Human Rights in Afghanistan
Author: Elizabeth Griffin is interviewed by Joe Schumacher
Originally Published at Peace and Conflict Monitor on: 02/09/2004
What did you do in Afghanistan?
I was asked by Amnesty International (AI) to go out there in the spring of 2003 to do research for them in what became two reports on the Afghan criminal justice system, with a focus on gender issues.
Why did they pick you?
I’d worked for AI previously as a researcher in the former Yugoslavia. It might be that the report I wrote about Justice reconstruction in Afghanistan is quite a different thing for AI, its not a classic report that just documents human rights violations and asks the government to do something about the issue, its more a structural report. It examines the processes and structures that need to be put in place to reestablish a justice system in a post conflict period. So in some ways its very similar to the work I did for AI in Kosovo just after the Nato interventions, so that might be why.
How does Amnesty International hope to use this information?
Well the information is being used to lobby the International community, including Security Council (SC) and the Afghan transitional administration. One of the little highlights, I suppose, of the way in which the report is being used, was that there was a security council mission to Afghanistan about a month and a half ago and a summary of the report was circulated to all members before they went to Afghanistan and I hope what happened is that they asked follow-up questions when the SC delegation was on the ground. Apart from that, AI is using its normal membership network in order to put pressure on governments to provide the political will and resources to improve the Human Rights and humanitarian situation in Afghanistan.
What were the main findings of the report?
The main findings can be found in the report, ‘re-establishing rule of law’ and the second report, ‘no one listens to us and no one treats us as human beings: Justice denied to women’. Well the major findings, in brief, were as follows; there is a justice system up and running in Afghanistan in the post Taliban period, however it is very very dysfunctional. We found real problems with the way in which the justice system was able to enforce its national Human Rights (HR) law. More specifically the Police, Judiciary and prison authorities lack in training or knowledge of International HR law. They don’t have the resources to process criminal cases quickly, so we saw lots of violations of the rights to a fair trial, lots of arbitrary detentions. Particularly concerning was the issue of the detention of women for consensual heterosexual sex.
Did you make any recommendations?
There are extensive recommendations. Without having the report in front of me…the recommendations were basically aimed at the international community generally. One of the big issues for us was impunity, the fact that thus far there has been no political will on the part of the international community to devise a mechanism to support Afghan wishes to bring to account those persons responsible for past HR violations. So there was a major recommendation on that. In addition we were obviously asking for donor commitment to be met, because what we found was that the International community at the end of the intervention and during the intervention had promised a certain level of financing in order to ensure that a justice system could be reestablished. However they hadn’t followed up on those promises. The other recommendations were things like that a juvenile court should be established, a family court should be established – so that vulnerable groups in Afghan society could receive justice, as well as many other recommendations relating to right to a fair trail and arbitrary detention
So that’s really creating a first world judicial infrastructure, Was there a timeframe for implementing these recommendations mentioned?
I think that one of the major themes of the report and one of the things AI hopes to achieve with the report is to ensure that the International community understands that when it intervenes militarily in this way there has to be a long term follow up. The time frame for me is all about ensuring that because Iraq happened very soon afterwards the focus of attention does not divert from Afghanistan. Obviously reestablishing the rule of law in Afghanistan will take a long time. Its not something that can be done quickly – indeed all the reconstruction tasks in Afghanistan will take a long time, humanitarian assistance, reconstruction of the infrastructure. So what we’re really asking is that the international community doesn’t forget the promises made to Afghanistan.
Was it scary?
There were certain moments when I did feel scared, yes. Obviously as a young western woman I stuck out in Afghan society as a foreigner. It means that when your walking on the street people stare at you, men give you hostile looks and at some moments I was somewhat scared. Though I have to admit that the scariest thing for me is that I hate flying and we had to fly in very small chartered planes, 5 seaters, and I’ve never experienced turbulence like that in my life and I was so scared
Did you have big burly bodyguards?
No AI has a policy that we will not use any form of protection when we are carrying out our research, it would undermine the neutrality and independence of the organization: so no I was researching by myself with an Afghan colleague who was to replace me and sometimes another international colleague.
Were the authorities cooperative?
The authorities were very cooperative. Again, the way in which AI works in Afghanistan is very good. There was no sneaking around, the way in way in which we operated was open, transparent and before going to visit any place of detention, any courtroom, any governmental official we would go and ask permission, get the relevant permission letters and generally introduce ourselves and tell the authorities what we were doing. In that way we facilated cooperation and I never had any problems with the Afghan authorities, they were fully cooperative.
