The Intra-Afghan Peace Talks: Warring parties negotiate, victims of war are excluded

Ehsan Qaane

Afghanistan Analysts Network

Facing the past. Mass grave on Kabul’s Tapa-ye shuhada-ye danayi (Martyrs of Knowledge Hill), a memorial for the 40 students killed in an attack on an education centre nearby in August 2018. The message on one of the placards reads: “Who is representing victims in peace negotiations?” Photo: Hadi Morawej/AHRDOViews on the ongoing peace talks

War victims’ groups in Afghanistan and human rights institutions have long supported the notion of a peace process based on the concept of inclusivity and justice. They argue that inclusion, which would improve prospects for a lasting peace, is an essential right of victims as well as an integral part of any peace talks. Ever since the United States made clear its sole focus was to withdraw through a ‘peace deal,’ and with the Afghan government and the Taleban now starting their own peace talks, calls for a victim-centred peace process have grown. So far, however, there’s little sign that the warring parties are listening.

On the opening day of the intra-Afghan talks, on 12 September, the Afghanistan Independent Human Rights Commission (AIHRC) released a press statement welcoming the start of the talks, which it described as “a unique opportunity to end the war and suffering in the country.” The AIHRC called for “recognition of the expressed wishes of victims” to be “the heart of the deliberations.” (1) Two days later, on 14 September 2020, a symbolic gathering of around 100 survivors and relatives of victims of war was held, at a mass grave for 40 students killed in an attack on the Mawud education centre in Kabul in August 2018. The mass grave is named tapa-ye shuhada-ye danayi (Martyrs of Knowledge Hill) to honour the students who were massacred. The gathering was organised by the National Victims-Centred Peace Network, which released a resolution in which it described the peace talks as a “historic opportunity to achieve a just, victim-centred and sustainable peace” and encouraged the negotiating teams to take the best interests of the nation and victims’ demands into account at the negotiation table (see annex for the full text of the resolution). (2)

Victims’ rights activists have been at pains to remind participants in the peace talks that victims should be recognised as a significant constituency in Afghanistan. The Transitional Justice Coordination Group (TJCG), a coalition of 26 individuals and organisations including victims’ groups, argue that since victims form “one of the largest constituencies in the country,” the talks should reflect that. In a position paper released earlier this year, the group cited the United Nations Assistance Mission in Afghanistan (UNAMA)’s reporting which shows that more than 35,000 civilians have been killed and 66,000 wounded since they began to systematically collate civilian casualties in 2009.

Demands and expectations

The three organisations mentioned above, the National Victims-Centred Peace Network, the AIHRC and the TJCG, have all put forward position papers or recommendations about victims’ representation in the ongoing peace talks. With some differences in the detail, the positions taken by these entities are broadly alike. There are a range of overlapping mechanisms proposed, including direct testimony from victims to parties to the conflict (AIHRC and TJCG), a National Victims’ Consultative Jirga (AIHRC) and a committee representing victims who would be a formal part of the peace talks (Victims’ Network and TJCG).

a) AIHRC’s proposals

In June 2020 the AIHRC published a paper on the inclusion and rights of victims in the peace talks. The paper lays out four mechanisms, two of which relate to victims’ direct participation.

  • Victims’ testimonies: a group of victims “from across the country and of a variety of types of violence” should have the opportunity “to speak directly to the parties about their experience in the conflict.” These victims should be selected “through independent and impartial bodies agreed by the [warring] bodies.”
  • National Victims’ Consultative Jirga and Outreach: a consultative jirga would “discuss issues of victims, justice and reconciliation,” to respond to “initial outcomes” of the peace talks. The assembly should not have decision-making powers. Prior to the jirga the parties to the conflict should engage in outreach with victims, inviting online submissions and consultations, facilitated by civil society/social networks.

