Ali Payam of Afghanistan Watch interviewed Miss Sima Samar, the Head of Afghanistan Independent Human Rights Commission (AIHRC) on 31 Sep 2009. The transcript below shows the responses of Miss. Sima Samar to the challenging questions raised about the process of transitional justice in Afghanistan.

Q. The official schedule of the action plan of transitional justice has ended and this process was not implemented. What is your opinion?

A. Thank you. The schedule for implementation of transitional justice action plan was precisely planned for years 2006, 2007 and 2008. I think, it must have been put into effect during this period. As it has not been implemented, so it does not mean the process is over. The work plan for transitional justice must be put into practice and should not be limited to timetable. We were most interested in having a clear description of transitional justice with specific timetable.

If some one lacks a clear and strong action plan or strategy for continuing his work, he/she will fail. Or he does not have an action plan that should be completed in two to three months. Unfortunately, the State has been doing little to implement the action plan. I say that the State not only has been doing little to implement not only its action plan but also in many other works. For example, none of their development plan has been practical. The transitional justice action plan was included in those programs. Let me highlight the reasons. I think the first reason is lack of political commitment. That means that there was no necessary political commitment for the leadership of state institutions. Third, a series of opposition that are due to misunderstanding and the action plan was confronted with resistance by some MPs in parliament.

They passed a law and declared amnesty for all the people so that no one is brought into justice. In the meanwhile there is no strong emphasis on trial in the action plan of transitional justice, but it aims are to build the foundations for the implementation of justice in the country. It has been stressed that traditional or Islamic methods regarding forgiveness can be used. Those who felt insecure or did not understand or did not want to understand the concept of transitional justice action plan stood against the process of transitional justice or passed their own amnesty law.

Q. Some people I have interviewed believe it is inappropriate to try Afghans. They believe foreigners should be tried. For example, they supported us and provided us with weapons to kill people. It is right that we fired but the strategy of war was defined by them. How much do you think these statements are true? How fundamental and practical are these? This type of approach is something impossible for us.

A. Those who make these statements, I believe, want to justify themselves in order to find a loophole. There is no doubt that the neighboring countries were involved in the affairs of Afghanistan; however if Russians came to Afghanistan, their guide was Afghans. If Pakistanis interfered in our internal issues the guide was Afghans. If Iranian were involved here, we paved the way for them, likewise the Arabs and Americans. I think they want to run away from their responsibility.

I believe transitional justice is not about courts only. It requires the confession of those who committed crimes. Even if they say that they committed mistakes in the past, killed some people with ignorance or misunderstanding and they did not know the rockets they fired would hit a residential area instead of military bases. They only have to ask people for forgiveness. They should confess that these were the mistakes they committed and ask people for mercy and forgiveness. Instead of searching for loophole like saying Americans should be tried. It is impossible. However it is natural that some were under the command and have been under the order of a commander. In this country, every one should answer for their own deeds. However, where you can find Breznev to try? I believe that criminal trial is not absolutely essential. Trial is a way to bring justice and revive peace.

Q. Some of the interviewees believe that the current government lacks the ability and power to implement the process of transitional justice. You will have to wait for several decades so that a democratic government comes into effect that feels the responsibility towards the victims of violence. The civil society also cannot do anything. What is your opinion as Head of AIHRC?

A. I think the State of Afghanistan had the capabilities to implement transitional justice because one of the propositions for the action plan of transitional justice was that the perpetrators of crimes against humanity should not be given part in the government. They took some steps in the beginning but later on again brought the powerful figures in the government. They can remove them from the post of governor. Then what can they do? They can be arrested if they create troubles.

Q. General Shehnawaz Tanai expressed his concerns that the process of transitional justice may result into injustices once again. What is your opinion?

A. I think it might be true. However the implementation of transitional justice does not mean that we imprison people or hang them, but they should confess that they committed the crimes or mistakes, apologize from from the people and secede from power. It is not necessary that they are appointed as governors. The perpetrators of war crimes and crimes against humanity need not be police chiefs. As we can not build trust between people and state and if there be no trust between government and people our government can never have the public support. And when any government lacks public support the condition of people will not get better and at that time there will be injustices.

Q. Some people I have interviewed believe there should be a collective work to implement justice. For example, one of them suggested that since the killer and the killed are not clear there should be big gatherings organized and we should apologize collectively from the people. What is your comment in this regard?

