Peace versus Justice: A False Dichotomy?

 

Mapping Tensions and Complementarities between Human Rights and Conflict Resolution Advocacy in Afghanistan

 

 

A research proposal submitted in partial fulfillment for the Degree of Máster en Conflictología/ Especializado en Conflictos Armados y Gestión de Crisis

 

         Author:

Katharina Christina Merkel

B.A., Staffordshire University

 

Tutor:

Marta Poblet Barcell

J.D., Stanford University

 

 

 

---------------------------------------------------------------------------------------------

The Campus for Peace and Sustainability, Universidad Oberta de Cataluña /The Institute for Law and Technology Universidad Autónoma de Barcelona

 

Preface

 

History has shown that human beings have a strong desire to categorize everything. People see things in extremes, good or bad, success or failure or black and white, a cognitive behavior from which the term “black and white thinking” has evolved. When former US president Bush warned that your are “either with us or with the terrorists”, he delivered one of the best example of black and white thinking - or of a false dichotomy. His statement does not withstand scrutiny, it is inherently flawed. As a matter of fact, there are many other choices available, you can be neither with the Bush administration nor with the terrorists, yet the false dichotomy extinguishes all other opportunities. Besides neglecting the middle ground on an issue, a false dichotomy also neglects the possibility that the concepts presented are complementary rather than supplementary. A false dichotomy is a simplifier and those who fall to its claim will fail to consider a wide range of options and will not be able to enjoy the various nuances of the color grey.

 

“Peace versus justice” is an age-old conceptual struggle, based on the proposition of looking at people form the orbit of security, peace and stability or looking at people from the orbit of human rights, justice and accountability. In the context of post-conflict peacebuilding, the debate mainly refers to the dilemma of transitional justice and has largely translated into a heated discussion on protecting the perpetrators or protecting the victims. Yet peace scholars and peace activists have started to question this fundamental dichotomy and the emergence of concepts such as “positive peace” and “human security” has provided a further stimulus for bridging the seemingly irreconcilable views.

 

More broadly, the peace versus justice dichotomy also translates into a conceptual struggle between idealism and realism, a struggle which has been the source of much controversy and conflict. Though I would like to envision an ideal or perfect state of affairs, I must consent to the claim that politics - after all - is about the life and death of real people and that the status quo of Afghanistan might render calls for perfectionism obsolete. Yet the aim of this paper is not to polarize the views of realism and idealism but to ask the valid question if attending the ever-increasing calls for justice, should not be considered a pragmatic approach towards peace and stability which is deeply grounded in the reality of the human terrain which is shaping Afghanistan.

 

Irrespective of the school of thought we belong to, we should be deeply disturbed by some of the absurd contradictions which are manifesting themselves in Afghanistan. They might not at last be due to the entrenched views of policymakers failing to go beyond black and white term thinking. What we are witnessing in Afghanistan today cannot be explained and much less be solved with simplicity.

 

Introduction

 

In the eastern outskirts of Kabul, lying as still as the air, is evidence of the gruesome fate that met thousands of Afghans during Afghanistan's decades of conflict. The ground around the notorious Pul-e-charkhi prison offers abundant evidence of mass death. Already in 1992, just after president Najibullah handed over power to the transitional government, mass graves with dozens of bodies were discovered in the same area. In the midst of the civil war, however, these graves were simply closed again. Without a state structure in place no investigation could be undertaken, no justice could be sought. Throughout Afghanistan discoveries of mass graves have continued ever since then. However, almost a decade into the mammoth task of rebuilding the state of Afghanistan the contentious but omnipresent question on justice still seems unanswered.