In addition to these two proposals, the AIHRC recommended two other means through which victims’ interests could be furthered, through wider civil society inputs, rather than victims per se. First would be a sub-committee which would consult regularly with both sides involved in the negotiations. Second, avenues for written proposals should be shared with the negotiating parties.

b) National Victims-Centred Peace Network’s proposals

The Victims’ Network called on the negotiating teams to create a formal mechanism to directly include victims in the talks in a 14 September resolution:

  • Joint Special Victims’ Committee: this should be created by both parties to the conflict as a key part of the negotiation process “to follow up on the basic demands of victims and their families.” The committee should establish and introduce a “well-defined mechanism of access and communication with victims.”
  • In addition, the Victims’ Network would establish a secretariat which would also communicate with negotiating teams on behalf of members of their network.

c) Transitional Justice Coordination Group’s proposals

TJCG’s paper provides case studies from other countries, including Colombia, to argue that in places where victims have directly participated in talks, a more durable peace has been established. Based on this argument, TJCG proposes the following mechanisms.

  • Representation in all peace institutions: this means victims should be included as members of the negotiating delegations and the High Council for National Reconciliation (HCNR).
  • Technical Committee: this should be established within the HCNR to provide advice to the victims’ representatives in the negotiating delegations.
  • Victims’ testimony: not dissimilar from the AIHRC proposal, the TJCG proposes that victims that have “substantive engagement” with “negotiating delegates and primary conflict actors.” The paper says that victims’ testimony can have a “transformative impact on peace negotiators and victims alike,” citing Columbia as an example where such a process changed views of both victims and conflict actors for those involved and the wider public.

Now that talks have started without these elements in place, some of these proposals may seem less likely to be taken on board. However, the talks are still at a preliminary stage, with many modalities yet to be finalised. Also, as will be discussed later, the government is still working out its own policy on victims’ inclusion.

New terms to bring victims back into the spotlight

Victims of war and other forms of conflict-related have been marginalised for many years as a political force in Afghanistan. In an attempt to re-boot their demands, there has been a noticeable shift in the language being used by victims’ advocates, with ‘victim-centred peace’ and ‘victim-centred justice’ replacing the term ‘transitional justice’ when talking about the inclusion of victims of war in the peace talks. Since 2001, transitional justice was the preferred term for tackling victims’ wishes and dealing with past atrocities, at least among victims’ groups, human rights activists and the media. But in the last two years, discussions among victims’ rights and human rights advocates have brought consensus on alternative terms for transitional justice (the author participated in some of these discussions).

There are two reasons for the shift. Firstly, ‘transitional justice’ – adalat-e enteqali or enteqali adalat in Persian and Pashto – as a term, is not widely understood. In English, its meaning is also not obvious per se, but its wide use means it has come to be understood. Usually, transitional justice is defined as a set of processes and mechanisms, including truth finding, reparations and criminal justice, which ensure there is justice during a transition from war to peace or from an authoritarian to a democratic government. In Dari and Pashto, the two official languages in Afghanistan, the exact translation of ‘transitional’ has given us adalat-e enteqali or enteqali adalat, but enteqal usually refers to a physical movement. Often Afghans assume it refers to physically moving justice from one place to another.

Secondly, the shift to new terms reflects a pragmatic distancing from the negative connotations that transitional justice has gained in Afghanistan. Opponents of transitional justice have deliberately attempted to identify it exclusively with criminal justice, with those who fear being accused as war criminals inciting their followers to stand against taking any action to do with dealing with past wrong after the transition to a post-Taleban administration in 2001.

An apparent conflict between peace and stability on the one hand and justice on the other has been posited as far back as the Bonn Conference in December 2001 with the argument that justice had to be sacrificed to stability. Important players at Bonn, particularly those representing the mujahedin factions, but also the US took this position and it was backed by the United Nations chair of the conference, Lakhdar Brahimi. (3) The conference helped set a course where the interests of political factions and short-term stability were deliberately and explicitly prioritised over justice. (For detail on this, see AAN’s major report on transitional justice from page 14 onwards. 18 years later, there has been no accountability for any war crimes, including mass atrocities. Yet, nor has there been peace. Many have argued that ignoring justice was one factor fermenting instability.

