“Anyone who partook in hostilities against the Islamic Emirate or anyone with reservations about the Islamic Emirate is forgiven and pardoned for all past actions,” said Haibatullah Akhundzada, supreme leader of the Taliban, in his statement celebrating “the collective victory of the entire Muslim and Mujahid nation.”
Last Saturday’s signing in Doha of the agreement between the United States and the Taliban politically legitimizes the heirs of Mullah Omar. It punts on many crucial issues, leaving them up to the intra-Afghan negotiations, scheduled to start on March 10: from the political-institutional architecture of the country to the division of power. And it sidesteps the question which is fueling instability more than any other: that of justice.
According to Hadi Marifat, the director of the Afghanistan Human Rights and Democracy Organization (AHRDO), the non-governmental organization which was behind the opening in February 2019 of the first museum dedicated to the victims of four decades of war, the words of Mullah Akhundzada are “an insult.”
“Instead of making a plea to his victims for forgiveness,” Marifat wrote on Twitter, the turban-wearing guerrilla leader “is offering forgiveness.” The word ‘insult’ was on the lips of many Afghans a few days ago, when the New York Times published an op-ed by Sarajuddin Haqqani, the deputy leader of the Taliban and the head of the Haqqani network, the movement’s most extremist and bloodthirsty wing.
It was an ecumenically minded article in which the author, who is on the list of international terrorists, called for peace, dialogue and unity. All this without a single mention of the victims of the conflict, not to mention his own responsibility for the bloodshed.
The agreement between the United States and the Taliban might end up definitively burying the Afghans’ demands for justice. “The last hope is the decision of the International Criminal Court,” Ehsan Qaane, a researcher for the Afghanistan Analysts Network, told us the last time we met him in Kabul. He was talking about a long-term initiative for which the decisive moment came Thursday, with the approval of an investigation into possible American war crimes.
On April 12, 2019, the Pre-trial Chamber of the International Criminal Court rejected the request made at the end of November 2018 by the office of Chief Prosecutor Fatou Bensouda to start an official investigation into alleged war crimes and crimes against humanity in Afghanistan.
Preliminary investigations lasting for many years had established that there was “significant evidence of crimes against humanity and war crimes” committed by the Taliban and the Haqqani network, and war crimes by Afghan security forces and local intelligence services, as well as by US soldiers in Afghanistan and the CIA.
However, according to the judges of the Court, this was not enough. The request for opening a full investigation was denied, since, as the judges claimed, due to political volatility and a lack of resources, the opening of the investigation would not serve “the interests of justice.”
“The Court’s decision came as a slap in the faces of millions of Afghan war victims, in particular those 699 individuals and collective applicants who often at the cost of risking their lives provided evidence to the ICC to make a sound and legitimate judgment,” was researcher Huma Saed’s poignant summary of the decision, writing for the Security Praxis website.
When we met him at the Museum of Victims in Kabul, Hadi Marifat, the director of AHRDO, called this decision “a dangerous precedent, because it is a political decision, without a legal basis.” The impression was that the International Criminal Court had felt pressure coming from the Trump administration, which believes the Court is “attacking America’s rule of law,” as explicitly stated on March 15, 2019 by the US Secretary of State, Mike Pompeo.
According to the researcher Eshan Qaane, the position of the US government was certainly a factor, but also a broader and more deeply rooted conviction: namely, “UN special envoy Lakhdar Brahimi’s [UN Special Representative in Afghanistan from 2001 to 2004] dictum … that one could either have peace or justice,“ but not both.
This is a conviction that has become a solid orthodoxy. As Qaane explains, justice has been absent from all major treaties concluded for the country: “From the Geneva Accords between President Najibullah’s government and Pakistan (backers of the Sunni factions of the mujahedin) in 1988, which paved the way for the withdrawal of Soviet troops, to the United Nations-sponsored Bonn Agreement that established the post-Taleban Afghan interim authority in 2001 …, to the Afghan national unity government peace deal with Hezb-e Islami leader Gulbuddin Hekmatyar in 2016”—who returned to the country’s political scene on a literal red carpet.
The agreement between the US and the Taliban follows the same logic. For this reason, many people consider it to be crippled from the outset. “I also told Brahimi when we met: peace without justice has no value,” Aziz Rafiee told us, a well-known figure in Afghan civil society and director of the Afghan Civil Society Forum Organization. According to him, “there is peace in a country when there is trust in the system, and trust can only come from justice.”
Thursday, however, the judges of the International Criminal Court’s appeals chamber marked a decisive turn away from the decades-old approach with their decision to uphold Bensouda’s appeal against the decision of last April rejecting her request to open an investigation into the crimes in Afghanistan. What Qaane called “the last hope for some form of justice” has materialized: Prosecutor Bensouda is now authorized “to commence investigation in relation to events dating back to 2003 as well as other alleged crimes [related to] Afghanistan,” and her full-scale inquiry will not be limited to just the results of the preliminary investigations, which would “erroneously inhibit the prosecution’s truth-seeking function.”
Many activists rejoiced at this major development: “This decision is welcome news to everyone who believes that the perpetrators of war crimes should not enjoy impunity, no matter how powerful they are,” Preetha Gopalan, deputy head of UK litigation for the NGO Reprieve, told The Guardian. “This is the first time the US will be held to account for its actions, even though it tried to bully the ICC into shutting this investigation down. That the ICC did not bow to that pressure, and instead upheld victims’ right to accountability, gives us hope that no one is beyond the reach of justice.” As Eshan Qaane said, “this could be the right moment.”
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