Tom Perriello: Lessons from the Amnesty Fight

In many ways, the political showdown this spring over the national amnesty bill serves as a Rorschach test -- observers will see proof of whatever broader view they have about Afghanistan.

The accomodationist/engagement camp points to the rally at the National Stadium (and the near evacuation of UNAMA personnel it triggered) as proof of what they have been saying all along -- a call for justice will upset the delicate balance of Afghan politics. Talk of transitional justice is as naïve as it is dangerous, and should be shelved until further notice.

Alternatively, the accountability crowd sees in this showdown proof that the warlords have much more bark than bite. They point to the fact that despite claims to swarm the streets of Kabul with 250,000 people, the entire United Front produced fewer than 20,000 protesters. Further, these “protesters” were motivated primarily by the free lunch and 50 afghanis.

Then there is the populist account that has shown up in a surprising number of interviews with Afghans: namely, that the amnesty bill was driven by the United States. The logic goes that this is another example of the U.S. protecting its close allies, which include some of the most notorious warlords. The argument continues that the U.S. is also far from eager for a zealous prosecutor to dig into its own complicity in war crimes past or present. Many Afghans remain strongly in favor of aggressive prosecutions, but are increasingly convinced that neither Karzai nor the international community will ever permit these to happen.

Before analyzing the validity of and lessons from these arguments, it is worth noting a few places where these different accounts generally agree:  MORE

1. The showdown was triggered by the hat-trick of a) President Karzai announcing the Action Plan on transitional justice, b) Human Rights Watch repeating its previous calls for war crimes      prosecutions, and c) the hanging of Saddam Hussein. While HRW has taken a lot of heat, more seasoned Parliament watchers seem to think the hanging of Saddam was the new factor that frightened these guys into action.
2. The final version of the Amnesty Bill is not nearly as bad as the first. The bill even formally recognizes the right of any victim to prosecute any perpetrator – a core tenet of Islamic law. This point had come up often in our meetings with ulema in 2005, and, according to diplomats who helped negotiate the revised bill, played a key role in forcing the United Front to back down a bit.
3. The discovery of a communist-era mass grave in Badakhshan and the subsequent call from many--including those within the United Front--for investigation and prosecution shut the amnesty conversation on a rather absurd note.
4. There were several major breaches of the legislative process in producing the final result. The bill was not circulated to members before the vote and was given no time for debate. Once passed, President Karzai had two constitutional options -- veto or sign –- but opted for a third, which was to return the bill with comments.
5. The bill is probably law now, despite the lack of Presidential signature or "gazetting". The majority of analysts suggest that the Constitution here is the opposite of the US “pocket veto” standard: namely, that a failure of the President to sign within 15 days automatically constitutes approval.

So where does this all leave the justice agenda in Afghanistan? Largely stalled, other than efforts at vetting.

At the end of the day, this response to the amnesty law reveals a common error by the international community: not understanding how prosecutions--or even the threat of prosecutions--substantially improves its negotiating position relative to strongmen. The intensity of the United Front’s reaction reveals how seriously they take the threat of prosecution. In such situations, the international community tends to unilaterally remove from the table one of its best bargaining chips for forcing these guys to behave.

Take the example of our indictment of Charles Taylor by the Special Court for Sierra Leone. Most diplomats were upset by the timing of the indictment (has a diplomat ever thought it was the right time for an indictment?). They worried it would disrupt ongoing peace talks (never mind that Taylor had out-negotiated the international community on 24 straight peace deals, each of which he then broke.) Instead, the incoming UNAMIL SRSG saw the indictment as an opportunity. On the eve of his arrival in Monrovia, he told the belligerent Taylor that he had two options--get on the airplane or be arrested the next day.

Taylor got on the airplane. Prosecutions are not much different than force, except in their perceived legitimacy. They alter the relative power of those negotiating. When it comes to justice, we often evaluate the risk of action but fail to compare it to the risks of inaction.

It is a small example, but look as well at the raid on Sayyaf’s house a few weeks ago. Though everyone is cryptic about who conducted the raid on perhaps the most notorious guy in the country, I have yet to hear of a single person in the streets upset about it. Life went on.

I was meeting with a leading reformer in Parliament, who had spoken out aggressively against the amnesty bill. He was dismayed that the international community continued, in its actions, to promote and legitimize the worst warlords. Like so many Afghans we have interviewed, he felt his legs cut out from under him when both President Bush and Speaker Pelosi spent their lunchtimes here with the likes of Dostum, Rabbani, and company.

His advice to the transitional justice community was this: at the very least, we must be like the man who stands above the kabob grill fanning the flames. Even if the kabobs are not yet ready, we must keep the coals burning vibrantly. As long as we do not let the coals burn out, the kabobs will eventually be done. But we should not underestimate how hungry Afghans are for justice.