In 2005 the AIHRC released its report “A Call for Justice”, the findings of its national consultation with victims of pre-2001 war crimes. Also in 2005, the Afghan government published its three-year transitional justice “National Action Plan for Peace, Reconciliation, and Justice,” but was unable to implement it in the face of political opposition. Mujahedin leaders from the main civil war factions organised a large gathering in Kabul where they invited their followers and former fighters to rally against the government’s plans. Thousands of people gathered in the Ghazi soccer stadium, where transitional justice was labelled a ‘foreigners’ policy’ against the mujahedin, designed to put them behind bars. This narrative, which ignored the restorative component of transitional justice, has been consistently aired on some of these mujahedin leaders’ private TV channels over many years. Subsequently, the Afghan parliament, with its high proportion of former mujahedin leaders and commanders among its members, approved an ‘amnesty law’ in 2007, which gave a blanket amnesty to those involved in wars before 2001 and a conditional amnesty to those who continued to fight in the post-2001 era if they reconciled with the government. (4)

Reducing transitional justice to only criminal justice has had two implications. Firstly, it shifts focus from the victims to the perpetrators. Holding perpetrators accountable is indeed an essential part of transitional justice, but finding the truth, healing wounds, compensating victims’ losses and bringing institutional reform are also core elements of the process. These components were addressed in the government’s national action plan, but were lost in the noise of the former warlords’ criminal justice narrative. Secondly, it created an unnecessary fear among those who had been involved in the conflict – including low-ranking fighters – that if transitional justice were implemented, they would be put behind bars. To the extent that transitional justice has an accountability component, the focus is generally on command responsibility, rather than fighters, but this was lost.

This narrative helped to divide society between those who believed that the past should be left alone and those who longed for justice. The proponents for justice failed to create a sufficient political and social constituency for their cause, while the opponents succeeded in derailing the implementation of the transitional justice national action plan and control large parts of the victims’ constituency that is divided along political and ethnic lines. This was particularly true under the leadership of the former president, Hamed Karzai, who was significantly influenced by former mujahedin leaders, including several alleged war criminals. When Ashraf Ghani, his successor, was first campaigning for the presidency in 2013, it was hoped that he would distance his administration from people implicated in potential war crimes and publish the AIHRC’s Conflict Mapping Report as he promised during his campaign. However, his selection of General (now Marshall) Abdul Rashid Dostum as Vice President – albeit on condition of a half-hearted public apology – swiftly diminished such hopes.

Today, the tendency to equate transitional justice with criminal justice is still a dominant narrative which discourages the warring parties from involving victims in the ongoing peace talks. Human rights institutions and victims’ groups are hoping that by using ‘victim-centred peace’ and ‘victim-centred justice’ as alternative terms they can bring back the focus to victims’ needs and their potential to make a positive contribution to peace.

The Afghan government’s position

The Afghan government still seems to be formulating its policy on the inclusion of victims in the intra-Afghan peace talks, within the recently constituted State Ministry of Peace. However, hostility from presidential and vice-presidential offices risks undermining more positive intentions at lower levels of government.

In a blow to victims, President Ghani made perhaps his most clear statement yet against a victim-centred peace process. Speaking at a ceremony in the palace to celebrate International Peace Day on 21 September, Ghani suggested that what he called ‘the Spanish model’ of dealing with its past could be a model for Afghanistan. In Spain, after the death of the fascist dictator General Francisco Franco in 1975, a decision was made not to talk about the previous thirty years in Spain, Ghani said. This ‘pact of forgetting,’ as it became known, culminated in the 1977 Amnesty Law which blocked the investigation of Franco-era crimes, leaving uninvestigated the mass graves of more than 100,000 people. However, the Spanish model remains politically controversial, with successive left-leaning governments providing greater recognition for victims, as well as exhumations of mass graves and the removal of some monuments celebrating Franco. (5) The president’s statement went against the decision of the August 2020 Consultative Loya Jirga that “the government should secure the consent of families of victims of war.”

