Peace in Afghanistan: Is amnesty a viable option?

Last June 2010, the Afghan "peace" jirga discussed the options towards peacebuilding in Afganistan. It was attended by tribal, political, and religious leaders in the traditional Afghan way of settling pressing issues. One of the manifest options was to open up negotiations with Taliban leadership. However, there are many issues before any negotiations can take place. The key sticking point in the negotiation is the presence of foreign troops in Afghanistan. Another is the crimes committed during the nine-year conflict. Amnesty is emerging as a viable option.

Amnesty is not new in Afghanistan.

In March 2007, a revised amnesty bill was signed into law by President Hamid Karzai amidst concerns on the constitutionality of the new law and breach of international human rights commitments of Afghanistan. With the new law, the legal framework in dealing with the past conflicts is set. What does the new law bring to Afghanistan? Does it bring reconciliation?

The new law grants amnesty for war crimes committed during Afghanistan's decades of conflict, but also recognizes victims' right to seek justice. It grants amnesty to groups, but not on individuals who committed war crimes in the pre-2002 conflicts. Individuals may be prosecuted through the initiative and effort of the victims to file charges. Unfortunately, the state is barred by the new law from prosecuting and going after the war criminals without charges from the victims.

The new law also covers the former ruling regime, the Taliban, combatants who are still actively fighting against and remain to be the biggest threat to the present Afghan government. The Taliban commands and exerts considerable influence on certain areas of Afghanistan. Under a weak and fragile government, any elimination of threat is welcome to preserve the existence of that government. Likewise, the law encourages various armed groups to go back to the fold of law and recognize the Afghan constitution and government. Recognition of these armed groups, particularly of the Taliban, of the Afghan constitution enhances the legitimacy of the government to rule the multi-ethnic Afghanistan. Legislators who approved the bill see the new law as the opportunity for and a step toward reconciliation between and among warring groups including the Taliban. This opportunity can be a platform that will eventually foster unity and stability in Afghanistan.

However, the law was passed without controversy and politicking. Taking the cudgel for the ordinary Afghans who are victims of war crimes, human rights groups and the UN mission in Afghanistan did not think that the new
law would sufficiently address the crimes committed by the warlords and their army. Since the burden of prosecution and proof is upon the victims, the possibility of bringing the case to the courts against the warlords-cum-politicians who weld tremendous clout in Afghan society is almost nil. Unless the victims who will bravely stand up against these warlords are given security and protection by either the state or international community, the wheel of justice for the war crimes in Afghanistan will not start rolling. As we know it, justice is a key ingredient in any reconciliation process to take place. It is doubtful then to think that the new law will bring reconciliation in Afghanistan without bringing justice to the victims.

Moreover, giving amnesty to Taliban would exonerate the regime for harboring and supporting the Al-qaida hierarchy after the 9/11 attack. This would not go well with the US rhetoric on its war on terror. The US-led invasion of Afghanistan was an act of the so called preventive self-defense. With amnesty to Taliban, the present Afghan government is somehow condoning the acts of Taliban-regime, and thus sending a wrong message to the US and its war on terror. That is why the conviction and execution of Saddam Hussein were very essential and important to the US to give legitimacy and justification to its invasion in Iraq and war on terror. Pardoning or giving amnesty to Saddam at the expense of reconciliation and unity in Iraq was out of the question to the US government and its politics. The same can be said in Afghanistan. An amnesty to Taliban would not legitimize the invasion of Afghanistan. And for the domestic politics in the US, both invasions and continued presence of the US troops in Afghanistan and Iraq are losing public support. This may mean a change in the leadership of the White House later this year.

The UN is resoundingly clear of not giving a blanket amnesty to war crimes. The thing is to empower UN to influence the international and local politics that shapes the national policies including amnesty laws that are crafted supposedly to bring reconciliation and unity in a country, but without giving venues for the victims of war crimes to attain justice.