Prosecuting Taliban War Criminals
Nick Grono, International Herald Tribune |
23 Mar 2010
Trying to make sense of Afghan politics does not get any easier with the recent arrest of the senior Taliban commander Mullah Abdul Ghani Baradar in Pakistan. Many view the capture of the Taliban No. 2, Mullah Omar’s deputy, as a boon for the counterinsurgency campaign, and indeed some leaders of the U.S.-led coalition see it as a welcome signal that Pakistan may now be turning against the Afghan Taliban.
Many others, however, including some top Afghan and international officials, interpret the development more darkly. They see it as a Pakistani gambit aimed at marginalizing the Afghan president, Hamid Karzai, and winning Islamabad a prominent seat at the negotiating table with the insurgency leadership.
What they all appear to agree on, sadly, is that talks should take priority over justice. In fact, all sides seem oblivious to the fact that Baradar is responsible for widespread atrocities, and that a failure to bring him and other perpetrators to account will impede efforts to build stability in Afghanistan.
Baradar is generally considered to have been the strategist behind Mullah Omar’s ideological might. Until his capture by the Pakistani Inter-Services Intelligence Directorate last month, he was an energizing force behind the Taliban resurgence in Afghanistan.
One of the earliest to join Mullah Omar in forming the Taliban in the early 1990s, Baradar has been accused of directing several cold-blooded massacres during the Taliban’s reign, including the summary executions of 11 personnel from the Bagram air base in 1999. He is also believed to be the lead architect of Taliban offensives that have killed hundreds of Afghan civilians over the last two years.
Despite this, it now appears Karzai had been courting Baradar as part of recent attempts to spark talks with the insurgents. The reconciliation of violent extremists is increasingly finding support among influential members of the international community. The Pakistan military wants to play a central role in any such efforts, and its move against Baradar and at least four other key members of the Taliban’s Quetta council, or shura, is an attempt to control the channels of communication with the Afghan insurgents.
Many Afghans are rightly suspicious of the Karzai government’s desire to strike a deal with the leaders of a movement that plunged the country into a period of repressive isolation, gave succor to Al Qaeda in the 1990s, and has killed thousands of Afghan civilians.
Given that counter-insurgency is about gaining the support of the people, one would have expected that bringing to justice those who have wantonly killed Afghan civilians would be a priority for the Afghan government and the coalition. But the opposite appears to be true.
Kabul recently surreptitiously resurrected an amnesty law that grants immunity to the warlords who currently rule the country and to the brutal extremists who seek to supplant them. The law may well apply to Baradar if he agreed to join the reconciliation process. This controversial “National Reconciliation, General Amnesty and National Stability Law” had languished in legal limbo since first appearing three years ago, until it was put on the books late last year in an apparent election-related deal with several of Karzai’s key supporters. The law grants blanket amnesty to the perpetrators of some of the worst atrocities, forcing victims to negotiate their claims through the virtually defunct Afghan justice system.
The United States and most of its allies have been largely silent on the law. In fact, it appears that a desire for a quick exit by NATO has stifled all discussion of the critical need to link reconciliation with accountability and to tackle Afghanistan’s longstanding culture of impunity. But expediency will not promote stability.
Fortunately, there may be another route to accountability, at least for those bearing greatest responsibility for atrocities in Afghanistan. Back in 2003, Afghanistan signed up to the International Criminal Court, and the court’s prosecutor, Luis Moreno-Ocampo, is currently considering whether to open a formal investigation into war crimes and crimes against humanity committed during the last seven years. Amnesty laws are not effective against I.C.C. prosecutions.
Until now, a key obstacle to any attempted I.C.C. prosecution of Taliban leaders has been that they have been beyond the reach of the court. But with Baradar in custody in Pakistan, the prosecutor should now launch a formal investigation and, if he believes he has evidence to justify it, seek an arrest warrant for Baradar and ask Pakistan to hand him over to The Hague. Kabul and Washington should support such an application and finally demonstrate to the Afghan people that there is a limit to impunity for those who committed the worst crimes against them.
Candace Rondeaux is International Crisis Group’s senior analyst in Kabul. Nick Grono is the deputy president of the International Crisis Group in Brussels.
International Herald Tribune