Ghani argued that “in the contemporary history of Afghanistan, we fought against each other and killed each other but tomorrow we need to accept each other as brothers and sisters.” He added that the past must not destroy our future and “forgiveness” was what was needed, adding that he saw a willingness to forgive in the nation, citing the experience of the June 2018 ceasefire (AAN’s report on the ceasefire here).

In the same peace ceremony, First Vice-President Amrullah Saleh spoke for almost 25 minutes but did not say a word about victims. As a former director of the National Directorate for Security (NDS), an institution repeatedly documented as using torture (see UN reports cited here and AAN dossier on torture here), and a leading proponent of the former anti-Taleban coalition, the United Front (better known as ‘Northern Alliance’), the factions of which have also been accused of war crimes he is not known for his pro-victim stance, nor is he an advocate for the peace process, having bluntly stated that he, personally, is irreconcilable with the Taleban.

The second vice-president, Sarwar Danesh, is more supportive of emphasising human rights in negotiations with the Taleban and has previously pledged that human rights would be respected in any peace process. At the peace ceremony he recited verse nine of the Hujurat chapter of the Quran where it says, “… make peace between them fairly, and do justice. Indeed, God loves the just.” While he did not explain what he meant by a ‘just peace’, he had been speaking about Taleban ignorance of Shia Muslims, so this point appeared addressed to the Taleban, rather than both sides.

Despite these mixed messages at the top of government, there have been modest movements within government in policy terms. The State Ministry for Peace and the Afghan Islamic Republic’s negotiating team both have proposals for the inclusion of victims in the peace process, though their plans seem to be in a very early stage.

On 13 October, the State Minister for Peace, Sayed Sa’adat Mansur Naderi and the chairman of the Afghan Islamic Republic’s negotiation team, Masum Stanekzai, held their first virtual meeting with representatives of war victims. In the meeting, Naderi promised to establish a special committee, consisting of representatives victims, victims’ organisations, the High Council for National Reconciliation, in the ministry to manage victims’ affairs related to the peace talks. Stanekzai said the war victims would be “the central part of the peace talks.” He added that the experience of other countries had revealed that in non-exclusive peace talks, victims were the most vulnerable group.

Prior to this, on 22 September 2020, the State Ministry of Peace hosted a victims’ hearing session in the Presidential Palace (where Ghani had proposed the Spanish model for Afghanistan just a day earlier). The Deputy Minister for Human Rights and Civil Society, Dr Alema, in her inauguration speech, promised that her ministry, in cooperation with ‘relevant organisations’, was establishing “structures and mechanisms” to ensure victims’ participation in the peace process. She insisted that the warring parties “must” listen to the victims of war and make sure that “victims benefit from the [peace] agreement the most.”

Meanwhile, it appears that the Afghan negotiation team has formed a committee representing victims’ rights, though this has not been well publicised. On 16 September 2020, team member Habiba Sarabi, told AAN that she is the chair of the team’s Committee for Human Rights, Women’s Rights, Vulnerable Groups and Victims and that it has a mandate to communicate with victims and relevant civil society organisations to collect their views. Sarabi said that she was in regular contact with the AIHRC, the Afghanistan Human Rights and Democracy Organisation and the Afghanistan Mechanism for Inclusive Peace, which is an civil society organisations joint initiative. The day she spoke to AAN, she had held her first official round of talks with these organisations. Shaharzad Akbar, the Chairwoman of AIHRC, confirmed having been in contact with Sarabi, told AAN on 9 October 2020 that she was glad, at least, that the Afghan government negotiating team had created such a committee because human rights organisations like AIHRC now had an ‘address’ to give their recommendations to. She hoped the Taleban would do the same. Previously, after President Ghani presented his peace plan the Geneva Conference on Afghanistan in 2018, the government retrospectively added a Victims’ Affairs Committee to the plan (read AAN’s analysis on the 2018 peace plan here). However, this committee never came into being (nor did nine others also mentioned in the peace plan as bodies to address various segments of the Afghan society). Instead, the State Ministry for Peace was established in June 2019. Within the ministry, no department is designated as covering victims’ affairs, though the Department of Programmes is in contact with some victims’ groups.

