Afghanistan Watch: 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

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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.