Impunity in Afghanistan? No Future Stability without Justice

Roy Gutman
Foreign Editor, McClatchy Newspapers
rgutman@mcclatchydc.com

Impunity is defined as the exemption for a person who commits a crime from punishment, harm or recrimination.  It negates the rule of law and is the evasion of due process. Most of us have never experienced it first hand. But it is the everyday experience for Afghans.  Small crooks and robbers go free; and so do big-time scoundrels and war criminals. I want to share with you a few anecdotes from my notebook.  This is not the result of an exhaustive study, just stories I picked up without seeking them out.

In January 2010, while on a month's assignment in Afghanistan, I spent four days in Gardez, southeast of Kabul on a project, living at the U.N. compound, traveling in both directions via U.N. helicopter and vehicles. It's a small town in the mountains, a lot better environs than Kabul where they describe the air as fecal dust. But Gardez is not safe; unemployment is very high, and there are no signs of investment or development.  You don't walk around the market of this town; you have a feeling that the Taliban are everywhere.

I interviewed "Ravi," a very enterprising local English teacher who had served as a translator for U.S. forces for many years, had directed a language school, and now runs a construction firm. Here's what he told me about the state of law in Gardez. Three days before we met, police in Gardez had captured three men in the act of looting and mugging. Ravi told me that he knew of the looters: because they'd robbed his brother in his house and beaten him.  The morning I interviewed Ravi, police had released the looters.

"We'd talked to the National Directorate of Security," the NDS, a cross between an FBI and a CIA, he told me. "They knew everything about them."  But the three were freed, and apparently money changed hands.  Ravi said he could have gone to police when the three were arrested and made a complaint, "but I knew it wouldn't do much good."

"People are losing trust in the government of Afghanistan," he added. "If the Taliban were running things, they would have cut off their heads.  People feared them. There was no bribery at that time.  Now it is just the opposite. " And if the people have a problem, they will refer it to the Taliban.  They are everywhere.  They are doing justice when the government won't. "

It's an outrage, but on a small scale describes what happens all over the country regularly.  Corrupt local officials not only do no justice but do major injustices.

This is the Karzai government's failed judicial system. Into this swamp the United States has introduced some more elements of disorder.

For a story I was researching, I had occasion to interview the man who served as Gardez's first police chief after the fall of the Taliban. Abdullah Mujahid had fought the Taliban and was appointed to his post by the Karzai government.  In July 2003, about a year and a half into his post, U.S. forces arrested him in what seems to have been a case of mistaken identity. He was taken to Guantanamo where he was held for five years.  Then he was released without an official apology or any compensation.  No one ever accused him to my knowledge of corruption or succumbing to bribery.  As he put it:   "I was not a fugitive or someone on the run from the government. I was a friend of this government. I was working in this government."

Among the accusations against Mujahid, is that he was suspected of being an Indian Muslim who'd fought in an earlier war between India and Pakistan. He told his U.S. interrogators he was too young to have fought in the war in question. Later, his interrogators informed him that another man of the same name  -- apparently the man who had fought in that war -- had been killed several years earlier.  A second charge was that he had contact with Nasrullah Mansour, a commander for Hezb-i-Islami, which is fighting the Karzai government in the Zurmat district in Paktia province. Then it was discovered that Mansour had been killed 16 or 17 years go.

Mujahid was not beaten in Guantanamo, nor did he witness beatings. But he described it as a place that did no credit to the U.S. government, nation or people. "This facility will leave behind a very sordid history for America," he said. Now he lives in his hometown in fear -- because the Taliban are in the ascendant, and he had fought against the Taliban. "For the past one or two years, since I was released from detention, I haven't gone beyond the U.N. compound down the main square. I haven't crossed these areas," he told me.

The former police chief man is a Tajik, an unlikely person in the first place to have joined the Taliban, who are mostly Pashtuns. I've read transcripts of the interrogations of Mujahid, and the degree of ignorance shown by the prosecution, and the lack of due process, make your hair stand up. Mujahid was not among the 66 released detainees interviewed by McClatchy journalists in a project that ran two years ago. (www.mcclatchydc.com/detainees). That's because he was still in prison.

