Which one of the following transitional justice mechanisms would be most effective in addressing past human rights abuses in Afghanistan?

Content

I. Introduction

II. Main Part
1. Truth and Reconciliation Commission
2. Courts
a) Local Court
b) International Ad Hoc Court
c) Hybrid Court
d) International Criminal Court
3. Lustration
4. Amnesty
5. Constitution with entrenched Bill of Rights

III. Conclusion

LITERATURE

Desmond Tutu, Truth and Reconciliation Commission of South Africa Report, Vol. 1

No. 34 of 1995: Promotion of National Unity and Reconciliation Act, 1995 (26 July 1995): http://www.polity.org.za/html/govdocs/legislation/1995/act95-034.html

Canadian International Development Agency, Peacebuilding, Truth and Reconciliation Com-missions, Operational Framework: http://www.acdi-cida.gc.ca/INET/IMAGES.NSF/vLUIma-ges/Peacebuilding4/$file/C-Truth-EN.pdf

http://web.amnesty.org/library/index/ENGASA110141999

http://web.amnesty.org/library/index/ENGASA11014 2003

http://web.amnesty.org/library/Index/ENGASA110252003

http://web.amnesty.org/pages/afg-background-eng

http://web.amnesty.org/report2003/afg-summary-eng

http://www.globalpolicy.org/security/issues/sierra/court/2001/analysis.htm.

http://www.hrw.org/backgrounder/asia/afghan-bck1006.htm

http://www.hrw.org/backgrounder/asia/afghanistan/afforeign1220.htm

http://www.hrw.org/backgrounder/asia/afghanistan/afghbk.htm

http://www.hrw.org/backgrounder/g8/g8mem0605.htm

http://www.hrw.org/press/2001/11/fighters1126.htm.

http://www.hrw.org/press/2001/11/PowellAfghanltr1115.htm

http://www.hrw.org/press/2002/01/tokyo_donor.htm

http://www.hrw.org/press/2003/02/afghan020903.htm

http://www.hrw.org/reports/1991/afghanistan2/

http://www.pict-pcti.org/courts/hybrid.html.

I. Introduction

As stated in an article on the Human Rights Watch Homepage, in Afghanistan “are currently no effective mechanisms in place to address past crimes committed during the two decades of war that followed the Soviet-backed coup in 1978”^[1]. But there is a need to examine what happened during this time to achieve justice and reconciliation which are necessary for a brighter future of this state.

This paper will deal with transitional justice mechanisms which come to mind when thinking about a solution for Afghanistan. It will address the pros and cons of a Truth and Reconciliation Commission, a Hybrid Court, an International Ad Hoc Court, a Local Court, the International Criminal Court, Lustration, Amnesty, and a Constitution with entrenched Bill of Rights and come to a conclusion about which of these methods could be favoured for Afghanistan. In order to do so you have to bear in mind the specific circumstances of this country such as the ethnic makeup, the religions and languages of the people.

II. Main Part

1. Truth and Reconciliation Commission (TRC)

A Truth and Reconciliation Commission shall promote national unity and reconciliation. It does so by drawing “as complete a picture as possible of the causes, nature and extent of the gross violations of human rights”^[2]. A TRC acts as a fact-finder and takes care that the past is properly dealt with for the sake of the future. Its aim is to establish a culture of respect for human rights^[3].

A TRC generally has a dual responsibility: On the one hand it has to provide the space within which victims could share the story of their trauma with the nation. Their talk about the past human rights violations and the official acknowledgement of the facts can have a therapeutic value for the victims^[4] by establishing the feeling that they are taken seriously. Hopefully, the process of coping with these crimes can be accelerated as well and the victims’ human dignity can be restored^[5]. On the other hand a TRC has to recognise the importance of the due process of law that ensures the rights of alleged perpetrators^[6]. Hence, the overall aim of a TRC is to bring forward restorative justice. Crimes are seen as conflicts between individuals who harm the community wherefore the victims, the offenders and the community should be active in finding a solution to these conflicts. A TRC therefore tries to reconcile the two parties in order to regain peace and make life side by side possible again.

One disadvantage of a Truth and Reconciliation Commission is that it has a limited mandate which is restricted to a certain time in the past, certain crime scenes and/or certain human rights violations^[7]. A TRC, especially in a country like Afghanistan, will have budgetary problems and will lack the resources of an adequate number of legal personnel to look at any single case wherefore it has to be selective in concern of the cases it wants to deal with^[8]. For all of these reasons a TRC cannot be a permanent institution but is rather a temporary one.

Besides this, the question arises whether legitimate committee members can be found who are impartial and of a high moral integrity^[9]. Since Afghanistan had been in war for 23 years and human rights abuses happened on either side of the civil war parties^[10] it seems to be impossible to find a person who was not – in one way or another – involved in these crimes. What makes things more difficult is the fact that the Afghan people exist of a diverse number of ethnicities (e.g. Pushtun, Tajik, Hazara, Zubek) that speak various languages and belong to different branches of Islam (Sunni and Shia Muslims)^[11].

But maybe a broad acceptance and recognition by the Afghan population will be achieved if the TRC is composed of representatives of all these groups which sum up to a somehow ethnically, religiously and politically neutral committee. If an effort is made to bear this in mind when setting up such an Afghan-TRC, this transitional justice mechanism will get the chance to re-establish national unity and reconciliation.