While the fall of the Marxist regime has ended the most tragic chapter of Afghan history during which more than a one and a half million lost their lives and about 5 millions became refugees, the future looks uncertain and the past is still an open wound. Memories of the horrors of the past have not yet dimmed and there is a strong desire among the Afghan population to deal not only with future-oriented questions but also with the difficult legacy of the past. However, since the fall of the Taliban, the government has mainly ignored the calls to hold human rights abusers and war criminals accountable. No serious effort, domestic or international, to account for the horrific catalog of crimes – mass executions of at least tens of thousands of Afghans, torture, mass rape, arbitrary detentions and killings, large-scale massacres, disappearances, indiscriminate bombing and rocketing that killed hundreds of thousands of civilians – has been made. Non-investigation into these atrocities has caused widespread resentment, mistrust and disillusion among the Afghan population and most Afghans believe that impunity for human rights violations in their country continues unabated. Failure to provide justice has greatly eroded the legitimacy of the Afghan government. Non-surprisingly president Karzai's inauguration ceremony on 19 November 2009, which marked the beginning of his second term in office was mired in controversy, not only in the light of the fraud-marred polls which proceeded the swearing in but also in the light of some of political deals that were made in order to bolster his position.

 

In a compelling speech Karzai expressed his commitment to strengthen the security sector and to ensure lasting stability throughout the country. His inaugural speech further went on to address the protection of human rights and his commitment to end Afghanistan's “culture of impunity”. Karzai's guests, among them also Pakistan's president Asif Ali Zardari, the US Secretary of State Hillary Clinton, as well as the foreign ministers of France and Germany were applauding. Yet human rights advocates and civil society leaders who later viewed the ceremony as it was broadcasted on TV were struck by the absurd contradictions which were manifesting themselves this day at Kabul's presidential palace. After the speech Karzai went on to swear in his First Vice President, Muhammad Qasim Fahim, formerly known as „Marshall Fahim“. The running-mate of Karzai, a prominent Afghan military commander and a controversial former warlord, had previously served as defense minister and vice president during the interim and during the 2004 administration. Brad Adams, director of Human Rights Watch's Asia Division, considers Fahim to be „one of the most notorious warlords in the country with blood of many Afghans on his hands from the civil war“. Fahim is only one of the controversial figures representing the Islamic nation, there are other examples abound. Most prominent among the group of accused warlords-cum-politicians are Mohammad Qasim Fahim, Abdul Rabb al Rasul Sayyaf, Burhanuddin Rabbani, Ismail Khan, Abdul Rashid Dostum, and Karim Khalili (HRW, 2009).

 

Afghanistan tells a successive tale of socially compromising agreements being made in order to drive stability forward. Among these agreements was also the „Charter for Compromise and National Reconciliation“, a reconciliation initiative launched by the Afghan parliament in January 2007. The resolution offers legal immunity from prosecution to all opponents who lay down their arms and join in a process of national reconciliation. These opponents include various forces who fought a series of civil wars over the past 25 years, and the Taliban and other irregular forces that are still fighting the government today. The draft law further prescribed that all Human Rights Watch (HRW) reporting should be rejected. HRW's press release on the launch of the national reconciliation strategy became the focus of controversy as the release (quiet correctly) portrayed the resolution as an attempt by war crimes suspects in the parliament to grant themselves amnesty. Human Rights Watch further recommended that the Afghan authorities should hold accountable a number of parliamentarians accused of major human rights abuses, however, the legislators behind the amnesty bill simply declared Human Rights Watch's reports to be based on „malicious intentions“. Fortunately - - a subtle sign of hope for the young democracy - - the attempt by many of the country's top warlords-cum-politicians to escape accountability provoked an outcry, not only among civil-society leaders but also among Afghanistan's highest body of Islamic clerics who argued that under Sharia law, the perpetrators of war crimes can only gain forgiveness from the victims and not from the parliament. Following the bill's controversy several passages were re-drafted. The draft now allows victims to seek justice and to bring cases against those alleged to have committed war crimes. However, it still prevents the state from prosecuting perpetrators of war crimes in the absence of an active „complaint“ by a victim (Semple, 2009).

