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WAR CRIMES AND VIOLATION OF HUMAN RIGHTS IN AFGANISTAN

Author: Tanishka Jain, I year of B.A.,LL.B(Hons.) From Maharashtra National Law University, Nagpur.


INTRODUCTION

Afghanistan, the strategically located landlocked Asian nation had been the homes of the rulers who once ruled from the Indian Subcontinent to the Plains of Siberia. It is one of the most ethnically diverse countries in the world. But in the last 40 years it has been known for all the wrong reasons, that is, being the least happy country, home to the Al Qaeda, Taliban, Islamic States of Iraq and Syria- Khorasan province (ISIS-K) terrorist group, having one of the highest birth rates in the world as well as the highest infant mortality rate in the world. It is also the place where the women live in an extremely restricted lifestyle and the incidence of child marriage is high. It is a necessity to know the root cause of this problem. The war-torn country has seen a terrorist attack in some part of the country almost every day. The threat emanating from the country is not only a threat to Afghanistan itself but also to the world.


The violation of human right has a domino effect, that is, people have a poor lifestyle, devoid of the basic rights and such a situation also creates an environment for the growth of radicalization and extremism, who in turn does human rights violation again and the process goes on. Tackling terror without the betterment of the people itself would be a futile attempt. So, it is a necessity to know about the condition of the Afghans to get an understanding about how to tackle terror and to bring in a better world order.


DEFINITION OF HUMAN RIGHTS

Rights we have simply because we exist as human beings - they are not granted by any state. These universal rights are inherent to us all, regardless of nationality, sex, national or ethnic origin, colour, religion, language, or any other status. They range from the most fundamental - the right to life - to those that make life worth living, such as the rights to food, education, work, health, and liberty. This right is inalienable and universal that is it cannot be taken away. They are indivisible and interdependent and equal and non- discriminatory.


According to Mark Frezzo, “Human rights are a set of protections and entitlements held by all members of the human species—irrespective of race, class, gender, sexual orientation, cultural background, or national origin”


Human rights are a set of inalienable right and the rights that must be enjoyed by everyone for being part of the Human species irrespective of race, caste, sex, gender, culture or nation.



GRAY AREAS

  1. Lack of neutral Assignment on the role of external powers in the rise of Islamic Fundamentalism in Afghanistan.

  2. Fate of Afghan refugees outside Afghanistan.

  3. Legal action taken against the human rights violators in Afghanistan.

  4. Treaties signed concerning Afghanistan in the hope of bringing back peace in the country.


WHAT IS THE ROLE OF EXTERNAL POWERS IN THE RISE OF ISLAMIC FUNDAMENTALISM IN AFGHANISTAN?

Definition of Islamic Fundamentalism

According to dictionary. Com, Islamic Fundamentalism is, “the movement that has gained momentum in recent decades within several Muslim nations. Islamic fundamentalists oppose the infiltration of secular and Westernizing influences and seek to institute Islamic law, including strict codes of behaviour. They also target political corruption in Muslim nations”.


The term Islamic fundamentalism according to the legal dictionaries, “refers to a religious movement that is loosely structured, but whose intention is to induce Muslims to return to the traditional teachings of Islam as a way to reform their societies, establish an Islamic state, and deal with the many internal and external challenges they face.”


According to Graham Fuller, “it is believed that Islamic fundamentalism is a subset of Islamism rather than a distinctive form of it, and to him, Islamic fundamentalists are “the most conservative element among Islamists.” Its “strictest form” includes “Wahhabism, which is sometimes referred to as salafiyya. … For fundamentalists the law is the most essential component of Islam, and it leads to an overwhelming emphasis upon jurisprudence, usually narrowly conceived.”


Islamic Fundamentalism is the extreme interpretation of Islam and they believe in a form of Jurisprudence that was perceived centuries ago and they want to impose that society, even today without any elements of modernization.


Role of foreign countries

Pakistan, USA and Saudi Arabia have the main responsibilities for the spread of Islamic Fundamentalism in Afghanistan.

