European Council on Foreign Relations

Unjust disorder? Impunity and insecurity in post-2001 Afghanistan

by Marika Theros & Iavor Rangelov

A decade ago, Barnett Rubin argued that there was a “consensus on caution” about transitional justice in Afghanistan because of pervasive fears that “destabilizing the current post 2001 order risks a return to the unjust disorder from which Afghanistan has barely emerged.”  Today, the situation in the country could be described precisely as “unjust disorder”: a combination of impunity and insecurity.  This paper examines Afghanistan’s repeated cycles of violence and abuse, the failure to pursue accountability after the US-led military intervention in 2001, and the effects of impunity and incorporation of perpetrators in power structures on the dynamics of conflict.  It concludes by locating the failure of justice seeking in Afghanistan in the broader context of the War on Terror.

Afghanistan has been caught in repeated cycles of violence for several decades, which can be divided in four phases: the Soviet invasion to the fall of Najibullah (1978-1989); the civil war (1989-1996); Taliban rule (1996-2001); and the period since the US-led military intervention and regime change (post-2001).  Although a full catalogue of the egregious human rights violations committed since 1978 cannot be attempted here, patterns of abuse can be identified.   Under Communist rule and Soviet occupation, mass arrests, torture, and executions of perceived enemies of the state became common, and a brutal counterinsurgency and indiscriminate bombings in the countryside left an estimated one million dead. Inter-factional fighting during the civil war involved shelling of civilian areas in Kabul and featured ethnic cleansing and large-scale rape. The Taliban may have emerged as a response to the prior period of lawlessness but consolidated power by destroying villages, engaging in torture, and massacring civilians. By 2001, an estimated 7 million Afghans had been driven from their homes, constituting the world’s single largest refugee population. 

The overthrow of the Taliban in 2001 presented an opportunity to halt Afghanistan’s cycles of violence and abuse.  Instead, this period has been marked by progressive deterioration of security and further human rights violations.  The growing strength of the insurgency has been accompanied by a rise in kidnappings, assassinations, and killings caused by suicide attacks and IEDs.  The international forces deployed to Afghanistan and their local counterparts have been implicated in torture, arbitrary detention, heavy-handed night raids, and air strikes causing civilian casualties. These developments can be attributed in part to the failure to pursue justice, accountability and institutional reform by addressing the complex legacy of past abuses.

The justice agenda has been repeatedly sidelined in favor of other objectives at critical junctures in the post 2001 transition and, apart from limited documentation, no other mechanisms have been effectively implemented. At the negotiations in Bonn in December 2001, the UN draft of the agreement included provisions to preclude an Interim Administration from granting amnesties for war crimes and crimes against humanity, and to implement disarmament, demobilization, and reintegration (DDR) of unofficial armed groups.  These provisions became sticking points in the talks for the anti-Taliban militias allied to the United States, and were eventually removed.  Instead, a paragraph praising the mujahedeen for past sacrifices and their future role as “champions of peace, stability and reconstruction of their beloved homeland, Afghanistan” was included in the preamble of the agreement, despite widespread allegations that these forces were responsible for mass atrocities.

Bonn set the stage for a transitional process driven by short-term security imperatives and accommodation of perpetrators, who became increasingly entrenched in the post-Taliban power structures.  The Emergency Loya Jirga held in 2002 to select a transitional administration is seen as a watershed moment.  It required candidates to sign statements declaring they had not engaged in war crimes, terrorism, and other abuses.  In the absence of an enforcement mechanism, many known perpetrators participated as delegates.  To make things worse, the international community invited to the ELJ a number of unelected factional leaders, who reportedly threatened other delegates. At the Constitutional Loya Jirga of 2004, reports reveal that warlords again interfered in the convention’s proceedings and secured support in elections through physical intimidation. Consequently, the constitution made no reference to transitional justice apart from Article 85, which barred individuals convicted for crimes against humanity from standing for elections. In the absence of a functional criminal justice system, however, the “conviction” requirement effectively undercut any meaningful vetting of electoral candidates.

The leading transitional justice actor in Afghanistan has been the Afghanistan Independent Human Rights Commission (AIHRC) set up during the Bonn process. In 2005, it published the results of a nationwide survey, “A Call for Justice”, demonstrating widespread demand for accountability and local perceptions that bringing perpetrators to justice would improve prospects for security.  On the heels of this process, AIHRC drafted The Action Plan for Peace, Reconciliation, and Justice, which the government adopted in December 2005. The Action Plan called for an end to impunity and provided a comprehensive framework for transitional justice with five pillars: symbolic measures; institutional reform, including vetting; documentation and truth seeking; reconciliation; and criminal prosecution. It set an ambitious timeline of three years, which expired in December 2009.

