The National Reconciliation Charter of the National Assembly Not Undermining Transitional Justice

On August 26 2009, Ali Payam of Afghanistan Watch sat with Mr. Mawlawi Arsalan Rahmani a member of the Upper House of the National Assembly and an important figure in negotiations between the Afghan State and the armed opposition groups. Mr. Rahmani had served as Deputy Minister of Higher Education in the Taliban Government. During the interview Mr. Rahmani has talked about the National Reconciliation Charter of the National Assembly and negotiations and reconciliation with the armed opposition groups and the challenges and difficulties involved.

Q. Mr. Rahmani, how do you define peace?

A. Peace means to struggle for avoiding war, animosity, deviances from moral and religious issues and clearing the society, in other words to put an end to war. Men and women followers of all religions perform their obligations according to the teachings of Islam.

Q. In your opinion, what is the relationship between peace and justice?

A. The transitional justice has a legal perspective. Someone claims that somebody has killed a relative of his and annoyed him or has violated his property or stolen. The issue is directed to court. The judges and the process of prosecution pursue the case.

But under the transitional justice, the right of oppressed is taken from the oppressor. As far as possible, the perpetrators will be subject to punishment. Peace and reconciliation will take place when, for example, parties to a land dispute, property or political matter make peace and reach agreements.

Q. As an MP, what do you think, how much the National Reconciliation Bill has been successful in bringing peace?

A. The Bill is approved with a particular formula. This Bill has not violated the private rights of any one. In this formula, transitional justice is not undermined. The interests of transitional justice are not damaged. In Islamic law war is of several types. The war is not known and the killers are not known. There were conflicts between Hizb-e Islami, Wahdat-e Islami, Jamiat-e Islami or Harakat-e Islami. Or there were problems between ethnic groups: Taliban, Pashtuns, Hazaras, Tajiks and Uzbeks.

These problems should not be considered after this. Past is past, let us forget it and avoid the problems afterwards. However if any one wants to open a case on Mr. Rabbani he is free and the way is open.

Q. Considering three decades of war in which war crimes were extensively committed what is your opinion about implementing transitional justice?

A. In particular if someone wants to open a case against somebody else on the basis of murder, illegal occupation of properties or on moral and criminal basis they can go to the courts. The courts should proceed quickly and privately in order to ensure satisfaction of both parties.

However I believe that cases like 4000 Taliban fighters killed by General Malik in Dasht e Laili or in Kudoz 2 to 4 thousand people were killed by Dostum or how many Hazaras were killed by Taliban in Dai Kundi or how many people were massacred in Qaisar district of Faryab can not be included in transitional justice.

These types of cases should not be mentioned.

Q: Has the Commission for Strengthening Peace been successful in bringing peace?

A. The commission claims that they have convinced 7 to 8 thousand people to surrender to the government. However this number has done nothing to reduce war. We have not seen any practical outcome. However their effort is worth for the prisoners of Bagram, Guantanmo or Pul Charkhi but they have not done any remarkable activity to weaken or end the war.

Q. How would you compare the Commission for Strengthening Peace with the National Reconciliation Policy of Dr. Najibullah?

A. The National Reconciliation Policy of Najibullah was based on the policies of Hizb-e Democratik-e Khalq and the people who were working with them. That was not acceptable. But the Commission for strengthening peace is comprised of real Muslims and original Afghans; on top are popular figures like Hazrat and other religious scholars like Khumary and Erfani.

Q. How can we ensure a long-term and stable peace in Afghanistan?

A. The Commission for Strengthening Peace only asks the opponents to leave arms and come to the country. It does not mean reconciliation. If the government of Afghanistan really wants to bring peace, they should send a delegation with high authority and find the address of the opponents through United Nations. Otherwise these all will bring no good result.

Q. What some people believe is that the National Amnesty Bill was prepared by those people who are accused of human rights violation. It means they have made an amnesty document to forgive themselves. What is your opinion?