Has the Human Rights situation improved in Afghanistan since the fall of the Taliban regime?
I think it’s very difficult to measure a human rights situation. I think HR violations are still occurring, and particularly against women the HR situation is extremely concerning. However, I think there were many practices, which we saw under the Taliban: secret police, the way in which they were operating, summary executions in public; those practices have now ceased. However the nature of violations are very different now, where as you had a very strong oppressive regime you now have a number of non-state actors, Afghans call them warlords who are perpetuating very serious HR violations.
Can you tell me about the Zena crimes?
The concept of zena is criminal offences by women and men; basically you could refer to it as sexual crimes. It’s a criminal offence that doesn’t exist in written or statutory law and it incorporates both adultery and running away from home, which is a crime of leaving your partner or leaving your parents because you are unhappy with the situation. I interviewed a lot of women in detention and found there was a lot of young girls who had run away from their families because they had been subject to abuse or they had been sold to a much older man who they’d been forced to marry, and I’m not talking about arranged marriages, I’m talking about a forced marriage. Women who try and get out of that situation will often end up being accused of zena crimes. Zena crimes carry a penalty of around 3 to 10 years. I found women who had been sentenced of zena crimes and are now serving these kinds of sentences.
How can this situation change, the new Afghanistan constitution was signed a few weeks ago Is that going to deal with such issues?
Well there is a number of concerns relating to the constitution. Some of the recommendations that we put in the report were that human rights be fully enumerated in the new constitution, more specifically we wanted fair trial guarantees to be included, abolition of death penalty and of course an unambiguous non discrimination clause specifically mentioning the rights of women in Afghanistan. Its concerning that the constitution has not gone as far as we recommended in our report. However on a more positive note, the Afghan Human Rights Commission has a legal basis under the constitution. While this does not constitute the remedy under International human rights law that we were hoping for, the work of the HR commission is extremely important so we’re happy to see that there is a provision for them.
Do you see International HR law playing a part in Afghanistan?
Well International HR’s law is a part of Afghan law so it has to play a part in Afghanistan’s future. Interestingly enough in April of 2003 Afghanistan ratified the convention of elimination against all forms of discrimination against women (CEDAW) with no reservations, which is very interesting for an Islamic state. This is the Afghan government directly acknowledging that it sees a role for International HR’s law in the future of Afghanistan.
Given the form of Islam that has evolved in Afghanistan is it realistic to expect incorporation of western notions of HR’s in Afghanistan’s legal system?
I think what needs to happen in Afghanistan is a dialogue on that particular question. I think the question of cultural relativism Afghanistan in relation to International HR’s is something that legal professionals and other professionals need to determine themselves. I think one of the concerns I saw on the ground was that Afghans were not given space to debate these issues in a meaningful way.
Are there Afghan scholars involved in this?
Yes, I visited two universities in Afghanistan, the University of Kabul and the University of Marzarri Sharif. Both had law departments and within those both had HR’s progammes running. I never found that HR’s was something that was totally rejected. There was a number of specific parts of HR’s law that were problematic for Afghans – specifically right to marriage and women’s rights in relation to marriage. However generally I never felt any resistance to international HR’s law amongst those people.
Changing tacks somewhat. The Idea behind the light footprint approach in the UN operations in Afghanistan, can you comment on that?
Well the light foot print approach is something that was advocated by Lahti Brahmini, who is now the special representive of the Secretary General in Afghanistan. It’s basically an approach to peacekeeping that advocates for a light expat footprint. That means a limited number of international staff on the ground it also means, in contrast to the UN missions in Kosovo and East Timor, the United Nations does not play a formal role in the administration of the Government or the territory. Essentially the focus is on an Afghan lead transitional process.
You say security is the main issue in Afghanistan, how can security improve?
My own feeling is that security can only improve if there is a real and meaningful expansion of ISAF, the international security assistance force outside the Kabul area. The Security Council has extended the mandate of ISAF to include operations outside Kabul, however sending states, governments have not committed the troops necessary in order to make that a reality, that’s the first thing that needs to be done.
Are the mandates themselves not up to the task?
Well the mandate of ISAF was initially not to operate outside Kabul, we now have a new mandate, however the concern is that given the commitments of NATO and other governments of their troops in countries like Iraq and the Balkans, that unfortunately Afghanistan is being left behind in terms of boots on the ground.
Given that notions of what is a state may be different in Afghanistan, should the UN and the Western Alliance be engaged in state building?