Aside from several symbolic measures, none of the AIHRC objectives have been realized in practice. Instead, a group of parliamentarians implicated in serious violations introduced an amnesty bill in late 2006 in response to the launch of the Action Plan and a Human Rights Watch report documenting war crimes in Kabul.  The law took legal effect when it was published in Afghanistan’s Official Gazette in December 2008.  Broad in scope, the law has been interpreted as linked to ongoing efforts to reconcile and negotiate with the Taliban: it not only grants blanket immunity to individuals responsible for human rights abuses prior to 2001, but also extends it to those engaged in current and future violations, if they reconcile with the government.

Ultimately, the transitional justice initiatives discussed and introduced have been either suspended or abandoned altogether. A stark illustration is the controversy sparked by the AIHRC’s documentation efforts, which resulted in the 1000 page report, “Conflict Mapping in Afghanistan since 1979.”  Its findings allegedly implicate currently serving Afghan officials in mass atrocities. Its impending release provoked backlash from warlords, and ultimately Afghan officials embargoed the report, while some commissioners and staff involved in the study were dismissed and/or intimidated.  These developments have prompted concerns for “perverse vetting”: rather than removing perpetrators from state structures, in effect ittargets those who promote a human rights and rule of law agenda.

In assessing the lack of transitional justice in Afghanistan, it is important to distinguish between the failure to prosecute and punish perpetrators (impunity) and deliberate policies that have led to their entrenchment in power structures (incorporation).  It is the combination of the two that is significant in the Afghan case. We have argued elsewhere that impunity and incorporation of perpetrators has made abuse of power endemic in the post-2001 order, which in turn paved the way for a return to violence and deterioration of security. These actors often serve as key nodes in corrupt, predatory networks formed around drug smuggling, reconstruction and security provision, and the new banking system.  Their links to the state have allowed them to operate in a highly unaccountable manner, often transforming the state itself into an instrument for personal gain. 

This climate of impunity has also shaped the character of the new state institutions. For instance, the early capture of the so-called ‘power-ministries’ by members of armed groups negotiating at Bonn has allowed their patronage networks to infiltrate government and security structures, from the ministerial level down to the district, often turning them into sites for abuse. The police, for example, have been accused of kidnapping, rape and involvement in the drug trade. In this context, the line between political and criminal violence has increasingly blurred, resulting in further political destabilization and de-legitimization of the externally led state-building effort. In fact, the Taliban insurgency has been adapting its discourse to harness these narratives of injustice and abuse for mobilization and recruitment purposes. 

In an era of resurgent demand for accountability, Afghanistan is an outlier. Why has the search for justice been frustrated repeatedly in this case? Local actors implicated in past abuses promote a narrative that frames transitional justice as an attempt to delegitimize jihad and Soviet resistance. In effect, this narrative diverts attention from individual perpetrators and abuses by implying collective complicity and equating justice with criminal trials. Practitioners and policymakers often emphasize perceived tensions between peace and justice: accountability risks causing destabilization and backlash from spoilers. This argument, however, is made in most transitional contexts and cannot explain the absence of any serious attempt to balance security and justice concerns.  Other observers see transitional justice as unfeasible given the nature of power structures in Afghanistan. In a context where many individuals who should be held accountable are also key powerbrokers it is unrealistic, they argue, to expect a weak state with a dysfunctional judiciary to deliver justice. This argument may be confusing cause and effect: the absence of justice and accountability processes is perpetuating state weakness and widespread abuse.

Another possibility may be that Afghanistan reflects the logic of the War on Terror rather than the logic of “liberal peace” interventions in other conflict-affected states.  The failure to pursue justice and accountability can be understood in the broader context of the retreat of the rule of law at domestic and international levels that has accompanied the global counterterror campaign.  When tensions have arisen between the fight against terrorism and the promotion of legitimate political authority as part of the state-building effort in Afghanistan, the former has often been prioritized at the expense of the latter. As a result, starting with the Bonn process, several opportunities to set in motion meaningful justice processes have been neglected and lost. When the UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions proposed setting up a commission of inquiry in 2003, US opposition blocked it.  Likewise, there has been little appetite for the initiatives of EU diplomats to broker an agreement for compliance with minimal standards of international humanitarian law. In this sense, impunity can be seen as reflecting a consensus project among key power-holders in Afghanistan and the convergence of their different motivations and interests.  This consensus has been justified by both domestic and international actors as necessary to prevent destabilization and advance counter-terror aims. Instead, it appears to have contributed to undermining both of these objectives.

Afghanistan’s ‘unjust disorder’ suggests important lessons for finding the right balance between the pursuit of justice and other policy goals in conflict-affected states.  In particular, it highlights the importance of early assessment and mitigation of the significant risks associated with impunity and entrenchment of perpetrators into power structures.

Marika Theros and Iavor Rangelov are Research Officer and Research Fellow respectively in the Civil Society and Human Security Research Unit at the London School of Economics.