Back in Kabul a few days later, I met a lawyer who works for the Department of the Interior, which oversees and directs the police in Afghanistan. Mohamed Taher, 38, features in a story that we posted in March on the McClatchy DC web site. (http://www.mcclatchydc.com/2010/03/14/90084/local-taliban-officials-may-...)  Unfortunately, he told me, most police are not skilled or educated and don't know their responsibilities. They don't know the law; they will do things against the law. They must develop their skills and in particular the military skills of leaders. We don't have good leaders, from the minister on down.

All this is by way of prelude.  In Afghanistan today the judicial system is deeply corrupt at the local level. First and foremost it disillusions those who want a just order and a democratic state. Moreover the mentors to the Afghans have run a detention policy that lacks due process, fairness, or compassion and has arrested some of those same friends of the democratic order. Mujahid perhaps was not an ideal police chief - he had had no training and did not rise through the ranks, and would not qualify as the next minister of the interior.  But the American military had no grounds for arresting him and detaining him for five years.   There are hundreds of other Afghans like him.

Lest anyone think the Taliban are going to bring law and order, I direct you to a story that we posted on the McClatchy web site in mid-March, in which I wrote:  "The Taliban have issued a set of rules on the treatment of captured prisoners. No one is to be executed without the express orders of Mullah Omar, the rule says. (http://www.mcclatchydc.com/2010/03/14/90083/weve-met-the-enemy-in-afghan...)  But I came across a case of two Afghan security personnel who were abducted, held, tortured and executed, clearly without any due process. Afghanistan today is truly, as Milovan Djilas one said of interwar Yugoslavia, a ‘land without justice.'"

Let me focus on impunity for war crimes.  A war crime is one that takes place in time of war and is defined under the laws of armed conflict. If you want to know more, see the writings of international law professor Michael Scharf.  For a journalist's version, here's the book to have: Crimes of War: What the Public Should Know (edited by Roy Gutman and David Rieff, first edition by W. W. Norton, 1999).

Many might like to forget history in a country that's been at war for 30 years like Afghanistan. But for the victims of war crimes, and the survivors, that isn't easy.  Violence done to people as groups, whether Hazara, Tajiks, or Pashtun, festers.  We know from the former Yugoslavia that the memories of victimization carry on from generation to generation, as oral history, often magnified many times from the original crime, especially if there's been no exhaustive investigation, no judicial process for resolving it, no agreement on what happened, who was responsible, or who were the victims. 

Afghanistan has impunity on the petty scale as I already described, but also on a grand scale, and it is all the bigger because no one in power will acknowledge it, and there seems to be no one outside that will bring it onto the stage of justice.

There have been five wars in Afghanistan:

  • from 1979-1989, the American-backed war against Russian occupation
  • in 1989-1992 the war to unseat the proxy government left behind by the Russians
  • in1992-1996, the civil war between the Mujahidin, who were installed with the help of the U.S. State Department, and Pakistan-backed proxies trying to unseat that government with the help of Pakistan's ISI and by extension the CIA
  • in 1996 to 2001 the war between the Taliban who tried but never were able to vanquish the remnants of the Mujahidin government, with its charismatic leader, Ahmed Shah Massoud; and
  • from 2001 to the present the war between the U.S. installed Karzai government and the remnants of the Taliban regime.

Throughout these wars, in some of which the CIA played the leading role, in others the State Department, the U.S. attitude was consistent.  The U.S. showed no interest whatsoever in investigating, pursuing or prosecuting crimes and atrocities - some of which, under the Taliban, bordered on genocide. Nothing was said about what Afghans did to captured Soviets; and little was written or said about what Soviets did to Afghans.        

The modern era really began there 1989.  Based on my experience in the Balkans, I set out in my newest book, How We Missed the Story: Osama bin Laden, the Taliban and the Hijacking of Afghanistan (U.S.I.P. 2008) to record carefully and sort out the evidence about every allegation I heard.

In 1997, in one of their biggest single blunders, the Taliban seized Mazar-i-Sharif in the north, imposed Sharia law and acted like conquerors.  But they had fallen into a trap. Thousands of their troops were captured by a local warlord, Malik Paklavan, who had seized power and temporarily toppled a well known power of northern Afghanistan, Gen. Abdul Rashid Dostum. The Taliban prisoners were loaded into containers, where they suffocated, were tossed into wells and then buried in mass graves.  The U.N.'s special rapporteur for human rights determined that some prisoners had been "lined up and mowed down with heavy caliber machine guns."  The U.N. called for an investigation. But the U.S. refused to put any money into it, or to put the spotlight on the crimes and the U.S. lost credibility with the Taliban from that moment on.           

