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.

Children commanders in post-conflict scenario

In conflicts, horrendous crimes are committed. Increasingly in recent conflicts, children commanders and soldiers are being used and ubiquitous in combat encounters. Should children be punished for their crimes committed during conflicts?

I would say that crimes, in whatever forms, should be addressed by a justice system that is credible, fair, and transparent. Regardless of age, gender, class, ethnicity and nationality of the offender, s/he should be brought to a "sense" of justice which entails punishment to the offender. Therefore, children are no exception in this case.

In the context of what happened in Sierra Leone, children commanders committed atrocities during its civil war in the 1990s. Should they be punished? Why? How?

Children commanders should be punished because what they did are heinous crimes. I have no reservation in saying this. Crimes are punishable by national and/or international law. How much more are the crimes of these magnitude and gravity! There should be no exception in addressing these horrendous crimes.

However, the case of children commanders in Sierra Leone merits a number of procedural considerations in addressing their crimes. First, they should not be tried along with the adult commanders and soldiers. Second, a specialized court should be created to hear the cases of these young offenders. This specialized court should be impartial and gain the consent and trust of the offenders. Third, the offenders should be represented by a counsel who has an understanding of child psychology and psychiatry. My concern why I propose this consideration is that by revisiting the dreadful memories of the civil war, it may trigger repulsive behaviors or thoughts from the offenders. These behaviors and thoughts may be incriminating and delay the proceedings.

If I were to act as a counsel in defense of the children commanders, I would argue the following; mandate and jurisdiction of the court, command responsibility, diminished culpability, proportionality of the crimes to the children's capability, and appeal to the tendency to be sympathetic to the children.

The first argument, mandate and jurisdiction of the court to handles such cases, assumes that a specialized court was created for the purpose of hearing these cases. I believe that these cases should not be lodged to an
ordinary court in Sierra Leone since any judge could have been a party to or victim of the civil war. The argument is designed to undermine the court and delay the proceedings. Any delay of the resolution of the cases is a gain for the defense. Still, I think it is important to lay out the source of the mandate and jurisdiction of the court. Without a mandate and jurisdiction, the court has no right to try and confer a resolution to the cases.

The second argument, command responsibility, asserts that these children did not act on their own. They were ordered to do those atrocious acts and they performed their duties as children commanders. It should be the leaders who were responsible for these crimes. If these children did not act on the orders, they would be killed. Kill or be killed, I think the children only chose to keep their lives.

The third argument, diminished culpability, invokes the characteristics of children as actors. It is widely known that children make erratic and irrational actions, can be easily manipulated and are driven by impulsive force. Testimonies of being drugged, kidnapped, trained, and brainwashed can bolster this argument.

The fourth argument, proportionality of the crimes to the children's capability, contends that these children could not do such crimes if they were on their right minds. They were not capable of doing those crimes without a threat and manipulation from the adults.

The fifth argument, appeal to the tendency to be sympathetic to children, draws the judge and court to see the damage of the war to these children. They are also victims of the war. They did not start it. They did not have any intention or motive except not to be killed if they defied orders. Plus, they have barely begun living and yet you will deprive them of their future.

In the end, these arguments, in my view, would not stand in the court to successfully defend what the children commanders did. What these arguments can do is to minimize the punishment that they will get. Because they committed crimes, they should be punished.

Again, these are children commanders who ordered and led other children to commit atrocious crimes. Fot the child soldiers who followed orders, this topic will be discussed in other blog entry.

Revisiting Timor Leste Crisis in 2006: Lessons in Peacebuilding

Ten years after its independence through referendum, Timor Leste is very much like a baby learning to walk on governance and politics arena. Just like a baby, it is susceptible and prone to viruses, missteps and diseases. There is an atmosphere of fragility and volatility of its health condition.

True enough in 2006, Timor Leste experienced a political and social crisis. The immediate cause reported was the dismissal of more than 600 troops in the government's military forces when they deserted their posts and refused to go back to barracks. The desertion of the disgruntled soldiers was sparked by the alleged preferential in the military structure of the Lorosae (easterners) over the Loromuno (westerners). The discrimination was based on the role and contribution in the resistance and revolutionary movement during the Indonesian occupation. The Lorosae significantly played more prominent roles in the revolutionary front than the Loromuno. The socially geographical divide, distinction and identity between the west and east, struggle for fairness and equality of treatment, and share of power in the military structure pushed the soldiers to defy orders, and it cost them their job and the fragile and volatile political situation of their young country.