These developments show that victims have some allies in government, which brings a little hope that the committee and the ministry’s consultations may bring some positive developments for victims. However, there are evident contradictions between these promises of greater inclusion and the stark words and actions of president Ghani, including the prisoner release made under US pressure. Overall, the dominant view within the Ghani administration is that justice will have to wait for peace. (6) These contradictions could be the result of divisions between government factions and the lack of any serious efforts to find a consensus. Or it could suggest a lack of interest from the Afghan government, allowing space only for tokenistic gestures towards inclusion. Alternatively, the Afghan government might be responding to pressure from third parties, like the US in the case of the Taleban prisoners’ release. Some in the government negotiating team believe that the strategy of the government representing victims is bad policy: in a 1TV discussion on the victims’ place in the peace talks, Dr Amin Ahmadi, a member of the government negotiating team, argued that victims and other relevant stakeholders should self-mobilise and act independently from the Afghan government. His argument was that the government’s involvement could politicise victims’ involvement, creating new hurdles for their direct participation in the talks.

The Taleban’s stand

The Taleban have not taken any public position on the inclusion of victims’ representatives in the peace talks, nor have they commented on demands from victims’ groups’ and human rights institutions. They also did not answer AAN’s questions on this subject, which were submitted twice to Muhammad Na’im Wardak, the Taleban’s spokesperson.

However, based on the Taleban agreement with the US (full text here), it could be argued that the Taleban have not taken the victims’ rights seriously. After around 18 months of talks behind closed doors, the Taleban and US signed this agreement in February 2020 to bring a conditional end to their conflict. While the Taleban in its regular incident reports often accuse US troops of killing civilians or committing war crimes, they signed an agreement with the US in which accountability for war crimes or civil remedies for victims of those crimes is not mentioned. As the discussions happened behind closed doors, it is not clear whether justice for victims was a topic ever raised by the Taleban or not, but they have made no public comment on the participation of victims or their representatives in the US-Taleban discussions or Intra-Afghan talks.

It is notable that five victims of unlawful detention and other abuses by the US at Guantanamo are among the Taleban’s representatives in the current peace talks, though their presence relates more to the legitimacy the experience has conferred on them within the movement, rather than informing any policies related to accountability or justice. Taleban positions on Guantánamo over the years have focused only on the release of their own people, not the rights of other Afghans or detainees of other nationalities being illegally detained. In the negotiations to exchange those five prisoners for Seargent Bowe Bergdahl, which was made in 2014 (AAN reporting here), the Taleban actually refused to try to get other non-Taleban detainees out as part of the swap, according to AAN colleague, Kate Clark, who has written extensively on this subject (for example here).

The Taleban negotiating team also includes senior leaders whose potential war crimes are documented; this includes command responsibility for potential war crimes. While the Geneva Conventions encourages warring parties to provide the “broadest possible amnesty” to fighters at the end of hostilities, this does not apply to those who had command responsibility for war crimes and crimes against humanity. (7) This would implicate members of the Taleban senior leadership.