In 1998, the Taliban again conquered Mazar-i-Sharif.  The man who bore responsibility for the slaughter in 1997 was Malik Paklavan, an ethnic Uzbek.  But in 1998 the Taliban were determined to take vengeance on the Hazara. It was a bloodbath, ordered from the top. They slaughtered at least 2000 innocent civilians, as many as the soldiers they lost in 1997.  Refugees fled with startling eyewitness stories. Almost no one would listen to them. It got almost no coverage -so I've carefully reconstructed it in my book. One reason is that the "killing frenzy" in Mazar-i-Sharif occurred simultaneously with Osama bin Laden's operation to bomb two U.S. embassies in East Africa, which killed over 200, including 12 Americans, and wounded thousands. Once again, the Clinton administration remained silent. There was never an investigation. 

Fast forward to 9/11 and the U.S. intervention. Late in November 2001, after Afghan and U.S. forces defeated the Taliban and their allies, General Dostum, back in his traditional seat of power in northern Afghanistan and took charge of the transport of thousands of Taliban prisoners to the same desert location, Dasht I Leili, in northern Afghanistan. Dostum had them loaded into containers, even as his mutinous deputy had loaded Taliban into containers four years earlier. Hundreds, probably at least a thousand, died of suffocation or were shot. I helped research this story at Newsweek, which broke the following August, and the U.S. government obfuscated or refused to comment - the Pentagon even expressed doubts that it had happened (see Babak Dehghanpisheh, John Barry, and Roy Gutman at http://www.newsweek.com/2002/08/25/the-death-convoy-of-afghanistan.html). Again there was no investigation.

Later, early in 2008, Gen. Dostum ordered the removal of the graves. We at McClatchy sent a reporter there and he attested to the empty holes with scraps of clothing or human remains still scattered about. (http://www.mcclatchydc.com/2008/12/11/57649/as-possible-afghan-war-crime...) Dostum was out of the country at the time but deputies, who had broken with him, said that Dostum had destroyed the evidence. The U.S. embassy had no comment. The U.S. military had no comment. The United Nations had no comment. The Afghan government and military also had no comment. There was no investigation.

What is the relevance of these atrocities today?  I asked that question during the month I spent in Kabul in January 2010/ Here's the view of Vahid Mojdeh, a former Taliban official, who maintains links with the Taliban leadership.  "That massacre of Taliban (at Dasht I Leili) was the base or foundation for all the fighting that is now going on.  General Dostum did this work.  But the Taliban do not only blame Dostum. They also blame the Americans, because they were present.  They claim the Americans killed 5,000 Taliban to take revenge for 9/11 - against people who knew nothing about 9/11." 

Mojdeh thinks it is possible that the Taliban would not have returned to the fight if this had not happened. Pashtuns, he pointed out, if there is no admission of guilt in a crime, want revenge.  I asked him: Can the Taliban make peace with a government of which Dostum is a member?  I don't see the possibility, he said.           

To my amazement, U.S. officials, at least in the military, accept this judgment.  The massacre "absolutely...has increased (Taliban) motivation," a senior general of the U.S.-led International Security Assistance Force told me.  "Those kinds of things just thicken the hatred and cause more people to join."  As for General Dostum:  "When leaders like that do stupid things like that, they only serve to hurt what we're trying to do out here." He added: "if some of these guys are fighting because of this reason, by stuffing some of their relatives into containers, and then dumping the containers out, that's a problem. That's very believable.  And that will cause others to join the fight."

Footnote: Gen. Dostum now has been appointed chief of the Afghan army. And sometime in January, without any public debate and at a point parliament was not in session, President Karzai is reported to have issued an amnesty for him and others against whom war crimes charges could be placed.

My conclusion is that the problem of impunity, not only for General Dostum, but also for the Taliban leadership and Dostum's one time deputy, remains hidden, but it is a time bomb. Unrecognized atrocities are an issue at the center of bringing stability to Afghanistan. If the Afghans won't address the issue,  we the United States should.  If we won't, then the International Criminal Court should. 

I think there's no question that Afghans need justice, they want their lives back; and they want the war to end. If this is to happen the U.S. will be the major instrument. But the U.S. must examine its own record and it must not be a party to impunity, to covering up past crimes.  Not if it wants to extricate itself from Afghanistan any time soon.

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