THE PATHWAY TO TRANSITIONAL JUSTICE IN AFGHANISTAN.

• Author: Besmel, Parwez

INTRODUCTION

After nineteen years of war against the Taliban, NATO-member countries and the Afghan government have come to a consensus that a negotiated peace settlement is the only solution to the long-standing conflict in Afghanistan. In February 2020, the United States signed a peace agreement with the Taliban that set the stage for direct peace talks between the Afghan government and the Taliban. Considering the number of regional players in support of the peace talks--including Pakistan, India, Iran, Russia, and China--the prospects of reconciliation is highly likely. But what about justice? This article answers this question by analyzing the current security, economic, social, and political realities of Afghanistan. I argue that justice will remain a post-reconciliation agenda; however, it will not be retributive given the warring sides are trying to reach a negotiated peace settlement.

The organization of the article is as follows: First, I will briefly present a summary of transitional justice literature highlighting the four common mechanisms that fall within the sphere of transitional justice. Second, I will discuss the current socio-political realities of Afghanistan in relation to transitional justice and my argument on the improbability of trial, lustration/vetting, reparation, and the suitability of truth and reconciliation commission for Afghanistan. Next, I will discuss the experiences of ten other countries focusing mainly on the conditions that led these countries to choose truth and reconciliation over other mechanisms of transitional justice. Finally, I will end with some concluding remarks.

TRANSITIONAL JUSTICE LITERATURE REVIEW

Rooted in post-World War II legal innovations, particularly the Nuremberg and Tokyo trials, transitional justice refers to policy measures adopted by post-conflict and post-authoritarian states responding to past atrocities using judicial and non-judicial mechanisms. (1) While it started with trials, today other mechanisms such as a truth and reconciliation commission, lustration/vetting, and reparation are also included within the scope of transitional justice that is aimed at bringing peace, stability, truth, justice, and the rule of law.

Trial

Until recently, transitional justice has emphasized prosecution and trial for three main reasons. First, the punishment of major offenders is an important "right of the victim" for those who have been wrongly harmed by a fellow human being, group, or state agent. (2) Justice from this point of view must be severe in nature, and those who have committed gross human rights violations must be held accountable for their wrongdoings. If no action is taken, then silence not only adds to the suffering of the victims but also creates a culture of impunity that will encourage further offenses and abuse. Protection of its citizens is one of the main responsibilities of states; therefore, states must defend the rights of their citizens and hold responsible those who violate them. Second is the issue of deterrence. Proponents of trial mechanisms argue that punishment generates an understanding that the transgressor will be held accountable, and, therefore, dissuade potential offenders from committing similar acts of violence. In the words of one prominent scholar, punishment must exist as a "threat and reality." (3) Third, international treaties and conventions oblige signatory states to protect their citizens and prosecute those who commit acts of war crimes, genocide, and crimes against humanity. There are many instances where states or the international community held perpetrators of heinous crimes accountable through prosecution and trial. In the post-World War II era, the victorious Allied powers prosecuted and tried twenty-two top figures of the Nazi regime in the well-known Nuremberg trials. (4) Besides the Nuremberg trials in Germany, the winners of the war prosecuted other Nazis in separate trials. These trials were held in the territories each Allied nation controlled after World War II. In total, 5,006 individuals were prosecuted and tried by the United States, Great Britain, and France. (5) Similarly, in the Tokyo and Yokohama tribunals, the United States prosecuted and tried around 1,000 Japanese military personnel. (6) Following the Nuremberg trials and the subsequent trials by the Allied powers, the government of Germany also began prosecuting and bringing to trial members of the Nazi regime, and by 1974 it had prosecuted and tried "168,694" individuals, "151,039" of whom were exonerated. (7) Rwanda, the former Yugoslavia, Sierra Leone, Greece, and Peru (to name a few) also followed suit, and, to ensure the rights of the victims and honor international conventions and treaties, put on trial those who had committed acts of severe violence. Due to the nature of atrocities and international community engagements, there have been international tribunals for the former Yugoslavia, Rwanda, and Sierra Leone (the International Criminal Tribunal for Former Yugoslavia [ICTY] 1993; the International Criminal Tribunal for Rwanda [ICTR] 1994; and the Special Court for Sierra Leone [SCSL] 2002, respectively). The ICTY was established by the United Nations in 1993 to address genocide and war crimes that claimed "over a quarter of million" lives during the Balkans conflict in the 1990s. The tribunal that ended in December 2017 has charged 161 people for crimes committed during the Balkans war. (8) Similarly, the United Nations established the ICTR to respond to the genocide of 1994 that claimed over 800,000 in Rwanda. The tribunal that ended in December 2015 charged 93 individuals involved in the horrific genocide. (9) The SCSL was established in 2002 to respond to atrocities committed against civilians and the United Nations peacekeeping forces during the Sierra Leone civil war, in which 75,000 lost their lives. The court that ended in December 2013 charged thirteen individuals who committed heinous crimes. Peru and Greece, however, tried perpetrators of gross human rights violations in domestic courts. In 2009, the Peruvian court convicted former president Alberto Fujimori to twenty-five years for the atrocities committed under his presidency that claimed the lives of 69,000. The sentencing of Alberto is considered historic in transitional justice as a former president was charged and sentenced for human rights violations in a domestic court. (10) In 1975, the national court in Greece convicted 113 military officers who committed atrocities during the military dictatorship of 1967 to 1974. These military officers received various sentences including life imprisonment. (11)

