{"id":2250,"date":"2019-10-02T05:06:28","date_gmt":"2019-10-02T05:06:28","guid":{"rendered":"https:\/\/accessaccountability.org\/?p=2250"},"modified":"2022-03-07T16:56:11","modified_gmt":"2022-03-07T07:56:11","slug":"justice-for-the-dead-mass-graves-in-afghanistan","status":"publish","type":"post","link":"https:\/\/accessaccountability.org\/index.php\/2019\/10\/02\/justice-for-the-dead-mass-graves-in-afghanistan\/","title":{"rendered":"Justice for the Dead?: Mass Graves in Afghanistan"},"content":{"rendered":"

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Mass graves<\/span><\/span><\/span> are burial sites containing multiple human remains, often following events with multiple casualties such as epidemic, famine or mass killing. After <\/span><\/span><\/span>decades <\/span>of conflicts in Afghanistan, armed attacks had <\/span><\/span><\/span>cost<\/span> the lives of millions. Many years have passed with no prospect of holding perpetrators accountable. Nonetheless, it remains important to identify and preserve mass graves to document the numerous atrocities committed and to lay a foundation to hold the actors accountable for their own actions in the future. Investigation as a whole is a reconciliation process for truth-telling and awareness-raising. <\/span><\/span><\/span><\/p>\n

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Mass Graves: A Closer Look<\/span><\/h3>\n

In 2008 alone, the <\/span><\/span><\/span>Afghanistan Independent Human Rights Commission<\/span><\/span><\/span><\/a> (AIHRC) claimed to have identified 62 mass grave sites <\/span><\/span><\/span>spread across<\/span> the country. The International Criminal Court<\/a> (ICC) <\/span><\/span><\/span>indicated<\/span><\/span><\/span><\/a> that these atrocities could have been committed by actors as diverse as the Taliban, Afghan Forces, US Forces and the CIA, and members of international armed forces. Victims were sometimes <\/span><\/span><\/span>indiscriminately killed by gunmen, bombs, suicide bombers, through executions, airstrikes and drones to further the killers’ political ends or as retaliation. These victims <\/span>included Taliban prisoners, al-Qaeda militants, local resistance forces and other non-combatants, for example, children, the aged and infirm.<\/span><\/span><\/span><\/p>\n

Most of these mass graves sites were discovered after compiling witness testimonies, the purpose of which is to enable <\/span><\/span><\/span>them to tell<\/span> and share their <\/span><\/span><\/span>stories<\/span> and recreate the event during the conflict. Following this process, the Office of the United Nations High Commissioner for Human Rights (OHCHR) asked <\/span><\/span><\/span>Physicians for Human Rights<\/span><\/span><\/span><\/a> (PHR) to conduct a <\/span><\/span><\/span>preliminary assessment<\/span><\/span><\/span><\/a> of reports of mass graves in Afghanistan. Further, OHCHR itself had also <\/span><\/span><\/span>undertaken<\/span> a mapping project of mass graves <\/span><\/span><\/span>from <\/span>existing UN and external documents. <\/span><\/span><\/span><\/p>\n

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Post-Conflict Developments<\/span><\/h3>\n

Despite the large number and size of the mass graves, no one has been held accountable. This might be attributable to the fact that the perpetrators presided over the transitional government following the years-long conflicts, thereby creating “an environment in which many of those suspected of war crimes continue to dominate government structures<\/a>”. As mentioned above, most mass grave discovery relied on witness accounts. With those responsible <\/span><\/span><\/span>staying<\/span> in positions of power, many witnesses remained reluctant to speak up for fear of retribution from those in power. The AIHRC<\/span><\/span><\/span> also <\/span>reported that corruption is a major challenge for people to enjoy human rights and peace. Furthermore, the <\/span><\/span><\/span>Bonn agreement<\/span><\/span><\/span><\/a> <\/span><\/span><\/span>signed<\/span> and passed in 2001 automatically amnestied those coming over to the government side of the conflict. Despite the government’s attempt to achieve transitional justice for victims through the execution of the Afghan Transitional Justice Action (2006 – 09), it was never fully implemented.<\/span><\/span><\/span> <\/span><\/p>\n

Furthermore<\/span>, neither formal governmental policy nor legislation was in place to protect <\/span><\/span><\/span>gravesites<\/span>. Many sites have since been converted into military bases, buildings or agricultural lands following years of neglect and abandonment. This has rendered access difficult. In some instances, access to remote location might raise security concerns for the investigators, which also deters investigations. <\/span><\/span><\/span><\/p>\n