However, the International Crisis Group believed that the root cause of the crisis could be traced back historically to the earlier days of the Revolutionary Front for the Liberation of East Timor (FRETILIN) between its central committee and Xanana Gusmao, then commander of a guerilla army, FALINTIL. The Group also attributed the crisis to the "poorly implemented demobilization of FALINTIL fighters in 2000 and the creation of defence force" which took some fighters in and left some out, unemployed. Thus when the more than 600 soldiers and police took the streets of Dili, they were with unemployed men and gang members.

Acting as the parent of the young country, the UN created various missions to East Timor since 1999. These mission were UNAMET for the preparation, registration and conduct of referendum in 1999, UNTAET for the administration in the transition period in 1999-2002, UNMISET for building and strengthening structures and institutions toward a functional state in 2002-2005, and then during the crisis, UNOTIL for the political mission to support the development of the institutions in 2005-2006. Under the UN mission in 2001, the decision to have a defence force seemed logical since the external threat posed by TNI (Indonesian army) in the neighboring West Timor was ever-present and imposing. Hypothetically at least, a sizeable force could delay any plan of or actual forced occupation or intrusion by the TNI while the international community is pondering whether to intervene militarily or not to stop the TNI. In the anxious minds of Timorese people and historically speaking, this could be a real scenario and they would not want to be caught flat-footed and unprepared. Besides, the defence force would create jobs for the heroes of the revolutionary front. It was a way of acknowledging their efforts and sacrifices coming to fruition. Understandably, the UN was not against job creation and giving due to the heroes of the young country.

However, the presence of TNI in the borders of Timor Leste was misinterpreted as a threat by an insecure young country like East Timor. I think the TNI was there on the borders to secure itself from mass movement of impoverished Timorese people.

Experiences in the disarmament, demobilization and reintegration of former combatants in other post-conflict countries would help forecast and prevent similar crisis. Some examples would be in Sri Lanka, the Philippines, Afghanistan, Congo, just to name a few. I think the mindset of the conflict or war still lingered in the Timorese soldiers at that time. They thought, as long as the TNI were there as a threat within striking distance, the desire to defend the homeland against the others (TNI) ringed vigorously in the hearts and minds of a capable realist, a true revolutionary. They forgot to consider that the revolution was over and that the UN would not allow a repeat of 1975. Anyway, who would argue and go against a strong-willed decision to have a defence force?

Acting as a parent, the UN could only hope for the best to and support its one of the youngest members. And the worst happened but the UN did not abandon its baby. Its neighbors in Association of Southeast Asian Nations (ASEAN) also extended their hands for the efforts to make baby steps in the often violent democratization process.

Extrajudicial Killings in the Philippines and the International Community

Now that the Philippines has its new President, it is time that its government acts on the crimes allegedly committed by the past administration such as extrajudicial killings.

Should the international community embodied by the United Nations act on the extrajudicial killings committed by sovereign states'apparatus like the military? How would it act in conjunction with the incoming new government?

I would categorically say YES for two reasons. First, if the past Philippine government failed to prevent the spate of more than 900 extrajudicial killings since 2001 done on its targeted population, the "international community" like the UN should respond by investigating the killings, recommending policy or structural changes to prevent recurrence and perpetuation of the killings, or as a last resort, sanctioning the Philippines as a member-state. Actually, the UN Special Rapporteur on Summary Execution, Philip Alston, released its final report on the extrajudicial killings in the Philippines on November 27, 2007. The main finding of the report is that the Philippine military is behind killings. After the release of the report, there has been a considerable decrease of extrajudicial killings.

Second, if the failure of the Philippine government does not lie on its inability to implement laws and order but on its conscious inaction or complete disregard of the lives and human rights of the victims, the United States (US), Japan and other states can withhold financial, development, and military aid to the Philippine government to bring the case to its attention and express their disgust and opposition on the Philippine government's inaction or disregard to human rights. This withholding of substantial aid can force the Philippine government to act on the killings and improve its human rights record in the watchful eyes of the international community.