Some studies have found that trials, domestical or international, are effective for peace through their deterrence force. For example, Sikkink and Walling looked at the impact of trials in several countries--including Argentina, Peru, Panama, Guatemala, Honduras, Chile, and Paraguay--and found that there is a correlation between tribunals and less future violence. (12) Similarly, Akhavan found that the international trials of the ICTR, ICTY, and SCSL played an instrumental role in maintaining peace post conflict. (13) Findings by other scholars, however, do not fully support this conclusion. For example, Meernik et al. (2010) found that neither domestic nor international trials have a "significant impact on peace or human rights." (14) Similarly, Mani (2005) argues that there are problems associated with trials, including the risk of a backlash or setback into conflict and the "adversarial and confrontational nature of trials that exacerbate hostility." (15)

Lustration/Vetting

There is a lack of consensus among scholars on the definition of terminologies such as lustration, vetting, and administrative justice, though the disagreement is minor. (16) Lustration refers to laws some states enact in post-authoritarian regimes to ensure elements of the past repressive regime cannot hold important public positions. (17) Vetting, on the other hand, refers to a "formal process for the identification and removal of individuals responsible for abuses" in the criminal justice system. (18) In other words, it is the screening of individuals for their association with past atrocities to ensure those who take public office had not been involved in gross abuses and violations of human rights. Some scholars refer to lustration as "administrative justice" since it concerns administrative law that regulates the functioning and operation of public agencies and offices. (19) One of the most comprehensive lustration programs was conducted in Greece by the post-military government in 1974. Most state agencies' top officials serving in the police, military, justice system, banks, and even academic institutions were removed and replaced with people who supported democratic principles. A total of 108,000 bureaucrats underwent the lustration process, resulting in some being laid off while others either transferred or received disciplinary actions. (20)

The vetting process in Bosnia and Herzegovina was directed more toward law enforcement personnel, ensuring that the rule of law was enforced, and officials did not engage in ethnic sectarianism. From 1999 to 2002 under the watch of the United Nations, 24,000 law enforcement officials were vetted. In the Interior Ministry, some received provisional certification while 481 individuals did not pass the vetting process and were prevented from receiving certification. (21) In El Salvador, the vetting process went beyond individual vetting and extended to what is termed "total vetting," in which part or whole of an institution is eliminated and their personnel either dismissed or prohibited from applying to the new organizations. Institutions that underwent "total vetting" included paramilitary, police, and infantry forces. (22) Poland, the Czech Republic, Hungary, Albania, Bulgaria, Lithuania, and Poland are other countries that...