies. This policy focuses on addressing the grievances of insurgents while ignoring those of victims. Burhanuddin Rabbani (deceased), who had a record of human rights violations, served as the chair of the High Peace Council responsible for the APRP’s implementation. A 2016 report by the Afghanistan Research and Evaluation Unit shows that many former Taliban leaders and fighters, accused of committing abuses, were unilaterally reintegrated. There was neither consultation with affected communities nor any grievance redress mechanism made available to them.

In a nutshell, the mantra of peace over justice has empowered the political elite to control TJ from above. Alleged perpetrators have not only been able to escape accountability but also to rise to positions of power in state institutions, including the legislature and judiciary. While Afghans continue to suffer from the consequences of ongoing violence, by holding justice hostage to short-term peace, the country’s elite have promoted their own narrative of forgetting the past and moving on, while institutionalising impunity for past, present and future crimes. The memories, voices, needs, and rights of victims have been suppressed in this process.    

Towards a victim-centred justice in Afghanistan

The practice of “peace over justice” is being applied at the ongoing peace negotiation with the Taliban. The peace agreement signed between the United States and the Taliban on 29 February 2020 conveniently avoids any mention of justice. Both the Taliban and the Afghan government lack the political will to address victims’ needs and rights and have ignored civil society’s calls for a victim-centred peace process.

Last year, President Ashraf Ghani argued to not let the past destroy the future. Instead, he suggested what Afghanistan needs is “forgiveness”. This is highly unrealistic: a nation cannot simply forget and forgive, particularly when its past and present is replete with human rights violations. The problematic narrative of avoiding justice (narrowly defined as criminal punishment) for peace has taken attention away from non-punitive ways of addressing the past, such as acknowledgment of victims’ suffering, truth-telling, memorialisation, and redress. Even “forgetting” and “forgiving” cannot be unilaterally imposed from above and requires the coordination of top-down and bottom-up approaches to address victims’ grievances.

In the past few years, the Afghan civil society has adopted the language of “victim-centred justice” to avoid the negative connotations associated with the term “transitional justice” and move beyond the “peace v justice” narrative.

The terms “victim-centred justice” allow for a broader interpretation of “justice” to include criminal justice and other mechanisms. Giving justice a broad definition is particularly important in a context such as Afghanistan where victimhood is highly complex. Afghans have been victimised under different regimes and suffered from a wide range of crimes. Therefore, “war victims” is a broad category with different experiences and needs. Past and present consultations with victims show that beside trials, victims want peace, acknowledgement of their suffering, truth, reparation, and apology. Some of these needs can be fulfilled through informal bottom-up approaches, without jeopardising peace.

The “Memory Box” by the Afghanistan Human Rights and Democracy Organisation is a great example of victim-centred justice. The initiative allows survivors and victims’ families to participate in remembering those lost and narrate their stories. Families of victims select the belongings of their loved ones – scarves, poems, books, and pictures – to be displayed in a memory box. This acknowledges victims and provides an avenue for their families to express their grief and heal. More importantly, it shows that victims are not merely the passive recipients of help, but they can also be active agents of change and participate in TJ. Therefore, despite the challenges, there are ample opportunities to address some of victims’ needs, particularly through bottom-up initiatives. The Afghan civil society, with assistance from the international community, can play a significant role to increase victims’ access to restorative justice.

At the top-down level, while criminal justice is not acceptable to both sides of the inter-Afghan peace talks, they must not completely avoid “justice” as an agenda. They owe it to the people of Afghanistan, in particular war victims and their families, to do their best to find creative solutions for addressing past and present violations. At minimum, they must ensure the direct participation of victims and survivors in the peace negotiations. The parties must avoid any reference to “amnesty” in any potential peace agreement. If they cannot accept retributive justice, they must consider restorative justice – acknowledgement, apology, memorialisation, truth-telling and other mechanisms – to address the needs of victims. These approaches are practically achievable and is the least the negotiating parties can do for war victims.

Afghanistan’s experience since Bonn shows the importance of a justice framework to avoid impunity and break from the past. This time, Afghans must set the right precedent for the future, one which focuses on victims rather than perpetrators.