 

Calls for justice have long been viewed as impediments to peace since criminal prosecution of leaders might prevent peace deals from being made, thereby prolonging the conflict and further weakening Afghanistan's precarious security situation. The protection of human rights and the resolution of conflict are therefore considered as conflicting and competing political demands. Afghanistan, like other countries facing (the aftermath of) a civil war, is struggling to balance the need for peace and stability with demands for justice and accountability. While continuously urging Karzai not to include warlords in the government also the international community is walking a tightrope. Some of the notorious warlords are not at last back in power due to the US heavily relying on them while ousting the Taliban from power. Such deals have given the left ammunition to stigmatize Kabul and her base of international support. Yet is it indeed that the policymakers have adopted a real political stance, without no moralistic premises whatsoever? Echoing such claims, they are quick to defend: should peace be traded for justice when the cost of justice is paid in human lives, as it might be the case in Afghanistan? The right to live, after all, seems to be the most fundamental of all rights.

 

Afghanistan offers a disturbing picture of the the peace versus justice dichotomy, with peace and justice mostly viewed as inherently inflicting. Yet the mere fact that almost a decade into rebuilding Afghanistan neither justice nor security has been attained, opens the question whether “peace versus justice” has been presented as a false dichotomy. Are the two concepts indeed so fundamentally juxtaposed?

 

In seeking to best understand the exhaustive role of justice in peace negotiations and peacebuilding in Afghanistan, we address several sub-questions throughout this paper:

 

  • Are conflict resolution and human rights advocacy indeed competing political demands? What do they conceptually have in common? What are their tensions? How do such tensions and complementarities translate into the reality of building and negotiating peace in Afghanistan?

  • How is reconciliation linked to both, to the concept of peace and to the concept of justice?

  • Should the chronological sequence of the “security first, justice after” paradigm be challenged?

  • What are the transitional justice mechanisms available in the aftermath of a conflict? Which of these mechanisms have been made available in Afghanistan following the ouster of the Taliban in 2001? Which ones have not been implemented?

  • Should anyone who is willing to give up violence be invited back into society, notwithstanding their violent past? How should conflict actors be appeased? Those being reconciled, are they still significant conflict actors?

  • What are the laws and principles on reconciliation, forgiveness and retaliation in Islam? Could such principles serve as an Islamic peacebuilding framework that facilitates both, the pursuit of peace and the pursuit of justice?

  • What are the cultural aspects that might have an impact over the problem? Can the traditional justice mechanisms, as embedded in the culture, be aligned with the western model of transitional justice?

 

 

Proposed Methodology

 

The study of war is a a complex undertaking, particularly when simultaneously investigating into security and justice issues. In order to account for this complexity, this study integrates diverse research techniques for collecting and analyzing the relevant data, thereby using hybrid qualitative and quantitative research methods. A thorough literature review is being conducted, including both published and grey literature. Even though the scope of the research is pre-defined and pre-determined, the data collection methodology remains flexible, in order to allow for the incorporation of new thoughts as they arise.

 

The report is partly based on a field study to Afghanistan conducted between April and November 2010. The analysis and conclusions drawn in the report are therefore partly based on the author's discussions with ordinary Afghans, civil society leaders, government officials, and members of the international community working in and on Afghanistan. Over the course of the investigation various organizations centered on peace, justice and reconstruction, such as the Afghan Independent Human Rights Commission, the Afghan Research and Evaluation Unit, the Afghan Civil Society Forum, the Kabul Office of the German Heinrich-Böll-Foundation, and the National Center for Policy Research at Kabul University are being consulted. Such consultation introduces new primary qualitative data to our investigation, thereby adding strength to the research and allowing for a more accurate picture of the most recent developments in the field. Due to resource and security constraints, no new primary quantitative data can be generated.