The US position

The US has no diplomatic track record of taking the rights or needs of Afghan victims into account beyond some forms of compensation payments. Rather, it has long made its hostility towards accountability measures in cases of allegations of war crimes clear, with regards to its own forces, but also its Afghan allies. It signed a number of bilateral agreements with the Afghan government to limit investigation of its military personnel by the Afghan government or a third party, starting in 2003 with the Status of Forces Agreement (SOFA) and most recently the Bilateral Security Agreement (BSA) signed in 2014. The BSA declared that the Afghan government could not investigate US forces accused of crimes nor could it hand them over to a third party.

The US claimed it would prosecute any wrongdoers through domestic judicial bodies. However, wrongdoers are rarely put through a judicial process and few have received even received any bureaucratic sanctions, such as loss of pay or being fired. Some, such as the head of Bagram detention centre were promoted after a detainee died after being tortured on his watch. (8) The failure to deal adequately with alleged perpetrators of war crimes the attention of the International Criminal Court, particularly with regards to CIA torture (AAN’s analyses here and here).

In the February 2020 US-Taleban Agreement, like the Taleban, the US did not insist on any accountability for the victims of war crimes allegedly committed by the Taleban. Indeed, it agreed to the release of more than 5,000 Taleban prisoners, convicted in Afghan courts for a variety of crimes including murder. For instance, according to the Afghan government, the mastermind behind the massive May 2017 explosion at the green zone of Kabul, close to the German Embassy, which killed nearly 100 people and injured 350 others, was among them. 105 prisoners were also released despite outstanding complaints by individual plaintiffs’  – maybe victims or their relatives – against them. (9)

Conclusion

There is still time for the Afghan government and Taleban – and the US as a major actor still in the context of the Doha peace talks – to demonstrate to victims of the war that they are seen and heard. A small chink of light has been offered by the State Ministry for Peace and the Afghan government negotiating team’s promises to establish mechanisms to consult with victims. The proposals from human rights organisations for the inclusion of victims in the peace talks provide principles and potential structures that could further elaborate those mechanisms. However, these modest gains stand in contrast to the striking lack of political will among those charged with making peace, the Afghan government, the Taleban and the US. The so far only limited mobilisation and organisation of victims is also a hurdle.

The Afghan government is divided, though its leadership is generally hostile to ideas of accountability for and remembering of the past. President Ghani favours forgiveness – or a “pact of forgetting” that would echo the failed Spanish experiment. This approach is already reflected in the 2007 ‘amnesty law’ and bolstered by the continued political clout of the former leaders of mujahedin groups who were involved in the war before 2001, including Abdullah Abdullah, who chairs the High Council for National Reconciliation, as well both of President Ghani’s vice-presidents. The former mujahidin commanders fear that by opening the door to the past, the crimes of the pre-2001 era would be investigated.

The Taleban have demonstrated no interest in the rights of victims during the peace process, or prior to it, concentrating only on the rights of their own members. They have made clear they expect a blanket amnesty, including for those most responsible for the commission of war crimes and crimes against humanity. In the Taleban’s case, which has some high-ranking figures in their negotiating team, this threat may discourage the Taleban from opening the floor to victims’ representative during the peace talks.

The US has, in practice, demonstrated no desire to push for accountability, either of its own forces or allies. The US made an agreement with the Taleban on prisoner release with no consultation with victims or the Afghan government in a clear indication of its willingness to overlook the demands of the victims as the price to pay to get the Taleban to sign its agreement.

Despite these obstacles, victims and human rights organisations still have avenues ahead. They can support the limited number of political allies in the government by mobilising victims, the media and other sympathetic voices. Efforts to shift the language towards a victim-centred peace may help persuade the government and Taleban leadership that the inclusion of victims does not necessarily mean trials, but raises possibilities of compensation and healing that even their fighters can benefit from. Afghanistan has had many decades of evading past crimes, but president Ghani would do well to learn the real lesson from Spain, which is that you can enforce a silence on victims, but you can never make them forget.