Pakistan after getting divided in 1971 suffered from an identity crisis. Islam became a medium of national rejuvenation. The country underwent the process of Re- Islamisation during the regime of Zia Ul Haque where the authority and influence of religious institutions increased. Number of Madrassahs in the country increased. General Zia went to that extent that he got support from religious scholars that he was able to bypass the democratic institutions, such as the elections and the parliament and got absolute power vested on him.


When the USSR invaded Afghanistan, General Zia got help from Saudi Arabia and the United States to set up various fundamentalist organization which would later be terrorist organisation to do Jihad against the godless Soviets. The US was only concerned with winning the war and also spent almost 20 years printing books that had violent contents. But the Saudi Arabian government promoted sectarian views.


The meaning of the term Madrassah changed, which was once a place for higher education became a place for religious Extremism and breeding ground for terrorists. At those times more than a million students studied in the Madrassahs in Pakistan. The rise of Taliban can be directly attributed to this fact. The Taliban was a group of students under Mullah Umar.


The Madrassah system became the backbone of rural education as millions of Afghans took refuge in the country. It is in these Madrassahs that jihadi training and education began. Various countries from the world Muslim League supported the jihadis during the war against the Soviets. The Americans supplied them with cutting edge weapons, to support its political cost but it became self- destructive as America became largest victim of crimes committed by the Jihadis which the Washington never wanted, that is, the 9/11 attack.


USA also played a big role in the furtherance of Jihad in the region as in post 9/11 operation and war on terror led to two full blown wars, both in the Muslim countries and the humiliating losses and crippling sanctions led to the death of many people due to hunger and poverty. This also fuelled more Fundamentalism in Afghanistan.


So, it can be conclude that foreign had role in the rise of Islamic Fundamentalism in Afghanistan.


My suggestion is that before the things go out of hand these Fundamentalist groups should come back to the basic principles of the prophet that promotes peace and also denounces anyone who uses armed conflict as a means to an end.


WHAT IS THE FATE OF AFGHANISTAN REFUGEES OUTSIDE AFGHANISTAN?

Definition of Refugees

Refugees according to the Google dictionary is “a person who has been forced to leave their country in order to escape war, persecution, or natural disaster.


According to the UNHCR, “Refugees are people who have fled war, violence, conflict or persecution and have crossed an international border to find safety in other country.”


Refugees in Pakistan

Pakistan received the largest chunk of refugees from Afghanistan throughout the course of war. The situation of the Afghan refugees is bad. Even though they have access to the same standard of education and healthcare as that of a middle-class Pakistani, but they can rarely manage two meals in a day.


Increase in number of refugees means more mouths to feed as a result more resources to be shared with them. Local people’s perception about Afghan Refugees have worsened with people blaming them for various terrorist attacks and there are also reports that these refugees faced increasing harassment from the police sometimes even preventing them to get a good livelihood.


Refugees in Islamic Republic of Iran

Iran hosts more than 1 million refugees mostly Afghans, according to UNHCR. Iran have given access to education for all refugees and have also allowed undocumented child to access the same. The fees for both, their citizen and the refugees are the same. They also got access to free healthcare as it is received by all its citizens. But they are allowed only temporary work permits for one year.

The problem with refugees is that there was no formal process to integrate the Afghan Refugees into the Iranian Society, as a result even after staying a long time in the country, they are still called refugees. The acceptance of refugees from poorer countries in the society is low.


Refugees taken by the US

US have been one of the largest receivers of Afghan Refugees. According to the Doha Agreement between USA and the Taliban, it was decided that all Afghan refugees, mainly those who worked in support of Government forces or various Government officials would go to the US airbase in Doha.


Reports suggest that initial living condition is very poor. They are facing a desperate and unsanitary situation on arriving at the US base in Doha. There was no air conditioning, no water, poor services in the camps. USA wants to bring all of them to their mainland. The number of refugees is low as compared to Iran and Pakistan. Even though the hate crimes are on the rise, the position of refugees here are far better than many countries around the world.


Refugees taken by other countries

Countries like UK and Canada are also taking refugees in a greater number after the Taliban takeover of Kabul. But the European union countries are taking only those who helped their military and not others as the European leaders want to avoid another refugee crisis as happened during 2015 and 2016 during the crisis in Syria.


