The explosive debate over the bill could lead to a constitutional confrontation.
Tens of thousands of Afghans rallied at a Kabul stadium today to show support for the measure -- many of them carrying placards of prominent warlords and former mujahedin -- indicating the highly charged nature of the topic.
The Meshrano Jirga (Council of Elders) passed the controversial "National Stability And Reconciliation" resolution by a 50-16 majority on February 20. That vote came three weeks after the lower house -- the Wolesi Jirga (People's Council) -- approved it on January 31, sparking calls at home and abroad for Afghan President Hamid Karzai to reject it.
What It Says
The 12-point resolution contains four primary clauses dealing with the amnesty issue.
First, it calls on all "opponents who fought each other for different reasons in the last 2 1/2 decades" to forgive each other and consider the Karzai-backed national-reconciliation process. Such "opponents" technically include communists, mujahedin, and the Taliban antagonists and their allies. They are then offered immunity from any "legal or judicial" proceedings. Also, those involved in the jihad or resistance to protect Afghanistan's religion or territorial integrity are to be lauded by Afghanistan's "history and people." The draft law goes on to prescribe that such people "should not be subjected to any criticism."
Second, the resolution rejects reporting by the New York-based group Human Rights Watch (HRW). HRW has recommended that Afghan authorities hold accountable a number communist and mujahedin figures accused of major human rights abuses since 1979. The draft calls HRW reports "inaccurate" and based "on malicious intentions."
Third, the resolution invites "all parties that are against the Islamic Republic of Afghanistan" -- without exception -- to join the national-reconciliation process by abiding by constitutional and other laws. If they did that, all "opposition parties and armed groups" would be granted the blanket amnesty.
Fourth, the resolution appears to attempt to circumvent Afghanistan's international obligations. It says that following the establishment of the Afghan National Assembly in 2005, "all laws and international principles should be compared with constitutional and other" Afghan legislation to avoid local norms being superseded by Afghanistan's international obligations. Those obligations include the Universal Declaration of Human Rights. The clause also stipulates that laws approved by the National Assembly should be respected by the government of Afghanistan -- perhaps a subtle hint to Karzai not to oppose the current bill.
Shielded From Criticism
The sweeping resolution not only grants blanket amnesty from prosecution -- or even criticism -- to all parties and individuals involved in gross human rights violations; it also extends a similar reprieve to the current groups who are terrorizing parts of Afghanistan.
Karzai faces a thorny dilemma over the resolution. On the face of it, he must approve it -- thus making it part of his country's laws -- or reject it -- inviting opposition from powerful elements within and outside his own government.
The Afghan Constitution (Article 94) says a bill becomes law after approval by both houses of the National Assembly and endorsement by the president "unless the Constitution states otherwise." If the president rejects a bill approved by the National Assembly, he "can send the document back with justifiable reasons to the Wolesi Jirga" within 15 days. The lower house (Wolesi Jirga) can override presidential objections with a two-thirds majority vote. But if the president takes no action on a bill for 15 days, the document becomes law.
The New York-based International Center for Transitional Justice noted in a press release on February 3 that Karzai has endorsed the recommendations of a 2004 report by the Afghan Independent Human Rights Commission that urged the prosecution and removal of "war criminals from positions of power."
HRW, whose work is attacked in the new resolution, said in a brief on December 12 that the Karzai administration signed on to a 2005 "Action Plan On Peace, Reconciliation, And Justice." The group added that the plan pledged five "key actions" to implement and complete a transitional justice process by 2009. They include publicly commemorating public suffering during the three decades of war, vetting the civil service to exclude serious human rights abusers, documenting past events to establish accountability, promoting reconciliation and national unity, and establishing a mechanism for justice and accountability.
After the Wolesi Jirga approved the amnesty bill, presidential spokesman Mohammad Karim Rahimi told reporters on February 6 that Karzai had sent the document to legal experts for review. Rahimi did not say how Karzai planned to act on the bill, but he said that Afghan and Islamic law dictate that no one has the right or authority to forgive a criminal, apart from the victim or others harmed by the crime. Rahimi went on to "assure [the public] that the president will not take any action against the constitution."
He added that the "government will never surrender to pressure in implementation of the constitution," Pajhwak News Agency reported.
Karzai now has less than two weeks to influence the fate of a resolution that appears to run counter to the wishes of the Afghan public and the country's international obligations.
Karzai can choose to reject the bill based on constitutional grounds -- which his experts can arguably find in Article 7 and in Article 6, which obliges the state to create a society "based on social justice, protection of human dignity, [and the] protection of human rights." HRW Asia researcher Sam Zarifi has noted that international law prohibits the extension of national amnesties to genocide or war crimes.
Basing a rejection argument on Afghan law, experts could conceivably turn to Islamic jurisprudence -- under which neither the state nor its organs has the right to forgive the perpetrator of a crime like murder.
Karzai's rejection of the bill would surely alienate some in his immediate circle, including powerful members of both houses of the National Assembly. And in the end, the Wolesi Jirga might muster enough votes to overturn his veto, further eroding the president's public standing.
Former warring parties have tried to flex their muscles -- including through today's rally by tens of thousands of supporters of the controversial bill.
The "amnesty" bill and the ensuing presidential quandary are ultimately a result of expediency measures -- endorsed by Karzai himself -- that allowed individuals accused of gross rights violations to escape accountability and even assume positions of power.
The bill is based on just one of the five key points of the Action Plan that Karzai's administration endorsed -- namely the "promotion of reconciliation and national unity."
Karzai might do well to remind the resolution's backers of the other four key points of that plan -- and fulfill his 2005 pledge to implement them.
Some would argue that as the head of a Muslim state, Karzai's first responsibility is to uphold justice. That suggests that the temporary loss of support among a few powerful individuals might be outweighed by the gains of defending the rights of victims of past violence and the broader public.
Karzai must be wondering whether such an approach could turn the amnesty dilemma into a presidential panacea.