Edited by Rachel Reid, Kate Clark and Thomas Ruttig


(1) The Afghanistan Independent Human Rights Commission (AIHRC) has a long track record of working for war victims’ rights. In 2004, it published a report as a result of a national consultation with war victims to reflect their views on how to deal with pre-2001 war crimes and war criminals, called “A Call for Justice.” The Afghan government then developed a three-year transitional justice national action plan (from 2005-8), which mandated the AIHRC to document war crimes and crimes against humanity perpetrated from 1978 to 2001. The documentation was completed in 2012 and the “Conflict Mapping Report” was shared with Hamid Karzai, the former president, when he was in the office, and then with Ashraf Ghani, the current president. Both men refused to publish it.

(2) The network, with technical and logistical support of Afghanistan Human Rights and Democracy Organisation (AHRDO), has organised four regional gatherings so far, with three more to be completed by mid-October. According to chairperson Hadi Marifat, once these regional gatherings are complete, elected representatives of each region will come to Kabul to convene the Victims’ National Assembly to decide on their demands and how to engage with the peace negotiating teams and other relevant actors.

(3) Brahimi, a former foreign minister of Algeria, cited Chile as an example of justice being sacrificed for peace while giving South Africa as an example of accountability being jettisoned in favour of a truth and reconciliation process. See “Transcript of the Press Conference by the SRSG for Afghanistan, Lakhdar Brahimi,” 27 August 2002.

(4) For more detail on these events, see AAN’s 2013 report on transitional justice in Afghanistan “Tell Us How This Ends: Discussing Transitional Justice.”

(5) General Franco ruled Spain from 1939 to 1975. The ‘pact of forgetting” was hailed by the strong conservative forces in the country, some of them with roots in the Francoist movement, and originally also the socialist party (PSOE), as a necessity to allow the country to transition to democracy. Others decried the policy, with divisions on the issue and in society continuing. After the 30 years had elapsed in 2007, a Historical Memory Law was passed by the then socialist government which went some way towards recognising calls from victims for the exhumation of mass graves and removal of public symbols commemorating Franco, though it was not fully implemented. In September 2020, a new bill was introduced, the Democratic Memory Law, which among other things, makes the state responsible for identifying victims buried in mass graves (see media reports herehere and here and this report of a human rights organisation).

(6) The Afghan government sought to block efforts of the International Criminal Court (ICC) to open an investigation in Afghanistan, trying to shield itself by taking small administrative steps towards addressing war crimes, such as creating a War Crimes Unit in the Office of the Attorney General. However, it has failed to hold any senior officials accountable for the potential crimes of interest to the ICC (mostly torture and extra-judicial killings on the part of the Afghan government). For more see this Human Rights Watch report

(7) Article 6(5) of Additional Protocol II to the Geneva Conventions: “At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.”

(8) There has been no prosecution of anyone involved in the death of Gul Rahman in Bagram in 2002 who froze to death on the bare concrete floor of a cell in CIA custody after interrogators ordered his clothes removed because he was being “uncooperative.” A CIA review listed contributing factors leading to his death: “dehydration, lack of food, and immobility due to ‘short chaining’ [ie being held on a short chain]. ”His case was referred to the US Justice Department. It decided not to bring charges and, in 2012, the US Attorney General prosecutors announced that the investigation would be closed because “the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt” (see here and here). The 2014 US Senate report into the CIA’s use of torture detailed how, in March 2003, “just four months after the death of Gul Rahman, the CIA Station in Country recommended that [redacted] CIA officer receive a “cash award” of $2,500 for his “consistently superior work.” The manger of the detention side stayed in position and “was formally certified as a CIA interrogator in April 2003 after the practical portion of his training requirement was waived because of his past experience with interrogations” at the site.

(9) After protests from French and Australian governments, six prisoners involved in murdering of French and Australian soldiers in Afghanistan were not released, but moved to Qatar to be kept under house arrest (read media report here). For AAN’s legal analyses on the prisoners swap see here and here.


ANNEX 

The National Victim-Centred Network’s resolution which was presented on 14 September 2020.