Both reasons I presented here do not take away the responsibility of the Philippine government on its people. It is still the Philippine government that is mainly responsible for the enforcement and protection of human rights in the Philippines. It is not my argument that the international community or any state/s should take over another state or intervene militarily without the consent of the affected state. In the case of the Philippines and extrajudicial killings, the magnitude and scale of the human rights violations would not warrant the use of force by external entities to directly stop the killings. It is unimaginable in this case.

However, there are examples where the use of force was used to stop and prevent further violations of human rights. The cases of Kosovo, Rwanda, Somalia, East Timor, and among others, come easily to my mind. The justification of the use of force on these cases lies in the magnitude and scale of human right violations, the breakdown of states responsible for the protection and implementation of human rights, the dire need for humanitarian assistance of the people, and implementation of international law and Geneva protocols. The Kosovo case is an exception to the breakdown of a state since Serbia, a functional and strong state, asserted its sovereignty and jurisdiction over Kosovo and its people.

I would not argue against these examples on the use of force to stop the impunity of gross human rights violations or crimes. The international community should not watch on the sideline the conduct of these horrendous crimes. It should respond and even intervene to stop the execution of these crimes. What I would argue is the use of force applying a concocted argument to stop the same crimes or human rights violations or weapons of mass destruction or collectively known as terrorism. When the US and its coalition used force and invaded Afghanistan and Iraq, they justified their acts on the basis of the war on terror. According to their rhetoric, they were preventing acts of terrorism. In the same manner that the international community should not simply watch what was happening in Kosovo and alike, the international community should not just watch the use of force of the US and its coalition in Iraq and Afghanistan.

Sadly, I am disappointed in the way the international community has become ambivalent in its response with the use of force or intervention. The international community selects what to, where to, how to, who, and why respond. And its selection is starkly influenced and shaped by the superpowers. Are we then really an international community? Or simply international? What I know about a community is that it supports each other and members are interdependent. In reality, there is dependency of weak states to superpowers. This brings doubt to my mind if the international is really a community, but that will be another paper.

Myanmar and Aid: the Post-Nargis Initiative

On May 2, cyclone Nargis hit Myanmar. It was one of the deadliest natural disasters that ever hit the earth. It is estimated that the destruction claimed more than 100,000 lives and loss of billions of dollars. It also left millions of victims and survivors homeless. It led to the the international community and various aid agencies came rushing to extend assistance to the people of Myanmar. Unfortunately, they have to pas through the ruling military junta who has been in power for decades.

Due to probably the immensity of the destruction and unpreparedness, the military junta was overwhelmed by the extent of devastation and international pressure to allow foreign aid and workers to alleviate the misery of the hundreds of thousands of victims and survivors. The junta was slow in responding to the needs of its own people. It was also reluctant and selective to let the aid and foreign workers enter the country. As more footages and images taken from the hardest-hit areas of the country surfaced, they made international community icluding the aid agencies more determined to pressure the military junta to allow aid and foreign workers into the country.

The US, UK and French ships with aid and helicopters that could bring relief goods and medicines to the hard-to-reach areas. But the military junta sees the ships as military presence of these countries. The junta feels insecure of the entrance of these war ships into its territory. So it did not give a go-signal to these ships to come ashore. However, it did say that any aid was welcome.

The slow, selectiveness and reluctance of the junta caused those against the rule of the junta to politicize the situation. They blamed the junta of the miserable plight of its own people. It was even hinted that the junta might be committing genocide for denying its own people of the aid they desperately needed at that time. The activists and anti-junta jumped on the unfortunate situation and used it to advance their advocacy against the junta. But the junta stood firm on its decision not to receive any aid from the war ships.

In my view, the US, UK and France should understand that the junta is exercising its prerogative to allow or not anyone and anything into its country as a sovereign state. What should have been done by international aid agencies were to ask these warships to unload their goods and give them to accredited organizations that were allowed to operate in the country. This was if they were really sincere of helping the victims of the powerful cyclone. Instead of using the aid for political propaganda and goal, the goods could have been just given to several organizations that were already in the area. I saw there was no need for politicizing the situation because the people were suffering and even dying each day that they withhold those aid.