 

This paper is set out in seven sections. Following the introduction, Part I outlines the rationale, background and key concepts pertaining to the peace versus justice debate. This section is designed to be a dialectical inquiry, based solely on qualitative data. Through the method of dialectic, competing ideas, perspectives and arguments are being examined and interrogated. For inquiring into the (false) dichotomy of peace versus justice, (or more narrowly defined conflict resolution versus human rights advocacy) this qualitative research method seems particular adequate, since the main aim of the investigation is not to test a hypothesis but to generate a higher understanding of the issues involved. Through a constructive debate, the underlying assumptions, problems, issues and premises of the two polarized opposites are outlined. The use of dialectical inquiry allows to exploit of a wide range of ideas and provides a stimulus for bridging seemingly opposed views, thereby resulting in a wide variety of potential problem-solving techniques.

 

Part II of this study sheds light on some of the lessons learned elsewhere that might now be applied in Afghanistan. Therefor knowledge claims from Part I of this study are investigated in the context of four case studies, dealing with a variety of real-world problems in diversified settings. The research variables for the case studies consist of 1.) area of study profile; 2.) brief historical analysis of the situation; 3.) amnesty and other justice issues in the peace accords and 4.) the situation after the agreement. The exact data sources for the completion of each case study varies.

 

Case study I, dealing with the Swat Accord in Pakistan, distinguishes from the other three case studies in that it does not approach an agreement which can be termed a post-conflict transitional justice mechanism. The Swat accord was aimed at preventing a further outbreak of violence and not as a response to systematic violations of human rights. By accepting that the peace deal potentially takes an adverse toll on justice, this accord however appears to be similar implicit of the “peace versus justice” debate. With Pakistan being a direct frame for Afghanistan, the Pakistan experience seems particularly relevant to our study. Subsequent to the Pakistan case, case study II investigates into the amnesty agreement under the Lomé Peace Accord in Sierra Leone. This peace accord has been recognized by various scholars to be among the “worst-cases” of trying to preserve justice while implementing peace. There are some striking similarities between the amnesty agreement in Sierra Leone and the original amnesty bill in Afghanistan, which makes this case an interesting frame for our study. Case study III then goes on to outline and evaluate the widespread claims, that the International Criminal Court (ICC) in Uganda, while attempting to establish justice, constitutes an impediment to peace. Afghanistan is among the 110 countries that have ratified the Rome agreement and is therefore legally bound by the ICC's provisions. This case study is of particular relevance given the fact that the ICC has initiated a preliminary analysis of the atrocities committed in Afghanistan and while slowly expanding its focus beyond Africa, might potentially become a more visible actor in Afghanistan in the future. The last case study then investigates into the South African Truth and Reconciliation Commission (SATRC), a transitional justice mechanism that has received much scholarly attention. The SATRC granted amnesty to perpetrators of political-related violence only, thereby drawing a careful line between different motivational factors. With Afghanistan being plagued not only by political violence but also by family and tribal feuds as well as economic-related violence, there is particular relevance in transferring some of the findings to the Afghan context. The comparative analysis of data from all the case studies is presented in the final section of Part II. Even though it is not necessary to read through all the case studies, in order to have an adequate understanding of the conclusions and recommendations presented in Part VII, the case studies will considerably advance the readers understanding of the investigated theme.

 

Part III presents a brief conflict analysis. Understanding the underlying dynamics that are shaping the Afghan conflict is vital to draw valid conclusions and thus to give strength to the recommendations presented in Part VII. Conflict analysis helps to attain a better understanding of the context by allowing for a systematic study of the elements and processes involved. A conflict analysis can never be entirely exhaustive since the dynamics of each conflict are simply too complex and volatile. Moreover an in-depth conflict analysis would be beyond the scope of this research and should be considered worth a study in its own. Therefore this analysis focuses on the critical points necessary for a general understanding of the situation and on those most critically connected to the problem. This can be broadly classified into sources that had an impact over the emergence of various power bases and those related to failures is establishing the rule of law.