The entire peace process must be victim-centered, just and aimed at healing the wounds of victims of war and avoiding future recurrence of violence and crime.”

Resolution

Conference of War Victims’ families and relatives on the start of Intra-Afghan Peace Talks 

Decades of devastating and brutal war have claimed countless victims among the oppressed people of Afghanistan, largely among the civilian population, with women and children often the primary targets; people have paid the irreparable human, material and spiritual price of war with their lives, properties, rights and interests.

Now that “negotiations and peace talks between Afghans” has started, we, the families and relatives of the victims of war and violence, call for our active participation in this process, so that our voices are heard and our concerns are taken into account in all its aspects and reflected in the final agreements. We call on all negotiating parties to recognize the active participation of victims in the negotiation process as one of the main pillars of sustainable peace, and do not allow the negotiation process lead to the re-victimization of war victims.

According to the Islamic and international humanitarian rights, civilians, women, children, public property, infrastructures, civil property, the sick and those who surrender in battle are considered absolutely safe, and any assault on them is considered a “war crime”. The comparative experience of the countries involved in the conflict shows that a thorough handling of and accountability for violations committed during war and conflict is one of the inviolable principles of permanent peace that ensures the irreversibility of wars and conflict. Without a reasonable and transparent mechanism to deal with conflict-related crimes and violations, we could face fragile peace in the most optimistic scenario, and in the worst case, civil conflicts would return with greater intensity. War crimes can be dealt with legally, judicially and in accordance with international human rights instruments and national laws. The perpetrators of these crimes should be held accountable and their sentence cannot be suspended and not can it be subject to statutes of limitation [the time after which a crime cannot be tried in court].

We believe that peace cannot be realistic and sustainable without respect for human rights, justice and equality and ending of culture of impunity and violence. The essential precondition for the implementation of human rights and justice in the peace process is to allow active and meaningful participation of war victims in the peace negotiation process and to establish a mechanism to address the rights and rational demands of the victims.

Victims of human rights violations, in addition to the enjoyment of human rights enshrined in the Universal Declaration of Human Rights and other national and international instruments must have effective, equal and non-discriminatory access to justice and to the competent judicial institutions that uphold their human rights. Damage to victims should be compensated in a rational, equitable and timely manner, opportunities should be provided for rehabilitation and, eventually, it should be ensured that their rights are not violated again.

Peace is not just an absence of war and temporary ceasefire, but a situation in which all citizens enjoy their human rights without discrimination, have access to justice and live a dignified, peaceful and non-violent life.

Our basic requests, as families and relatives of war victims from the ongoing peace process, are as follows

  1. Our first demand from the parties to the intra-Afghan peace talks is “A permanent, countrywide ceasefire” to prevent the killing of more civilians.
  2. The Parties shall concentrate on the country’s best interests and Afghanistan’s suffering people and victims, and strive to make good use of this historic opportunity to achieve a just, victim-centered and sustainable peace in which the Afghan people’s human rights and civilian rights are guaranteed.
  3. Negotiations should provide victims with access to justice, truth, and compensation for material and spiritual harms, and should ensure that such disasters do not happen again. Addressing the past and the rights of victims should be an integral part of the peace process agenda. 
  • We call on the negotiating teams of the Islamic Republic of Afghanistan and the Taliban to establish a joint special committee to follow up on the basic demands of the victims and their families as soon as possible, and this structure is to be a key part of the negotiation process mechanism.
  • set up a Victim-Centered Peace Working Group to work in a focused and organized way with negotiating groups on both sides and hold talks with the Joint Special Committee for Victims’ Affairs and other relevant groups and committees.
  • assist in the systematic handling of the victims’ basic demands and ensure a permanent and durable peace.

Families and relatives of Afghanistan war victims

September 14, 2020

 

The Intra-Afghan Peace Talks: Warring parties negotiate, victims of war are excluded