Obviously, it is necessary as well that everyone – offenders, victims, the community – support this TRC and that the perpetrators can trust its concessions and rely on them. Surely, this is neither easy nor simple but it worked out in South Africa which can be presented as the shiny example of a Truth and Reconciliation Commission. In order to establish an extensive and detailed historical report, the TRC has to make sure that the offenders’ confessions will not be brought against them before a court and that they will only be held criminally responsible for the crimes they did not confess. Problematic is, that this seems to be perpetrator friendly. But it is the only possibility to make the offenders fully disclose their violations of human rights. At least, the offenders have to confess their crimes publicly which is able to shame them and make the victims, the perpetrators and the community recall that no one is beyond the law^[12].

For a TRC in Afghanistan speaks, that this transitional justice mechanism is the right measure to address past crimes when there was a kind of “silent system” in the state which means that the public did not know exactly about the crimes taken place. Where people vanished without a trace, their relatives do not know whether they were taken into custody and still alive or killed by the secret police. Since this also happened on Afghan territory, it is necessary to find out about such disappearances in order to reveal what happened to the victims, and if they are dead, where they lie buried so that the remains can be handed over to the relatives for a proper burial. If this could be done, the relatives would at least be able to say farewell to their beloved.

With these means, a TRC could bring the Afghan people towards reconciliation wherefore this transitional justice mechanism is claimed by Human Rights Watch for Afghanistan^[13].

2. Courts

In contrast to a TRC, every court’s aim is of a retributive and corrective kind. Whether a Hybrid Court, an International Ad Hoc Court, a Local Court or the ICC sit in justice over a perpetrator, the court always wants to restore justice, to punish, to deter.

Especially in relation to grave human rights violations there is a need to hold perpetrators accountable for their crimes^[14] in order to restore social and political stability in a country^[15] and faith in justice and in the rule of law. Without question the prosecutions have to take place before a court that is able to meet international fair trial standards^[16] in order to be accepted throughout the world.

[...]

^[1] http://www.hrw.org/press/2003/02/afghan020903.htm.

^[2] No. 34 of 1995: Promotion of National Unity and Reconciliation Act, 1995 (26 July 1995), Chapter II, Art. 3 (1), 3 (1) (a): http://www.polity.org.za/html/govdocs/legislation/1995/act95-034.html.

^[3] Desmond Tutu, Truth and Reconciliation Commission of South Africa Report, Vol. 1, p. 7, para. 28.

^[4] Canadian International Development Agency, Peacebuilding, Truth and Reconciliation Commissions, Operatio-nal Framework: http://www.acdi-cida.gc.ca/INET/IMAGES.NSF/vLUImages/Peacebuilding4/$file/C-Truth-EN.pdf, p. 2.

^[5] No. 34 of 1995: Promotion of National Unity and Reconciliation Act, 1995 (26 July 1995), Chapter II, Art. 3 (1) (c): http://www.polity.org.za/html/govdocs/legislation/1995/act95-034.html.

^[6] Desmond Tutu, Truth and Reconciliation Commission of South Africa Report, Vol. 1, p. 2, para. 7.

^[7] Canadian International Development Agency, Peacebuilding, Truth and Reconciliation Commissions, Operatio-nal Framework: http://www.acdi-cida.gc.ca/INET/IMAGES.NSF/vLUImages/Peacebuilding4/$file/C-Truth-EN.pdf, p. 1.

^[8] Canadian International Development Agency, Peacebuilding, Truth and Reconciliation Commissions, Operatio-nal Framework: http://www.acdi-cida.gc.ca/INET/IMAGES.NSF/vLUImages/Peacebuilding4/$file/C-Truth-EN.pdf, p. 3.

^[9] Canadian International Development Agency, Peacebuilding, Truth and Reconciliation Commissions, Operatio-nal Framework: http://www.acdi-cida.gc.ca/INET/IMAGES.NSF/vLUImages/Peacebuilding4/$file/C-Truth-EN.pdf, p. 5.

^[10] http://web.amnesty.org/library/index/ENGASA110141999; http://www.hrw.org/backgrounder/asia/afghan-bck1006.htm; http://www.hrw.org/backgrounder/asia/afghanistan/afghbk.htm.

^[11] http://web.amnesty.org/library/index/ENGASA110141999; http://www.hrw.org/backgrounder/asia/afghan-bck1006.htm.

^[12] Canadian International Development Agency, Peacebuilding, Truth and Reconciliation Commissions, Operatio-nal Framework: http://www.acdi-cida.gc.ca/INET/IMAGES.NSF/vLUImages/Peacebuilding4/$file/C-Truth-EN.pdf, p. 2.

^[13] http://www.hrw.org/reports/1991/afghanistan2/.

^[14] http://www.hrw.org/backgrounder/g8/g8mem0605.htm; http://hrw.org/press/2002/01/tokyo_donor.htm; Cana-dian International Development Agency, Peacebuilding, Truth and Reconciliation Commissions, Operational Framework: http://www. acdi-cida.gc.ca/INET/IMAGES.NSF/vLUImages/Peacebuilding4/$file/C-Truth-EN.pdf, p. 8.

^[15] http://hrw.org/press/2002/01/tokyo_donor.htm.

^[16] http://www.hrw.org/backgrounder/asia/afghanistan/afforeign1220.htm.