First of all it has to be clear that this is solely my personal opinion. I think that when the International Community intervenes militarily wherever that may be there is a correlating responsibility to follow that up and assist in reconstruction, not only of the state but all of the infrastructure that is required in order to ensure a stable community that is respectful of human rights. So yes I do believe there is a role for the UN and I think that the UN is essential rather than the unilateral actions on the part of various governments. I do think that when states intervene and engage in regime change which is what they did in Afghanistan, they cant just withdraw and forget the place – they have to give the political and financial commitment over the long-term in order to ensure that society does see some improvement.
Whatt steps would you like to see happen to improve the situation in Afghanistan?
Security is the first thing that needs to be improved because until you have a basic level of human security outside Kabul you can’t do anything else. You can’t engage in reconstruction of the schools the infrastructure, you can’t distribute humanitarian assistance, and you can’t reestablish judicial systems, police, and military, courts, whatever. Security is the number one for me. Further to that, after my own personal experience would be concrete measures to improve the situation for women in Afghanistan, specifically legal and social protection mechanisms being put in place to ensure that women are not subject to the systematic violations of HR’s that they were, and still are, the victims of now.
Have there been any analysis of the numbers needed to make Afghanistan secure?
Your talking thousands.
How should the powers that be deal with the warlords, do they bring them into the fold?
As a HR’s advocate I have a real problem of including warlords in the political process. There is evidence, which suggests that a number of these warlords were involved, implicated or directly involved in a perpetuating HR’s violations in the past. Certainly my research indicated that they are responsible for HR’s abuses at the present time. Unfortunately a choice has been made by the US and to a certain extent the UN mission in Afghanistan to include those people in the process.
Isn’t that only a pragmatic necessity? Is it realistic grafting on democracy onto a country like Afghanistan, given that left to its own devices it would probably be a loose confederation of almost tribal fiefdoms, and it has been that way for centuries?
There should have been a mandate and a real effort to deal with this in the immediate fall of the Taliban. At that point there was a window of opportunity to ensure that the warlords did not reconsolidate power in various areas. At that point if there had been an international peacekeeping mission outside the Kabul area we would have had a very different situation. I would have to concede at this point of time its going to be extremely difficult.
What’s your view of the Bonn agreement?
Unfortunately the criticism of the Bonn agreement is that it is so externally imposed, and I think that has validity. I think the time frames were unrealistic because the timeframe calls for a constitution in the fall of 2003, they just made it with a constitution in the January of 2004, and then the elections were scheduled for January 2004, they’re not going to meet that timeframe. I think essentially when it comes to Human Rights the Bonn agreement has some strong provisions on HR’s, so I’m not necessarily critical of Bonn as an agreement I’m critical of the lack of resources and the lack of political and financial will to ensure that the Bonn Agreement can actually be put into practice on the ground.
But it’s ongoing…
Afghanistan is at a crisis point now, the security situation is again escalating out of control there is major political division, fighting going on around the country.
The media is picking up on this; do you see pressure building in the corridors of power in Washington and Whitehall to change the approach?
I don’t I think the focus is on Iraq.
Will we know if it fails?
I think we will know if Bonn fails, I think what will happen is that we will see the Afghan transitional administration may well collapse and the country may well descend into chaos. If there are no elections this year again Bonn could be doomed.
I was looking on a Afghan website and they have lots of rosy pictures of voter registration, so there is hope still.
Well let’s hope there are elections, but lets also hope that the elections are legitimate and inclusive. There are major issues in terms of registration, while the UN is doing its best to register voters at this point in time, the UN is concentrated in urban centres, it is extremely difficult, not just because of the conflict, but logistically to get out to some of the outlying areas. There is also the issue of how to register women sensitively. So my fear is that voter registration is won’t include the entire population and the legitimacy will be undermined. There is also an increase of politically motivated violence and voter intimidation, all of which could undermine the election in Afghanistan.
If there is failure in Afghanistan does it jeopardize the perception and the future of UN peacekeeping?
Bio: Elizabeth Griffin is engaged in teaching and research in the field of international human rights law and the international law governing peacekeeping operations. She has six years field experience primarily as a human rights practitioner working within the context of complex emergencies and peacekeeping operations. She worked with the United Nations (initially at the International Criminal Tribunal for the former Yugoslavia and then with the United Nations Mission in Kosovo), as a Researcher for Amnesty International and for Save the Children during the war in Bosnia. She has also acted as a consultant for the United Nations, the Council of Europe and the UK FCO. She is currently conducting doctoral research into the international human rights obligations of the UN Transitional Administrations in Kosovo and East Timor. firstname.lastname@example.org