Barnett Rubin examines the 'reconciliation law'-- line by line

Below is Barnett Rubin's analysis of the controversial "Reconciliation Law" that has been submitted by the parliament and now sits with the president. Despite widespread criticism (see here or here) that the law would give immunity to war criminals and obstruct justice, Rubin finds that, in general, "most of the text is acceptable or even positive,even if the intentions are not." I'd be interested in whether others share his views--please post a comment if you agree or disagree...

Rubin notes that "it is drafted very unclearly, which may be an advantage" and argues that "the government and international community should try to calm the situation and turn a discussion about politics into a discussion about the rule of law. The resolution is drafted as a political statement, not a law, and this provides an opening for discussion.":

Here is the general and most important point: After a period of civil war or rebellion, it is appropriate and legal, under international, national, and shari'a law, for the state to issue an amnesty for all combattants, regardless of their political affiliation.  This is the point of the example of Prophet Muhammad given in the resolution.  As the head of the Muslim umma, he forgave those who had fought and rebelled against it after the conclusion of hostilities. This is a very good example and should be followed.

In the Afghan case it means that no leader, organization, or combatant should be prosecuted for acts of war that they committed while taking up arms against or for any government or party.  They key point is that this amnesty applies to acts of war. International, national, and shari'a law, however, recognize another category of acts, much more limited in scope, which the state cannot pardon unilaterally. MORE

The Afghan constitution, for instance, forbids anyone convicted of "crimes against humanity" (jarayim-i zad-i bashari -- see for instance article 62) from becoming president or holding other offices.  This same term exists in international law, along with "war crimes."  The term "war crimes" unfortunately is sometimes misunderstood to criminalize war itself, which it does not.  These categories are very limited and severe crimes.  They do not involve acts of war, but acts directed against non-combattants.

These include the killing and torture of unarmed prisoners, rape, and other such acts.  At present, I do not know of Afghan national legislation defining "crimes against humanity" as mentioned in the constitution, but clearly the implementation of the constitution requires legislation to define crimes against humanity and the punishment for them.

The "reconciliation" law is actually quite unclear about what acts come within the terms of the amnesty.  Before we escalate this further into a confrontation, we should try to have a calm dialogue about this legal question. 

There is also a question regarding Islamic criminal law.  As I understand it, the criminal code of Afghanistan incorporates the Islamic law of qisas.  Under qisas the relatives of a murder victim have the authority to forgive him AFTER (NOT BEFORE) his conviction by a court. The state does not have this authority.  Shari'a recognizes crimes between man and God and crimes between man and man.  Qisas applies to the latter.  I am not a Muslim or an 'alim, and I would like to hear a legal opinion from a qalified jurist on this matter. 

Detailed comments follow indented below the relevant paragraphs. 

- Barney Rubin

-----------------------------------------------------------------

In the Name of God Most Kind, the Most Compassionate

BRR:  If I may make a tafsir, though I am not a Muslim, note that the fatiha or the Holy Quran opens as follows:  Bismillah al-rahman al-rahim, al-hamdu lillahi rabb il-'alamin, alrahman, al-rahim, malik yawm al-din.  It opens with two attributes of mercy, mentions an attribute of kingship, repeats two attributes of mercy, and concludes with an attribute of justice.  The advocates of both victims and those who fear being charged as perpetrators should contemplate this verse carefully.

Human History in its ups and downs has been sometimes a witness to the bitter and destructive events of war and clashes between the world countries and nations.

Afghanistan has not been an exception to this rule and in its historical and political life, time and again the world powerful rules have targeted, and our beloved nation has, by sacrificing their lives and properties, defended their country against foreign aggression.

During the past 28 years, the people of Afghanistan have witnessed two foreign onslaught, from the north by the former Soviet Union and from the south, by the international terrorism that caused over two and a half decades of destruction and bloodshed in this country while still the ugly shadow of war is threatening the individual and collective lives of our people.

In view of its hard future perspectives and extension of the war in some parts of the country and development of lack of trust in various sectors of the society, now more than any other time, both our government and our nation need a comprehensive design for strengthening national peace and stability. It is clear that the end of every war is pace and every reconciliation can be based on the standards appropriate to the beliefs, culture and national traditions of the country in question.

The government and the people of Afghanistan, in order to reach a sustainable reconciliation and put an end to the war and destruction can utilize two types of examples and procedures:* On the basis that they are Muslims, from the deeds of the great Prophet of Islam, who after the conquest of Mecca pardoned all those persons who had fought  against Islam and the Muslims;

Barnett Rubin (BRR): This is a good example.  What did the Prophet of Islam actually pardon?  What acts came under his amnesty?  Did he pardon the killing of women and children, the torture of prisoners, rape?  Or did he pardon only the waging of war against Islam and its prophet? *

Being among the third world countries due to the level of political life and government system, following the example of reconciliation in South Africa and the neighboring country of Tajikistan
on the basis of reconciliation and forgiving each other.

