Overview by Cleo Meinicke and Elia Cernohlavkova, Research Associates PILPG NL
Highlights:
After several failed peace process attempts the panelists agree that the inclusion of the victims of the crimes committed during the war in the process is important.
The safety of the victim needs to be guaranteed.
The side event on the peace process in Afghanistan was hosted by the Transitional Justice Coordination Group – Afghanistan and is generally based on the ICC Prosecutor’s requested authorization to open investigation into war crimes and crimes against humanity committed in Afghanistan.
The event was led by Mark Kersten who is the Deputy Director of the Wayamo Foundation. The participants included Pablo de Greiff, the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Marieke Wierda a Dutch lawyer working on a PhD on the Impact of the ICC in Situation Countries, including Afghanistan, Abdul Wadood Pedram working for the Human Rights and Eradication, Hadi Marifat the director of Afghanistan Human Rights and Democracy Organization, and Horia Mosadiq, an Afghan human rights activist, political analyst, and journalist.
At the beginning of the event a short movie was shown that displayed the effect the war in Afghanistan has on the civil society. The majority of Afghan families suffer from loss and casualties due to the effects of the war.
The floor was first given to Horia Mosadiq who emphasized that the previous peace-building efforts were often labeled peace processes. The very term of a process however implies for her the inclusion of victims, which is still not the case in Afghanistan. The Afghan President Ashraf Ghani offered the Taliban unconditional peace talks, especially welcomed by the United States, for which he drafted a plan but according to Mosadiq nothing has been done in reality and victims are still not included. On the backdrop of the exclusion of victims, she however points out that there has been positive development in the inclusion of women in peace-building efforts. She pledges for national dialogue, and criticizes the courts for their lack of public outreach. Mosadiq also suggests a new national survey, investigating the crimes committed throughout the war. The last survey was conducted in 2004 hence a new survey is long overdue.
Marieke Wierda followed with pointing out four main challenges the ICC will face when investigating the crimes committed in Afghanistan. First, there is the challenge of pervasive impunity due to the introduction of amnesty laws in 2007 by the parliament to prevent the prosecution of individuals responsible for human rights abuses during the war. Second, because the perpetrators of the crimes are not yet prosecuted and many of them work in high positions in the government, Afghan society sees the perpetrators’ actions as being accepted and legitimized. Third, accountability and transitional justice efforts have been depicted as a Western agenda, which challenges the ICC legitimacy and the United States denying attitude towards the investigation into the Afghan case adds to this. Lastly, Wierda doubts the deterrent effect of the ICC. Questioning an ex-Taliban about the Court’s deterrent effect, he argued that youth are willing to give their life through suicide attacks and the Court does not have any deterrent effect on this. Moreover, the very concept of international justice is not included in the Madrasas, the Islamic curriculum. Wierda suggests that ICC scrutiny should be encouraged to increase accountability in Afghanistan, referring to Uganda and Colombia as successful examples. Furthermore, reparations should have been paid already a long time ago and should be at the top of the agenda as well.
The UN Special Rapporteur Pablo de Greiff picked up the importance of the inclusion of victims into the peace-building process. He suggests the inclusion of the most affected and the necessity to identify the different groups that need to be represented. He made a reference to the Colombian situation where 17 civilian groups were identified in order to ensure that all of them are represented.
The statements by the abovementioned panelists formed the main part of the event, followed by opening up the discussion to the audience. One of the comments from the audience came from an Iraqi judge who sat on the bench of the Special Tribunal against Saddam Hussein. He pointed the similarities between the crimes committed in Iraq and the ones discussed in the side event in Afghanistan out. This comparison was very much appreciated by the panelists.
The main question asked by the audience, among others by a member of Human Rights Watch, concerned the protection of the victim witnesses. Hari Marifat stressed the importance of this question but admitted that not even the mechanisms for victim inclusion have yet been included. He also raised the point that the concept of “security” or “safety” is ambiguous in the context of Afghanistan, where bringing a victim to Kabul for example already poses a higher risk for the victim. Wierda also added the concern that where authorities are weak it is even more difficult to protect witnesses. She argues that at least the “no harm” principle should be applied in those situations.
Another discussion was sparked by a question concerning the relationship between peace and justice in the Afghan context. The most prevalent factor here are the amnesties granted to perpetrators and whether these are a means to peace or rather justice. De Greiff argued that it would be wrong to say that justice is an obstacle to peace in the case of Afghanistan, because amnesties do not always result in peace. This decision has to be made on a case-to-case basis. He refers to Colombia where the combination of justice and peace was successful. Wadood Pedram added that the Afghan people would support an ICC investigation as the amnesty laws were strongly opposed by the civil society, so they would like to see justice done.
As a concluding statement Mosadiq stressed that she wishes the cycle of victims becoming perpetrators to be broken by letting justice prevail in Afghanistan. She pleads for a change in the narrative, where it is not that the case that low-key criminals are in prison and those most responsible for the atrocities member of the government in Afghanistan, this sends the wrong message to the civil society.