 

Part IV of this study examines the transitional justice mechanisms that have been made available in Afghanistan to date. It particularly focuses on the respective institutions and the legal culture surrounding them. The role of the Afghan Independent Human Rights Commission (AIHRC) as well as Karzai's Action Plan for Peace, Reconciliation and Justice are among the principal items to be discussed. Data for this section is drawn from various sources and is largely qualitative in nature.

Part V seeks to investigate into the problem as perceived by the Afghan population, through discussing and evaluating some of the findings of a national-consultation conducted by the AIHRC in 2004. The results of the study are published in a report titled “A Call for Justice”. The consultation was aimed at exploring, if and how the Afghan population wishes the wide catalog of past crimes and abuses to be addressed. The study is comprised of (1) the application of a population-based survey, designed to capture quantitative data and test for preferences to 4151 respondents; and (2) the convening of over 200 focus groups discussions with over 2000 participants, designed to capture qualitative data and test for perceptions. The consultation was conducted over a period of eight months and covered 32 of Afghanistan's 34 provinces as well as refugee populations in Iran and Pakistan. The study thus uses a representative sample and is deemed a reliable data source for our investigation which delivers both, relevant qualitative and relevant quantitative data. Using qualitative and quantitative research methods adds more strengths to our research as it successfully helps to overcome validity constraints. The AIHRC's study examines tendencies among the Afghan population's perception on questions closely related to the problem: 1.) Which parties are responsible for the violations?; 2.) How has the international community dealt with war criminals?; 3.) What are the effects of bringing war criminals to justice?; 4.) When should trials against perpetrators be hold?; 5.) Who should be tried?; 6.) Do you trust the judicial system in Afghanistan?; 7.) What is your opinion on amnesty? and 8.) What is your opinion on vetting?

 

It is important for the reader to carefully read through this section since many of the recommendations presented in Part VII are based on findings from the AIHRC's investigation. This is particularly due to the author's recognition that the voice of the population directly affected, most adequately reflects the local realities surrounding the problem. The interested reader is encouraged to read the entire AIHRC report, available at the AIHRC's webpage (www.aihrc.org.af). The extracts and evaluation of the data presented in this study will, however, be sufficient to understand the conclusion drawn in this report.

 

Part VI is aimed at giving strength to our investigation by focusing on relevant sociocultural aspects. The study therefore investigates into the role of Islam and into the role of culture in the “peace versus justice” debate. First some of the principles and laws on reconciliation, forgiveness and retaliation as stipulated in the Qur'an and other Islamic scriptures, are outlined in this section. The report then goes on to discuss how this principles could support or impede the pursuit of both, peace and justice. With religion being a dominant force that channels the behavior and attitudes of large parts of the population, there is a clear need to understand the role of Islam in the discussion. Part VI also takes into account specific cultural aspects that might have an impact over the problem. This study thereby looks particularly at the traditional justice mechanism available in Afghanistan and seeks to elaborate if such mechanisms can be aligned with the western model of transitional justice. An investigation of such mechanism and linkages facilitates the drawing of recommendations and conclusions which are in line with the sociocultural realities.

 

The final Part VII sums up the key finding from this study and based on these findings draws a conclusion to the problem. Such conclusion is followed by some carefully articulated policy recommendations.

 

Initial Acknowledgement

 

I would like to acknowledge those who have contributed significantly in the run-up of this study and in preparing my field trip to Afghanistan. My first and greatest thanks go to my thesis advisor Marta Poblet Barcell. She worked with me through the main ideas behind this research project and her comments and suggestions have been both insightful and inspiring. I also wish to acknowledge Bente Aika Scheller, Director of the Kabul Office of the Heinrich-Böll-Foundation for insightful conversations and her rich contribution in material. Special thanks also goes to Carol Wang, Director of the Lichtenstein Institute for Self Determination at Princeton University for her logistic support.