BRR:  These are also good examples. Before proceeding further, the parliament should invite representatives of the reconciliation process of these two countries (including Muslims from South Africa) to come to Afghanistan and discuss with the members of parliament how these processes worked. Of course the two processes were different, and Afghanistan will have to find its own path.  It is very positive that the Wulusi Jirga is seeking to learn from international experience. 

To date, several decrees and conventions have been issued and signed in order to create the opportunity for peace and coexistence, such as the general amnesty decree during the Mujahideen interim Government under the leadership of Hazrat Sibghatullah Mujaddidi in 1371; the Bonn Agreement based on reconciliation and coexistence of all political parties in 1380; general amnesty decree for the antagonistic elements of the Taliban in 1382; the decree for creating the commission for strengthening peace and Islamic brotherhood in 1384 by Mr. Karzai, President of the Islamic Republic of Afghanistan.

BRR: The Bonn Agreement did not declare any amnesty.  A provision to forbid an amnesty for war crimes and crimes against humanity was removed at the insistence of the same people who are sponsoring this legislation, but no amnesty was enacted.  The decrees regarding the Taliban and national reconciliation extend to acts of war not crimes against humanity.  I have never seen the text of Hazrat Sahib's amnesty, but I believe it was similarly vague.  Now that Afghanistan has a constitution and is trying to establish the rule of law, it should take some time and decide on clear legal criteria for what is amnestied and what is not.

These decrees and conventions have been effective on their own terms, but for strengthening peace and stability in the country and creating of immunity for all involved parties, provided they are obedient to the Constitution the prevailing laws other country, more legal and transparent steps should be taken so as to create an opportunity for removing the distrust so that all segments of the people, political parties and intellectuals could be integrated for consolidation of peace and stability.

BRR:  Good paragraph. 

Now that as a result of the efforts of the Muslim nation of Afghanistan all three branches of the Islamic Republic of Afghanistan, Executive, Legislative and Judiciary are Completed, the Nation Assembly of Afghanistan ratifies the following as an effective step towards consolidating peace and stability, ensuring our vital national interests, putting an end to the past and present enmity and providing a comprehensive solution that encompasses all parties and is a real response to the serious needs of our Islamic country as follows: outstanding

1. Jihad, resistance and the rightful struggles of our people in defending the religion and country are the glorious highlights of the country's history and part of the exceptional national pride of our people. They must be respected and the champions of this path shall be honored and within the framework of the system of the Islamic Republic of Afghanistan they should be treated properly and shall be immune to all kinds of animosity.

BRR:  Certainly the Wolusi Jirga can decide to honor those who fought on a particular side in the wars of the past decades, though it might not make reconciliation with their opponents easier.  It can ask for such people to be honored "within the framework" of the constitution, as this does not give any extra-legal privileges.  It is not clear what it means to be "immune from all kinds of animosity" (az har guna-yi ta'aruz mas'un bimanand).  Forbidding criticism of a particilar political group is NOT within the framework of the constitution.

2.      All political parties and belligerent groups, who fought each other during the past two and half decades by one or the other means, shall be included in the national reconciliation process, to make peace between different segments of the society, ensuring peace and stability, to commence and consolidate a new life in the modern political history of Afghanistan and will not be pursued legally or judicially.

BRR:  This paragraph, which seems to be the core of the matter, as written forbids legal procedings only against political parties and belligerent groups (janahha-yi siyasi wa tarfha-yi mutakhasim), not
against individuals.  Furthermore the only action that it mentions is fighting among groups or military activity, which is an entirely appropriate subject for an amnesty.  This paragraph as written does not provide any kind of amnesty for individuals who committed crimes against non-combattants.  It does not even mention such individuals or such crimes.  As written, this paragraph simply forbids the banning or criminalization of militia factions on the basis of past fighting.

3.      Inaccurate reports of Human Rights Watch about the Jihadi leaders and national figures of the country may be the consequent of suspicious intentions, and National Assembly of Afghanistan declares them not credible.

BRR:  Leave it alone.  Let's not turn this into a debate about Human Rights Watch and its charges.  The law could state that crimes committed by Afghans in Afghanistan are the subject of Afghan law (which incorporates relevant international law), and evidence must be presented in accordance with AFghan law.

