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Afghan Charter of Impunity:
President Karzai as the lame duck

Yesterday on 20 February 2007, Afghanistan's upper house of Parliament, Mushrano Jirga, passed a resolution known as National Reconciliation Charter by a 50-16 majority to provide amnesty to all Afghans who were involved in war crimes since Soviet's invasion in 1979. The resolution which was passed earlier by the lower house of Parliament, Wolesi Jirga, on 31 January 2007 provides impunity to the war criminals including Taleban leader Mullah Mohammad Omar. This poses the most serious threat to the credibility of President Hamid Karzai.

I. National Reconciliation Charter: A charter of impunity

In the Afghan war since the invasion by former Soviet Union in 1979, innumerable human rights violations such as massacres, torture, rape, indiscriminate bombings etc have been committed by all parties of the conflict, including the Russian forces, the Mujahideens, the Talebans, the US security forces and the Afghan security forces.

According to official estimate, an estimated 1.5 million Afghans died and some 5 million were forced to leave the country due to foreign invasion and civil war in Afghanistan since 1979. According to the British Broadcasting Corporation, "In the warlord period some 80,000 civilians died in Kabul alone. Large numbers of others were kidnapped, mutilated or raped".

Since the toppling of the Taleban regime by the United States-backed multi-national forces in late 2001, a number of powerful former warlords have been occupying high posts in the government after having been elected to the Parliament. Those accused of war crimes include Vice President of Afghanistan Karim Khalili, Army Chief of Staff Abdul Rashid Dostum, Energy Minister Ismail Khan, parliamentarians Abdul Rasul Sayyaf, Mohammed Qasim Fahim and Burhanuddin Rabbani.

Article 2 of the National Reconciliation Charter states- “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.Article 5 clarifies thatNo political group or party is excluded from this Charter” aiming to provide amnesty.

If signed into law by President Karzai, it would imply that many of the alleged war criminals have ensured their own amnesty in the name of national reconciliation.

II. A rebuff for accountability

The National Reconciliation Charter is a rebuttal of the President Karzai government's attempt to establish accountability under the “Action Plan on Peace, Reconciliation and Justice in Afghanistan” launched on 10 December 2006. The Action Plan consists of five main elements or “Key Actions” to be implemented in three years.

“Key Action 5” on the establishment of effective and reasonable accountability mechanisms provides that “In order to end impunity in Afghanistan and ensure that there will be no amnesty for war crimes, crimes against humanity and other gross human rights violations, the conditions for fair and effective justice procedures are established in accordance with the principles of the sacred religion of Islam, international law and transitional justice.”

The Action Plan also provided for establishing a five-member Task Force, including one member nominated by United Nations Assistance Mission in Afghanistan and one member nominated by Afghanistan Independent Human Rights Commission to provide recommendations to the President on the legal, procedural and institutional framework for addressing war crimes and other gross human rights violations.

If the Action Plan is implemented, many war criminals serving in the government will face prosecution.

III. War crimes: The role of international community

The National Reconciliation Charter negates the cardinal principles of jurisprudence on war crimes that there can neither be any amnesty nor statutory limitations to try the war crimes. Rather the United Nations “Principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity” makes it mandatory for the state parties to extend cooperation for the prosecution of the war criminals.

While President Hamid Karzai must show his resoluteness by rejecting the National Reconciliation Charter, international community must bear in mind the Charter could still be made a law if the lower house of Parliament again passes the bill by two-thirds majority. And the Charter has already been passed by two thirds majority in the parliament.

It is not enough for the United Nations and its officials to condemn the National Reconciliation Charter. If international community including the United Nations Security Council was serious about the prosecution of the war criminals in Afghanistan, nothing could have stopped them to take necessary measures to refer the war crimes in Afghanistan to the International Criminal Court which has been investigating war crimes among others committed by the rebels in Uganda. After all, Afghanistan has already ratified the ICC Statute in February 2003. Yet, instead of referring the alleged war crimes to the ICC, international community including the United Nations have been putting pressure on President Hamid Karzai to prosecute the war criminals despite being fully cognizant of his fragile position.

Is President Karzai being turned into a “lame duck” as an investigation by International Criminal Court might as well involve inquiries into atrocities perpetrated by the Russian and American soldiers in addition to the warlords? Prosecution of international troops is certainly far fetched. However having refused to use the option of the ICC mechanisms, international community has virtually put President Karzai on trial. There are only two possible outcomes under the present circumstances: impunity or back to civil war at the cost of strengthening the Talebans. In both the cases, international community can once again blame the Afghans and remain oblivious to its role and responsibility to punish the war criminals worldwide.

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