India have also devised a special visa scheme for the Afghans, who want to flee the country. They will be provided with a temporary visa of six months.


Many countries have come forward in these though times but the response is inadequate as many people who want to leave the country are unable to leave and the powerful nations are not willing to take much refugees and those who are taking refugees in large number have a limited- resources. So, the role of UN becomes more and more important to have a good co-ordination between the countries, so that the helpless refugees get support without distinction to which country they are going to.


WHAT WERE THE LEGAL ACTIONS TAKEN AGAINST THE HUMAN RIGHTS VIOLATORS IN AFGHANISTAN?

Definition of War Crimes

War Crimes according to the google dictionary is “An act carried out during the conduct of a war that violates accepted international rules of war.”


The Legal definition is “Acts that violate the international laws, treaties, customs, and practices governing military conflict between belligerent states or parties.”


Oppenheim defined four different kinds of war crime: “(1) violations of recognized rules of warfare by enemy armed forces, if carried out without orders; (2) hostilities committed by individuals not members of the enemy armed forces; (3) espionage and war treason; and (4) marauding acts.”


War crime is the crime committed during the military conflicts which are against the principles of war and violates international laws and treaties.


Situation in Afghanistan

Trial of war crimes cannot take place in Afghanistan. The western supported government could not claim more than 60 or 70 percent of the total land, at the height of its rule. The then Afghan Government, even though were a signatory of International Criminal Court, could not enact any legislation concerning the guidelines of ICC. The law-and-order system in Afghanistan is in face meet some standard of the west but not in practicality.


The police system in Afghanistan was large consisting of about 80,000 personnel but there is corruption in their ranks and also, they do not have unchallenged jurisdiction. Private and local militias also have the


power of maintaining law and order and also have a parallel jurisdiction and almost have the same power though unofficially. Thus, showing the power of warlords in the system and the unwillingness of the government in Kabul or the foreign countries to deal with these corrupting elements.


The Judicial system was not very powerful. The instances of forced confessions are high and the pre-trial detention, which is legally allowed for a month but in practicality it was for a very long period. The prison System was underfunded. The judiciary, according to the constitution was an independent body but in practise the appointment of the Judges is not independent. The post can be brought through political power or by giving illegal money earned by trading drugs. Good Samaritans who flagged off the corruption were either removed from the post or get themselves killed. Very few had university degrees and have access to the judgements of the Supreme Court. This had led to the increase in power of jirgas and shuras, whom the people consider to be more trustworthy and cheaper ways of getting justice.


The political willingness of Kabul in prosecuting the war criminals was also not there. They had put blanket amnesty on war criminals of the civil war era. The supporters state that if they were brought to justice, it could have led to another civil war but the truth was that without the support of these anti-Taliban warlords, the Government at Kabul would have no strength.


America during the entire time of the occupation kept on ignoring the human rights violation in the country by their allies, to keep them as a partner in the fight against the Taliban. One of the instances where the favouritism of the west was laid bare was:


“ Special forces commander Dan Quinn was relieved of his command and withdrawn from Afghanistan after he beat up an American-backed militia commander for keeping a boy chained to his bed as a sex slave.”


The Americans argued that the child abuse and violation human rights is a matter of Afghan domestic laws but the above incident also raises eyebrows.


Another reason for non-punishment of crime is that when the USA first invaded the country, in order to get a quick solution got alliance with strange people like General Abdul Rashid Dostum and Mohammed Qasim Fahim who were responsible for some of the worst violation of human rights in the country. The government allayed with the warlords to win elections. Mr. Karzai even allayed with Mr. Fahim in the 2009 elections as his vice-presidential mate.


The International community in the entire twenty years have never made the human rights violation in the country a big issue. The former warlords continued to commit crimes with impunity, protected by their allies or protection of the government or foreign powers. This has also led to the fact that the Government was losing its legitimacy.