4.      All those who have engaged in armed opposition to the Islamic Republic of Afghanistan and have now joined the process of national reconciliation and who respect the Constitution and the prevailing laws of the country are entitled to benefit from the privileges of Article 2 of this Charter.

BRR:  This paragraph does mention individuals (tamm-i kasani kih ... mukhallafat-i musallahana ba dawlat-i islami-yi Afghanistan qarar dashta...), but it identifies them only as tose who fought against the government.  It says nothing about those who committed crimes against humanity or war crimes against non-combattants.  Again, this is perfectly appropriate.

5.      No political group or party is excluded from this Charter.

BRR:  Fine.

6.      In order to help end the violence and distrust between the Government and the armed opposition factions, strengthen stability and national reconciliation, and extraordinary commission should be established by the lower House of the National Assembly to pave the way from them to join the process of strengthening stability and national reconciliation, an extraordinary commission should be established by the lower House of the National Assembly to pave the way for them to join the process of strengthening stability and national reconciliation.

7.      With the establishment of the Afghanistan National Assembly. All laws and international conventions are to be compared with Afghanistan's Constitution and other state laws, and therefore only the laws passed by the National Assembly should be accepted by the Government and the
people of Afghanistan.

BRR:  This issue came up during the drafting of the constitution.  The implication is that some international conventions are not Islamic (for instance freedom to change religion).  The constitution is not clear (by design) about the relation of international and national law.  This is an important issue.  But it is irrelevant to war crimes and crimes against humanity, which are equally illegal under international, national, and shari'a law.

8.      In order to promote peace and stability and end the war, the Lower House of the National Assembly of Afghanistan calls upon all armed groups opposing the Islamic Republic of Afghanistan to join in the process of consolidating national peace and stability of Afghanistan.

BRR:  may your strength increase.

9.      The Lower House of National Assembly disregards and considers inappropriate the Durand line fencing and mining plan as means for controlling and restricting terrorism and believes that terrorism should be controlled and restricted through closing its training, equipping and financing center.

BRR:  Not really germane, but what Afghan political statement is complete without an attack on Pakistan?

10.  while emphasizing the independence and integrity of Afghanistan, the Lower house Considers maintaining good and peaceful relations with our neighbors a top priority and honestly makes every effort to realize this.

BRR:  Plus a statement that you don't really mean it.

11.  The mass media should keep in mind the provisions of the national reconciliation Charter and make efforts to strengthen peace and national reconciliation.

BRR:  A veiled threat with no legal validity.

12.  The national peace and reconciliation Charter has been adopted in 11 Articles and it is to be enacted.

Comments

[Joel Hafvenstein]

That's all somewhat reassuring. Of course the vagueness of the law will not prevent it from being forcefully applied to silence critics of the "war criminal" parliamentary bloc. In practice, unclear formulations like "immune to all kinds of animosity" will be sufficient grounds to at least launch prosecutions against critics, as the veiled threat against the media makes clear. The amnesty provision's ambiguous wording regarding groups and individuals (and war fighting vs war crimes) is only an ambiguity if the courts make it so, and as I recall the former warlords have a great deal of pull in the court system. Though at least the Supreme Court is no longer headed by a Sayyaf crony.

Perhaps President Karzai could take a page from the American system and issue a "signing statement" when he signs the law, explaining that he and his Justice Ministry interpret it according to something like Prof Rubin's reading, and will enforce it accordingly?

[Matt Weems]

It looks like this law was created by men hoping to avoid prosecution for atrocities, rather than by high-minded men trying to forge a future for their country, but does that make a difference?

The assumption that war crimes prosecution would quickly devolve into a means of attacking old enemies is certainly true. If I were Atta I would find victims of Dostum's men, and, in the unlikely event I couldn't find a really good one, I would manufacture a victim with a terrible story. Dostum would then respond in kind, of course.

And the outcome would be bands of men seeking heavy weapons so they could fight off the government troops when the arresting parties come for them. Pashtun victims of prosecution would have the option of turning to the Taliban and Pakistani money and weapons, The Hazara would turn to the Iranians, someone would go to the Chinese for their weapons.

I just don't know that Afghanistan is stable enough for justice. Perhaps I am wrong. Perhaps there is cohesion in the Afghan government beyond what I can see from here, but it doesn't look that way.

Do the people want justice if it means an end to the relative peace of the last five years?

Matt

[Adil]

There are a few good reasons why this the amnesty bill should be welcomed:

1. Human rights issue has become a strong political tool at the hand of Pashtoon supremacists, who were once strong supporters of the barbaric Taliban regime, only because of ethnic affiliation.

