Crime & Justice, Headlines, Human Rights, Middle East & North Africa

DEATH PENALTY: First War Crimes Trial Exposes Weak Afghan System

Ahmad Shafiq Hamdard - The Killid Media Group*

KABUL, Apr 28 2006 (IPS) - Afghanistan’s intelligence chief in the pro-Communist era has been sentenced to death for extra-judicial killings, raising troubling questions about the current judicial system and its capacity to investigate and prosecute violations of human rights in a fair manner.

Assadullah Sarwary, 64, has filed an appeal in mid-March to the Special Appeals Court for the Crimes Against Internal and External Security. He is the only senior government official to be tried for past human rights abuses in Afghanistan.

He was the secret police chief under the Soviet-backed Noor Taraki regime of the late 1970s, and languished in prison for 13 years until his trial began in December 2005. He was convicted on Feb. 25.

International rights groups, including Human Rights Watch, the United Nations and Amnesty International, condemned the trial as flawed and have called on President Hamid Karzai to reform the country’s judicial system. Moreover, they have called for an end to the death penalty in the nascent democracy.

In February, Chief Judge Abdul Basit Bakhtiyari told Sarwary, who human rights groups said was not provided legal counsel, that he was being “sentenced to death for killing hundreds of Muslims and mujahideen in the feared Communist prisons under your control”.

Sarwary was charged with “plotting against the Islamic government of Afghanistan”. The case was tried in the National Security Court, a special branch established by the Supreme Court for crimes committed during the war years.

The prosecution and defence presented their cases in one day. United Nations officials and Human Rights Watch say they believe the government provided shoddy evidence because it knew it would get the conviction it wants.

International rights groups point out that what should have been a trial to set a precedent ignored standards of law and strict processes like the opportunity to challenge the evidence. The U.N.’s High Commissioner for Human Rights said in a written statement that he observed “serious structural flaws”.

Amnesty International (AI), too, “expressed concern that he (Sarwary) was not provided with adequate safeguards”, it said in a written statement.

A report by the High Commissioner for Human Rights dated Mar. 3 stated that Afghanistan’s “judicial sector remains chronically weak”, and “incapable of meeting international obligations” under humanitarian and human rights law.

Michael N. Shaikh, a Kabul-based researcher with Human Rights Watch, told IPS this week that he believed it would have been relatively easy for the government to have organised a coherent, credible and straight-forward case.

“Putting the victims at the centre of this trial would help set the record straight about what happened under the early years of the PDPA (communist regime) as well as provide victims and their families an opportunity to deal with the past and shed some of the weight of their trauma,” he said.

The international rights groups urged the Karzai government to immediately implement a blueprint for transitional justice, approved late last year. It seeks to establish a system of justice and accountability that includes establishing documentation centres and chronicling the rights violations of the past 30 years.

The plan also calls for a monitoring system to prevent human rights abusers from holding senior government positions and sets out the possibility for taking them to court. However, the plan does not go beyond the promise that there will be no amnesty for war criminals.

At present, Afghanistan’s criminal code does not have provisions for addressing war crimes. The charges against Sarwary did not take into account allegations of systematic rights violations leveled at the Communist-led governments of Taraki and Hafizullah Amin.

Moreover, HRW expressed “grave concern” about the use of the death penalty in Afghanistan. Since 2001, at least 25 death sentences have been sent to the president’s office for a decision on execution or commutation. To date, one person, Abdullah Shah, a Taliban military commander, was secretly executed in October 2004.

AI in its 2005 country report said his trial was not open to the public. Shah, like Sarwary, was denied basic rights of defence. Charged in connection with multiple murders, he had no legal counsel and was not allowed to cross-examine witnesses. According to AI, the court reportedly imposed the death penalty under political pressure.

In 2003, President Karzai told AI’s secretary general that there would be a moratorium on executions while judicial reform is being carried out. Instead, Shah was hung.

HRW researcher Shaikh said in an interview that he believed it was prescient. “Seeing that the Afghan legal system is based on the Shariah and the death penalty is prescribed for some crimes it is unlikely it will ever be banned,” Shaikh said.

Last December, the Afghan Independent Human Rights Commission and the office of the Commissioner for Human Rights hosted a conference on truth-seeking and reconciliation. This was only the second time that members of civil society, victims and others across the country had sat down together to address the past and discuss the future.

Afghan rights activist Muhammad Aatif told Killid News Media that there are many war criminals in Afghanistan who are not being prosecuted. Nearly a million Afghans were killed and the country devastated by fighting over three decades.

“The reality is this that if a criminal is in the government or has influence, no one says anything. But when the individual doesn’t have power, he is put on trial,” he added.

(*Released under arrangement with The Killid Media Group)