By Katherine Iliopoulos
An amnesty law that prevents the prosecution of individuals responsible for large-scale human rights abuses has officially become law in Afghanistan.
The law states that all those who were engaged in armed conflict before the formation of the Interim Administration in Afghanistan in December 2001 shall “enjoy all their legal rights and shall not be prosecuted.” Brad Adams of Human Rights Watch said the law is “a disgrace” and “a slap in the face to all the Afghans who suffered for years and years of war crimes and warlordism.”
The National Reconciliation, General Amnesty and National Stability Bill was passed three years ago by the Afghan parliament, which is made up largely of lawmakers who once belonged to armed groups, some of whom have been accused of war crimes.
According to Article 1, the law is supposed to strengthen “reconciliation and national stability, ensuring the supreme interests of the country, ending rivalries and building confidence among the belligerent parties.” It seems, however, to fly in the face of President Karzai’s commitment to pursue justice and fight impunity as expressed in his 2006 Action Plan on Peace, Reconciliation, and Justice. Among other things, this Action Plan focused on the documentation of past violations and the pursuit of truth and reconciliation mechanisms that respect the rights of both victims and alleged perpetrators. The law also appears to contravene international law.
The blanket amnesty not only shields those involved in past violations, but seems to extend a similar reprieve to current armed groups engaging in acts of terrorism and hostility throughout the country, whom the law says will be granted immunity if they agree to reconciliation with the government.
Although President Hamid Karzai had promised not to sign the bill when it was first approved in 2007, a spokesman for Mr. Karzai, Waheed Omer, said on 16 March 2010 that since it was passed by a parliamentary majority and recently published in the official gazette in December, his signature was unnecessary. On other words, the lower house of parliament (Wolesi Jirga) can override presidential objections with a two-thirds majority vote pursuant to Article 94 of the Afghan Constitution. However another provision in the Constitution could theoretically be invoked by Karzai in order to overturn this law. Article 6 obliges the state to create a society “based on social justice, [the] protection of human dignity, [and the] protection of human rights.”
The legality of the amnesty could also be challenged based on Afghanistan’s commitments under international treaty law and customary international law.
While it is hard to say categorically that there is a general prohibition against amnesties in international law, international treaty law – including some of the conventions to which Afghanistan is a state party such as the Geneva Conventions, the Torture Convention, the Genocide Convention – obliges states to prosecute or extradite in relation to certain crimes. Afghanistan is also a party to the Convention on the Non-Applicability of Statutes of Limitations to War Crimes and Crimes Against Humanity (1983), which specifically bars State Parties from enacting legislation that provides for statutory or other limitations to the prosecution and punishment for crimes against humanity and war crimes and requires them to abolish any such measures which have been put in place (Article IV). The amnesty law appears to breach all of these obligations.
A reference to customary international law in the context of amnesties is particularly important for crimes which are not included in treaties, such as crimes against humanity and war crimes in internal armed conflicts. There is no clear answer as to whether customary international law generally prohibits amnesties for serious crimes. However, according to scholars including Anthony Cassese, despite some evidence of state practice to the contrary, there is a gradual evolution of a customary prohibition of amnesty for serious crimes. Cassese argues that States’ general obligation to uphold fundamental human rights is incompatible with impunity or blanket amnesties for serious international crimes.
There is a growing consensus among states and the United Nations that amnesties for international crimes are illegal. Principle 24 (a) of the UN Commission on Human Rights’ ‘Principles For The Protection And Promotion Of Human Rights Through Action To Combat Impunity’ says that “Even when intended to establish conditions conducive to a peace agreement or to foster national reconciliation, amnesty and other measures of clemency shall be kept within the following bounds: the perpetrators of serious crimes under international law may not benefit from such measures until such time as the … perpetrators have been prosecuted before a court with jurisdiction.”
Moreover, the UN Secretary General in his report on the establishment of the Special Court for Sierra Leone of October 2000 reiterated that: “the UN has consistently maintained the position that amnesty cannot be granted in respect of international crimes, such as genocide, crimes against humanity or other serious violations of international humanitarian law.” The Trial Chamber of the International Criminal Tribunal for Former Yugoslavia (ICTY) ruled in the case Prosecutor v. Furundzija on 10 December 1998 that amnesties for torture were prohibited under international law (paragraph 155).
Supporters of the amnesty law say that allowing prosecutions would risk another civil war, and that in any case, it still allows individuals to bring criminal claims against perpetrators. However, as mentioned above, international law requires states to investigate and prosecute serious crimes and human rights violations, obligations that cannot be transferred to individuals. Further, Human Rights Watch reports that access to justice for individuals is severely limited in Afghanistan, where the judicial system is almost dysfunctional, corruption is widespread, and there is no witness protection system.
Any attempt to extend the amnesty to cover recent or current fighting would be limited by the role of the International Criminal Court, to which Afghanistan has been a party since it ratified the Rome Statute on February 10, 2003. This means that the ICC has jurisdiction over war crimes and crimes against humanity committed on its territory after that date– whether by Afghan or international forces. A domestic amnesty would not affect the ICC’s power to prosecute an individual suspected of international crimes. It was reported in September that the Office of the Prosecutor of the International Criminal Court has started gathering information on alleged war crimes in Afghanistan.
Conflict has raged in Afghanistan since 1978, when the Marxist-Leninist People’s Democratic Party of Afghanistan (PDPA) staged a coup against then-President Mohammed Daoud Khan. The Soviet Union invaded the following year, installing a puppet regime that held power until 1992. Four years of chaos were followed by the rise to power of the Taliban, who controlled Kabul and much of the country until they were deposed following the US attack in 2001. War crimes including the massacre of tens of thousands of Afghans, widespread torture and indiscriminate bombing of residential areas were endemic throughout the conflict.
Among the most notorious incidents were the massacre by Uzbek fighters of 3,000 Taliban prisoners in Mazar-i-Sharif in 1997, and the killing of at least 2,000 people, mainly ethnic Hazaras, by the Taliban the following year.
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Discussion Paper on the Legality of Amnesties [PDF]
Afghan Independent Human Rights Commission
February 21, 2010
Casting Shadows: Blood World War Crimes and Crimes against Humanity (1978-2001) [PDF]
The Afghanistan Justice Project, 2005
World Report 2009: Afghanistan
Human Rights Watch