British newspapers including The Guardian recently reported that a controversial amnesty law, approved by Afghanistan parliament, is being brought into force without having been announced in the weeks leading up to the London Conference on Afghanistan. The amnesty precludes prosecution for war crimes committed in conflicts during previous decades.

The amnesty law, under the title of the “national peace and reconciliation charter”, was shelved for almost two years after being passed by a small majority in January 2007 by both the Afghan house of representatives and the senate. Although Afghan President Hamid Karzai was reported to have approved the law in March 2007, hailing it as “Parliament’s initiative for strengthening peace in Afghanistan”, the fate of the law remained unclear until recently, with no reference to it in the Afghan Law Gazette.

In Afghanistan, publicising the document in the publicly available Law Gazette is typically a prerequisite to the enforcement of any law. However, this particular volume of The Afghan Law Gazette is not yet accessible to public; another unusual step in Afghanistan.

Responding to Human Rights Watch's controversial 2006 report that had once again accused the Mujahedin leaders of war crimes, the amnesty law was designed to protect these still powerful figures from trial. Thus, the very first article of this 12-point charter calls for respect of “Jihad, resistance and the righteous struggles” of the Afghan people and says: “The Soldiers [of Jihad and resistance] must be valued and treated appropriately in the framework of the Islamic Republic of Afghanistan and be protected from any type of bother.”

The third article refers explicitely to the Human Rights report, stating, “The inaccurate reports of Human Rights Watch, published with regard to the Jihadi leaders and Afghan national characters are originated from suspicious intentions and thus Afghanistan National Shura [Parliament] announces them as baseless.”

The fourth article states that all armed insurgents, by joining the “national recounciliation process” will enjoy impunity. The law emphasizes that “no political group is excluded from this charter”.

Accordingly, the document is considered by many legal experts as contradicting the international conventions that Afghanistan has ratified. Amnesty International has urged President Hamid Karzai and the Afghan parliament to immediately suspend this controversial piece of legislation. Amnesty International and other human rights organisations, including the Afghanistan Independent Human Rights Commission (AIHRC), have criticised this attempt to provide legal impunity to perpetrators of human rights violations, including the Taliban.

South African Reconciliation Experience

The Afghan amnesty law refers to similar processes in other post-conflict states, particularly the South African reconciliation process which is considered to be a relatively successful programme.

In South Africa the Truth and Reconciliation Commission (TRC) was a court-like body that was formed after the abolition of apartheid. Witnesses who were identified as victims of gross human rights violations were invited to give statements about their experiences, and some were invited to public hearings. Perpetrators of violence could also give testimony and request amnesty from both civil and criminal prosecution.

The condition of giving amnesty to the perpetrators was their admission to the crimes they had committed under political (and not personal) motivations. Rather than retribution, the objective was to document and publicise the crimes and atrocities that had occurred during apartheid. In addition, the commission gave compensation to the victims in the name of restorative justice. 

The Afghan amnesty law, by contrast, makes no mention of the suffering of Afghan people who were subjected to frequent violations of their human rights during the past two and half decades. Nor does it speak of any aspiration to see justice for those who lost their beloveds in the atrocities perpetrated by different Mujahedin groups as well as the Taliban and other regimes. Instead it asks these victims to look upon the Mujahedin as their national heroes and to never question their deeds.

Brad Adams, the Asia director of Human Rights Watch, told The Guardian that the law was a "total abdication of the state's responsibility to investigate and prosecute crimes". He added that although the law only protects offenders from prosecution by the state, it is unlikely that individuals would pursue private cases "in the current context of impunity and the very real fears of reprisal".

Another incentive for the Taliban?

President Karzai’s decision to enforce the law is related to the recent reconciliation plans to persuade the Taliban to lay down arms; efforts that the Taliban have already rejected as “futile” and “farcical”.

Karzai appears to be surrendering the right to justice in a political gamble endorsed by a naïve international community. Afghans are concerned that neither the recent peace plans nor the implementation of the amnesty law can persuade the Taliban to end their fight.  In contrast, implementing the amnesty law has the potential to secure greater support for the Taliban at the local level.

Karzai and his team must be reminded that back in 1994, the then tiny Taliban led by Mullah Omar won the support of locals when they rioted against a local warlord in Kandahar. Almost nine years after their misrule was ended, locals in many villages prefer the Taliban because they are sickened by the high level of corruption, failed judicial systems and widespread impunity that local public officials are granted. 

President Karzai’s decisions seem to be illogical. Many Afghans are puzzled as to why Karzai and his team believe they can buy off the Taliban at a time when NATO commanders themselves admit that the insurgents are at the peak of their strength.

Although the insurgents know that they cannot win the battle through conventional military advances, they are well aware of the effectiveness of their ongoing war of attrition. They are also aware that public support for sending forces to Afghanistan is plummeting among ISAF partners and that the major powers are deliberating on a swift exit strategy.

Moreover, the Taliban will not compromise their existence by accepting peace offers. From the Taliban's perspective, the government’s conditions for talks – laying down arms and accepting the very same Afghan Constitution they consider un-Islamic and fight to change – are tantamount to surrender.

Desperate measures

Furthermore, implementing the amnesty law legalizes the culture of impunity, shields former warlords against any criticism, ignores the voices raised by both international and national organizations on human rights conditions and justice in the country and disappoints more Afghans who hoped that they would, one day, witness the rule of law in their war-torn country.

Desperate measures to bring peace and stability will result in nothing more than what we Afghans call “a nose made of dough”, one that only fills an ugly gap, but is useless for smelling and breathing.