A. There is no doubt that the National Amnesty Bill includes the names of those commanders of war who commanded the previous fighting. The communist era elders like Gulabzoy and Ulomi who commanded the killings of people. From Mujaheedin era, the leaders of Itihad Islami, Jameyat islami, Wahdat Islami and Harakat Islami. All the scholars and commanders are included. We are also included. There is no problem. But it does not mean that we stop working about reconciliation. We suppose, and the elders suppose that what happened in the past was a mistake.

Q. Does the Amnesty include private rights of people?

A. In the bill, there is an article emphasizes that individuals can make their claims to the Courts.

Q. I mean whether the amnesty covers private rights or not?

A. The bill does not violate private rights, because it was reviewed by jurists and lawyers before being signed by the President.

Q. Private Rights means that the MPs are representatives in the parliament and according to Islamic Sharia cannot forgive the right of people. Is it not in this way?

A. The formula of national reconciliation has taken into account the private rights. If any one has any complain against some body else then the MPs do not have the right to deprive him or her of the right to complaint. Parliament and the members of Senate have no authority to deprive people of their rights.

Q. Then the Amnesty does not go back to the past at the time when there were armed conflicts and the violations of human rights vivid?

A. The past claims are preserved.

Q. What can we do to satisfy the victims of past three decade’s war?

A. From every ethnicity and parties there are killers and those who were killed. It is not that one ethnicity is oppressor and the other is oppressed. Hazara is the killer and killed. They are both oppressed and oppressors. Pashtuns also are the killers and killed. They are tyrants and oppressed either within their groups or in relations to others.

Q. Do you not think that implementation of transitional justice and the trial of violators of human rights and head of parties and factions will lead the country to another conflict and instability?

A. Firstly, the Jihadi leaders did not order the killing; they were in defending positions. The war was imposed on them from the outside. Again, there are differences between the commander who order the killing and the killer who carry out the killing.

The killer should be punished according to Shria. However who orders is not the killer. In Hanafi jurisprudence, the persons issuing orders receive ta’zir (discretionary punishment) not hodod (fixed punishment).

Q. Can we satisfy the victims by ensuring symbolic apologies?

A. I have many times proposed that a gathering be organized at the center of Paktiya in which all the Hazara elders and victims of wars are invited and we should apologize from them and the other day the same ceremony should be organized in Behsood, Charikar and …. The ulema should take the Holy Qura’an and some women and confess that there have been mistakes and we will not repeat it. There are many ways.

Q. How much foreign countries are involved in thirty years of war and human rights violations in Afghanistan?

A. It is clear that Khalq and Parcham were trained in the Soviet Union and they carried out the coup. It means that Russia fought in Afghanistan practically. All the crimes and criminals are vivid.

Q. In particular what is your promise and opinion in granting back the respect and satisfaction of the victims?

A. I have several times declared that those whose houses are destroyed or the widow women and orphan children, should publicly be helped. There should be apologies from one ethnic group to others. They should demonstrate their regret and that they have committed mistakes; but it is not yet clear that who is the killer and who is killed? The wars were imposed from outside. These all should be proposed. Rabbani can do it representing the Tajiks or the other side Mohsini. There is Sayaf and Hazrat in Pashtoons. We have no problems.

Q. A public opinion poll in which 6 thousand people were asked about the violators of human rights, more than 68 percent demanded their prosecution and their trial, some of them also asked for the compensation of damages. What is your opinion?

A. Legal and personal cases have no problem. Those who have claims they should consult the court. There is no problem.

Q. The action plan of transitional justice was not implemented on the fixed time. What is your opinion in this regard?

A. No one can implement it. We can not solve the current problem, can we implement transitional justice? Our government is weak and has no authority or power. We have no prospect that it will be implemented in the near future. Now we are in war with Taliban and Hikmatyar. We can not stop them. We can not celebrate the ceremonies and can not go to Chaman Hozori then how transitional justice can be implemented.

Based in Kabul, the Afghanistan Watch focuses on activities that promote justice, respect for human rights and a culture of accountability and transparency in the country. Recognizing the need for greater understanding of the perils and opportunities facing Afghanistan today, the organization aims to conduct in-depth research and publish reports and papers on issues relevant to its goals and values independently or in partnership with other national and international organizations.

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International Relations and Security Network(ISN) / Security Watch
14 December 2009

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