These are not the only options for the prosecution of war criminals. The other option is the application of universal jurisdiction by the third countries. UK and Netherlands exercised Universal Jurisdiction on people who were accused of crime against Humanity in their countries. The first trial for the crime of torture was held in July 2005, against Zardad Faryadi Sarwar, a former Hezb-i-Islami commander, who was sentenced to 20 years in prison in the United Kingdom for conducting a campaign of torture and hostage-taking in Afghanistan between 1992 and 1996. On October 14, 2005, a Netherland court sentenced “Hesamuddin Hesham and Habibullah Jalozoy, both high level members of KHAD, Afghanistan’s infamous communist-era intelligence service, for engaging in torture and sentenced them to 12 years and nine years in prison respectively


Remedies

All problems cannot by trial on foreign land because foreigners would not understand the culture and feelings of the Afghans. So, it has to be solved internally. This can be done only by strengthening the criminal justice system. The system must represent the diverse ethnicity of Afghanistan and also must provide equal opportunity for women, who are traditionally in a disadvantageous position in the Society, otherwise the years of sexual violence against women would go undocumented and the perpetrators would go unpunished.


Various provisions of the constitution can be made popular among the people to make them aware of their rights. The evidences for various war crimes must be preserved. With no facility for studying the forensic science in the country, there is a high possibility of the evidence being tempered. In a report of UN, in 2008, it was found that the massacre site at Dasht-i-Leili have been tampered with. The war crimes have to be documented to prevent them being denied by their perpetrators in the future.


So, to make the war criminals pay for their actions it is a necessity that all parties including the foreign nations, national government, various NGOs and ICC must come together to bring Justice for the victims, who have suffered in the forty years war.


WHAT WERE THE TREATIES SIGNED IN THE HOPE OF BRINGING BACK PEACE IN AFGHANISTAN?

Geneva Accord, 1988

It was the agreement between the Pakistan and Afghanistan, with US and the Soviet Union acting as guarantors. The treaty paved way for the withdrawal of the Soviet forces from Afghanistan, thus leading to the cessation of direct conflict between the Soviet forces and the Mujahedeen. But the withdrawal of the Russian troops coincided with the heavy bombardment on various Afghan cities for the safe withdrawal of forces, which brought in great destruction, especially in the Panjshir Valley.


Soviets hoped for a political solution in Afghanistan after their withdrawal with the US, but America continued to support the various armed groups against the Najibullah Regime. Thus, the peaceful situation which the Soviet Union hoped and a neutral, secular government with the support of the UN could not be achieved. The Mujahedeen started attacking the Government forces, which culminated in a civil war which lasted until the fall of the communist government in 1992.


Peshawar Accord, 1992

After the fall of Communist Government, a transitional Government was set up under the under- professor Rabbani for four months but again the arrangement broke down. All efforts by the UN failed to form an inclusive Government and the most destructive part of the civil war began.


Agreement for Bringing Peace to Afghanistan, 2020

Also known as the Doha Agreement was a landmark agreement between the Taliban and the USA. The deal called for step wise withdrawal of US troops from Afghanistan in return of the fact that the Taliban would not support the Al Qaeda in its territory. The deal also led to intra Afghan talks between the then Afghan government and the Taliban. The Taliban promised to reduce violence in the area but on contrary increased violence. They promised not to take the country by force but they came to power by force. They promised to form inclusive government and would respect women’s rights, but the reality is a stark opposite to their claims.


CONCLUSIONS

By this research it can be concluded that the human rights violation in Afghanistan is a common thing and various peace deals which were signed failed to bring in peace in the war- torn country. So, I can suggest that all countries must follow the Universal Declaration of Human Rights in their action and not only be a mere signatory. The declaration contains a number of freedoms that human beings must possess, without taking into account in which nation he belongs to. The treaty contains fundamental rights of men. The senseless killing and oppression of fellow Afghans by the foreign powers is a complete violation of the treaty. So, this must stop.


The powerful nations must also maintain a peaceful relation amongst themselves. They must not indulge in a geopolitical competition, in which the weaker nations become the victims. The permanent five of the Security Council who were given the big job of maintaining peace in the world, should work in coherence in order to achieve their stated goal, instead of using the platform to further their own political goals.



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