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After almost three decades of war involving communists, Russians, mujahideen, Taliban, and most recently Coalition forces and NATO, many Afghans are desperate for the rule of law and justice measures. Although Afghan and international decision-makers have heatedly debated transitional justice issues, and despite strong public support for dealing with the past, implementation of transitional justice mechanisms is lacking.

Since early 2002 the ICTJ has sought to partner with the Afghan Independent Human Rights Commission (AIHRC), the UN Assistance Mission in Afghanistan (UNAMA) and civil society activists and organizations to ensure that accountability for massive human rights violations in Afghanistan is addressed in a constructive and realistic manner. In particular the Center has focused on strengthening the voices of Afghans through consultation; enabling Afghan partners to participate in ICTJ's fellowship programs and conferences on transitional justice; providing technical assistance to partners in Afghanistan; and encouraging a strategic approach to achieving accountability during a time of precarious peace.

In early 2002 ICTJ Senior Associate Paul Seils conducted a mission to Afghanistan and developed a detailed proposal for public consultation to help determine a transitional justice policy for the country. The AIHRC largely incorporated the proposal into its work plan, and Senior Associate Marieke Wierda participated in preparatory trainings for the consultation and a survey in February and November 2003. The ICTJ also assisted in compiling a report, "A Call for Justice" (2005).

Drawing on a broad cross-section of perspectives, the report details the views of more than 6,000 ordinary Afghans from 32 provinces and refugee populations in Iran and Pakistan. The results show that most people in Afghanistan (up to 70 percent) consider themselves direct victims of serious human rights violations that occurred during the conflict. Those consulted believe that crimes have been perpetrated continuously for 23 years and continue today. Respondents displayed a profound lack of trust in the government, public officials, and, to some extent, the international community for failing to do anything about the abuses.

The consultation showed that ordinary people perceive that impunity is entrenched in Afghanistan and that perpetrators have been rewarded with positions of power despite their continued involvement in violations. The report suggests an urgent need to break with the past and recommends a way forward, including an integrated approach to build trust in Afghanistan's institutions and recognize victims' needs and wishes. The ICTJ provided advice on the recommendations, which specify that a transitional justice policy must respect and draw upon Afghanistan's Islamic traditions while taking into account current challenges, including security. The consultation showed strong public support for prosecutions and removing war criminals from positions of power.

The AIHRC conducted the national consultation alongside several international transitional-justice initiatives that focused on documenting human rights violations in Afghanistan. The Office of the High Commissioner for Human Rights commissioned an expert report that relied on preexisting documentation of violations. The report writing and review process, on which the ICTJ advised, took place during 2004. Other documentation initiatives have been carried out by the Afghanistan Justice Project and Human Rights Watch.

In January 2005 the AIHRC presented the report to President Karzai, who endorsed it and committed himself to implementing its recommendations. He ordered the establishment of a task force on transitional justice with representation of the AIHRC, UNAMA, and his own adviser on transitional justice. The task force drafted a transitional justice action plan. Officially known as the Action Plan for Peace, Reconciliation, and Justice in Afghanistan, the plan was presented to foreign governments at a meeting hosted by the Dutch Ministry of Foreign Affairs in The Hague in June 2005; the ICTJ attended in an advisory capacity. The Afghan cabinet endorsed the action plan in December 2005 but it was not launched until December 2006.

The action plan encompasses five measures: (1) according dignity to victims, including through commemoration and the building of memorials; (2) vetting human rights abusers from positions of power and encouraging institutional reform; (3) truth-seeking; (4) reconciliation; and (5) establishing a task force to recommend an additional accountability mechanism. Endorsement of the action plan's implementation was included in the London Compact of 2006.

In mid-December 2005 the Office of the UN High Commissioner for Human Rights held a national conference in Kabul with some 300 participants to discuss approaches to truth, justice, and reconciliation. The ICTJ acted as an adviser in the lead-up to the conference.

Despite the momentous achievement signified by the government's adoption of the action plan, much difficult work remains to effectively implement a strong, comprehensive, and integrated transitional justice program for Afghanistan. One of the main challenges will be to achieve criminal accountability, which remains a controversial issue in Afghanistan, with many powerful sectors lobbying against the plan. In early 2007 the Afghan Parliament passed a resolution that aimed to grant amnesty to all those involved in the conflicts over the past 25 years. Coupled with the declining security situation, the resolution has hampered transitional justice efforts.

The struggle for justice in Afghanistan will be long-term, but the ICTJ has committed itself to keep contributing. Current efforts include a focus on gender issues, including training in December 2007 by senior consultant Yasmin Sooka and ICTJ consultant Fatima Ayub on documenting gender-based violations, advocacy and awareness raising, coordinating ongoing initiatives, building the capacity of civil society, contributing to victim-centered initiatives, encouraging policy-makers to prioritize accountability, and documenting past violations.

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Background

The country suffered decades of conflict, beginning with the Saur Revolution that followed the coup of 1978, continuing with the conflicts waged among mujahideen factions following the Soviet withdrawal, and culminating in the repressive rule of the Taliban. The fall of the Taliban regime and the establishment of a transitional government in late 2001 made it possible to start discussing Afghanistan's brutal history of conflict and human rights abuse.

Following the Taliban's overthrow by the U.S. military in late 2001, a political framework negotiated in Bonn included Northern Alliance factions, supporters of the former king, and technocrats under the leadership of Hamid Karzai. The political process supported by the international community has emphasized political inclusiveness. Rapid progress followed the signing of the Bonn Agreement. An emergency Loya Jirga in June 2002 established a transitional administration, and a constitutional Loya Jirga in 2004 ratified a new constitution drafted in a consultative process. In remarkably peaceful elections held in October 2004, Hamid Karzai was elected president. Parliamentary elections took place in October 2005, but voter turnout was much lower than hoped.

Regrettably, attempts to integrate accountability mechanisms into the political process have had little success. An amnesty clause introduced at Bonn by the Northern Alliance was successfully avoided but has been raised in Afghanistan's Parliament. Since Bonn, efforts to exclude alleged perpetrators from holding public office because of their human rights records have suffered several setbacks, and many of those accused continue to occupy public posts, including parliamentary seats. The political process and transitional justice efforts have proceeded largely on separate tracks since the negotiated agreement, despite vigorous efforts by the Afghan Independent Human Rights Commission (AIHRC) and others to bring them together.

During 2006 the Taliban insurgency gained new vigor, and combat in southern and southeastern Afghanistan increased dramatically. In 2007 security incidents, including attacks by suicide bombers, increased in Kabul. Insecurity prevails in other parts of the country; illegal armed groups have not disarmed; warlords and commanders continue to wield power; and narco-trafficking constitutes at least half of Afghanistan's economy. In part, renewed conflict is seen to result from the government's failure to oversee progress, good governance, and rule of law. Afghanistan continues to face severe challenges in 2008.

(Updated Jan 08)

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