2. Afghanistan does not have the luxioury of prosecuting crimes committed over three decades. The international community has failed to provide even very basic needs for the Afghans. All of their projects are quick-fix and are hoping to run away as soon as Ben Laden is caught or some other face-saving arrangement is in place, leaving the Afghans to leave thier wounds.

3. The cry for human rights runs counter to government's policy of pleading to insurgents, such as the notorious Hekmatyar, to join the peace process, even in exchange for privlages.

Now, one can see where the paradox lies and how the human right issue has become a dangereous tool.

I wish Afghanistan was not divided on ethnic line, and the world had some real sympathy with us. On such a situation, I think the entire population would have strongly backed every measure against any criminal, no matter from what ethnic group.

[Afghan]

With all due respect, This is in response to an article "Looking at Pakistan, and How To Tackle Tribal Militancy" on Registan.net, Afghan Study report and Rubin's quest to divide Afghans so he can collect his paycheck. Pakistan must chain it's dogs around the world.I would question Rubin's interests in his flawed analysis. He clearly speaks for and is fed by the rich and powerful Pakistan Lobby in Washington; that is evident from The Afghan Study Report (funded by.. the pakistanis) is which it recommends Washington to put pressure on Kabul to recognize an artificial line called the Durand line, which divides two families with the same religion, culture and language. Intellectuals must seek the truth for humanity sake (and not sell out), seek independent knowledge and guidance. My suggestion to Rubin is read the rich history of Afghanistan, to your surprise you will find yourself reading into India and Bangladesh history, do not be shocked please continue (and you will be amazed at what you can learn besides the 50 languages spoken in Afghanistan). Pakistan suppress Pashtun/Afghan nationalism as per its military doctrine including but not limited to using Pashtuns/Afghans to fight religious proxy wars with India (suddenly the Pakistani-Indian relations have soared to a level unimaginable before 2001, ummm playing its cards- again do your own research Rubin), keep Afghanistan unstable for its strategic interest while also collecting its paycheck, exploit ethnic groups in Afghanistan, prevent the population from developing and growing, and destroy it’s infrastructure and institutions. Here a link to an earlier report from Human Rights Watch, nothing has changed since http://www.hrw.org/reports/1989/WR89/Afghanis.htm#TopOfPage .. to lazy to click on this Rubin, munch on this “..Since late 1988, the Pakistani ISI has increased pressure on resistance commanders to shell cities. Far from pinpointing military targets, this shelling has been almost uniformly indiscriminate, in violation of the laws of war protecting civilians. Following the Soviet withdrawal, the ISI approached the shura (governing council) of mujahedin commanders in Qandahar province and urged them to shell the city of Qandahar and its airport, promising weapons in return. The commanders were willing to shell the airport but not the city, unless civilians could be evacuated, which was not possible. The ISI then recruited other commanders who were willing to, and did, shell the city; they were formed into a second shura, ultimately bringing about the collapse of the first. The Bush administration has failed to use its influence with Pakistan to prevent this kind of pressure on resistance commanders to undertake indiscriminate attacks on civilians, even though U.S. arms are playing a major role in these attacks.” Pashtunistan is/was and always will be apart of Afghanistan, this is what the mass of humanity will tell you across the line of division. They will not be divided nor conquered. The only change in 6,000 years has been Islam and yet Afghans still stick to their culture. Afghans can only be ruled by Afghans, not by Punjabis. Do not give false hope and directions to the wonderful people of America and it’s policy makers. Pashtuns/Afghans do not have animosity towards America or Americans, If we seek a division this will bring about guaranteed distrust and hatred. I urge people who seek the truth to question the motives and interest of anyone who seeks to divide the Afghan people. It is in the long term interest of America and the world to keep Afghans united, for Afghanistan’s stability. No truth seeking people or true Afghan will recognize the Durand Line. Here is a statement from the father of Pakistan (what would we do if a similar statement was made by George Washington?) “The Fatherland of Pak Nation (Ali 1940) “North West Frontier Province - is semantically non-descript and socially wrongful. It is non-descript because it merely indicates their geographical situation as a province of old ‘British India’ [which no longer exists]. It is wrongful because it suppresses the social entity of these people. In fact, it suppresses that entity so completely that when composing the name ‘Pakistan’ for our homelands, I had to call the North West Frontier Province the Afghan Province.“Choudhary Rahmat Ali in his book, “Pakistan”. Afghanistan is at a very weak stage (purposely), please prevent paid off intellectuals and special interest groups from accomplishing their mission to divide Afghanistan. They have blitzed consistent incorrect information against Afghanistan’s interest. Pakistan feeds on instability of Afghanistan to progress; it should give the Pashtuns/Afghans pens instead of guns if it is sincere.

*Hopefully Rubin does not have this comment removed.

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