Effective investigations and discover<\/span><\/span><\/span>y<\/span><\/span><\/span> require the expertise of professional forensic workers who can identify bodies buried in the sites. With this kind of excavation work, evidence could be secured to establish the facts relating to the mass grave at a later date. In Afghanistan, local forensic investigation needs improvement to meet accepted international standards. Worse still, tampering with mass graves sites had been reported both as a result of the perpetrators’ attempt to conceal their wrongs, and also attempts by loved ones of the deceased to retrieve bodies for reburial. The PHR has shown <\/span><\/span><\/span>satellite images<\/span><\/span><\/span><\/a> evidencing efforts to hide the mass graves in Dasht-e-Leili. In Badakhshan, forensic analysis of a mass grave was made impossible following<\/span><\/span><\/span> excavations by the local community<\/span><\/span><\/span><\/a> to transfer bodies to <\/span><\/span><\/span>individual grave sites<\/span><\/span><\/span><\/a>. <\/span><\/span><\/span><\/p>\n

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The US has also played a decisive role in holding actors accountable. Different reports have suggested that the mass grave in Dasht-e-Leili was as a result of the US military’s ill<\/span><\/span><\/span>–<\/span>treatment towards Taliban prisoners and where deaths resulted. President Obama’s call <\/span><\/span><\/span>for an <\/span>investigation<\/span><\/span><\/a> into the event was never realised. In <\/span><\/span><\/span>other instances<\/span>, investigators met with resistance from American and Afghan officials under the pretext that it could destabilise the newly established government. While recognising human rights violation might <\/span><\/span><\/span>have been<\/span> involved, the State Department took no further action following its report in 2002. <\/span><\/span><\/span><\/p>\n

On the international dimension, although the OHCHR began a mapping project and proposed to release a report on the issue, it was never published. In April 2019, the ICC had handed down a <\/span><\/span><\/span>decision<\/span><\/span><\/span><\/a> in <\/span><\/span><\/span>response<\/span> to the prosecutor’s 2017 request for investigation of war crimes committed by various parties in Afghanistan. While recognising there is a reasonable basis to believe that these events might have happened, the 3-judge panel of the ICC concluded that an investigation at this time “would not serve the interests of justice”.<\/span><\/span><\/span> <\/span><\/p>\n

Judge Antoine Kesia-Mbe Mindua delivered a separate <\/span>opinion<\/span><\/span><\/a> detailing what she believed “interests of justice” demanded. She identified several features in the prosecution’s case, including:<\/span><\/p>\n

    \n
  1. the significant time elapsed between the alleged crimes and the request for investigation;<\/span><\/li>\n
  2. the scarce cooperation obtained by the prosecutor throughout this time, even for the limited purposes of a preliminary examination;<\/span><\/li>\n
  3. the likelihood that both relevant evidence and potential relevant suspects might still be available; and <\/span><\/li>\n
  4. the limited availability of human and financial resources of the Court.<\/span><\/li>\n<\/ol>\n

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    Adopting a holistic approach in assessing what would serve the “interests of justice”, including the above considerations and other “extra-legal” political factors, Judge Antoine deemed any investigation at that time would “inevitably [be] doomed to failure”. However discouraging this judgement might seem, the judge recognised that “alternative mechanisms such as Truth and Reconciliation Commissions, amnesties, transitional justice and even Gacaca<\/span> are preferred to the international justice system”, especially where the latter could jeopardize peace. Further, the judge did not rule out the possibility that future investigation might be reopened following new facts or evidence in accordance with Article 15(5) of the Rome Statute and that the ICC Trust Funds for Victims could be utilized if necessary. In any event, it remains doubtful whether this will eventually be realised especially in light of the fact that the factors identified by the judge may only worsen as time goes by. Notably however, both<\/a> victims<\/a> and the <\/span>prosecutor<\/span><\/span><\/a> had appealed against the decision and it remains to be seen whether after decades of pain and suffering, justice could finally be realized for the aggrieved.<\/span><\/p>\n

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    On the other hand, the ICC noted that the “primary responsibility for [adjudicating heinous atrocity] rests on States” and that it can only intervene when States cannot or is unwilling genuinely to prosecute<\/a>. In Afghanistan’s third <\/span>Universal Periodic Review<\/span><\/span><\/a> (UPR), the AIHRC <\/span>submitted<\/span><\/span><\/a> that “about 16.6 per cent of the primary court in 25 provinces are virtually inactive due to the insecurity and local domination of the anti-government armed groups”. Citizens’ access to police officers and pursuing their cases has also been met with serious challenges and obstacles. <\/span>Human Rights Watch<\/span><\/span><\/a> (HRW) pointed out that none of the government officials had been prosecuted for war crimes and human rights violations. To this end, HRW urged the Afghanistan government to repeal its National Stability and Reconciliation Law to allow for the prosecutions of certain crimes, including war crimes and torture, publish a Conflict Mapping Report, and cooperate fully with the ICC. <\/span><\/p>\n

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    Key <\/span><\/span><\/span>L<\/span>essons<\/span><\/span><\/span><\/h2>\n