A. There is no doubt that it is effective. At lease they confess that they committed these mistakes and we will no more repeat it. We will no longer kidnap your child or marry any ones girl or child by force. What is wrong if this gathering is organized in the center of Afghanistan and all should participate from every corner of the country? It will amend the wounds of the victims. Whoever they be, MPs or Head of Parliament, can they feel the sufferings of a mother who is still waiting for his lost child or a child who has never known who is his mother or father? Who shares the love of their lost ones?

Q. Some have said in their interviews that the three decades of war in Afghanistan is like firing in the air. This means that neither the killer nor the victim is known. Obviously there are no clear criminal punishments as a result. Who against whom? In particular one of them said in the interview that when you capture a jihadi leader and he claims that he did not make a single shot. What is your opinion?

A. I think the powers and wars were clear. For example the fighting that took place in Jaghori are clear including the wars against Khalqis, as they were thrown out of Jaghori and the conflicts that followed. Every one knows that who are the fighters and at least who ordered? Or the bombardments during Khalq. For example everything is clear about the bomb that was dropped in our village in Jaghuri at that time; the victims and those who ordered. The defense minister of that time ordered it. All know this and now if the defense minister is not alive it is another issue.

Q. It seems that the process of transitional justice is not applicable in near future. What are the hurdles and challenges?

A. There exist challenges ahead of transitional justice. When we were conducting the national consultation crimes had occurred during last years. As the wounds were fresh, most concentrated on the crimes of the last years in relations to crimes committed during the Khalqis. For example, my child who never saw his father can not say that who was at that time. But I can identify who the real criminal was. As time passes the witnesses also pass away.

Q. I pointed out with some of the interviewees the national consultation and according to this consultation about six thousand people demanded for the implementation of transitional justice process. Answering my question, they said that if six thousand demand for trial, the violators of human rights can gather several times more people to defend and prove their innocence. What is your opinion about this?

A. I think this is a justification to avoid responsibility. The Commission not only throughout Afghanistan, but also asked the opinion of Afghan refugees residing in Iran and Pakistan. We have not consulted our supporters. We conducted the opinion poll using social science methods and our colleagues have gone to Pul e Surkh and have asked the opinion of one out of ten. It was not in this way that we invite our fans. I believe if we are to make fronts with them we could gather more than three hundred thousand people. If you ask people passing by the road, out of ten, nine of them will demand for the implementation of the process.

Q. How do you evaluate the gathering by jihadi leaders against the Human Rights Watch?

A. They did not say to the people prior to gathering them in the stadium that they are going to talk against justice. They had only said to the people that they are going to celebrate a day. Imagine! They brought people to the stadium by cars. They had planned to bring together around two hundred thousand people but in the stadium there were hardly about ten to twelve thousand people. You can see in the election campaigns that when you give the rent and food for the people why would they not come? However, if we want to organize a convention in the name of justice and without giving anything to the people much higher number of people will be gathered.

Q. I have seen some of the criminal cases of murder that took place before the Transitional Administration. Due to lack of evidences the cases were not pursued. How can we solve the cases of those who were killed during armed conflicts and there are no evidences to prove them How do you evaluate it from the perspective of crimes against humanity?

A. I think all the witnesses have not disappeared. It is clear where the conflicts took place. People still remember that who were indulged in wars and who killed whom? Wherever the war happened it caused many casualties either in Kunar between the government and jihadi forces or the conflicts between jihadi forces or the two Arab forces. The time and victims of these wars are clear. Still the witnesses are alive and if for example they are dead their families are alive. In Ghazni we knew and they knew that how many of them went for fighting. In Jaghori, I was the witness of one incident that who was killed by whom and who went on house search operation and under the pretext of searching hand grenade they touched the breasts of women. Those women are still alive with the difference that at that time they were bride and now they are old and they still remember.

Q. During my interviews with people, they suggest that instead of implementing the process of transitional justice we should provide the children of victims the opportunities to go to school and universities or give them scholarships. Help them with economic means. What do you think and how this method can be helpful to implement the process of transitional justice?

A. It is one of the activities. But before everything the victims should be identified.

We cannot process it unknowingly. Because I say the victims of April coup have grown old or maybe they are killed and their small children are alive. I say, why should we run away from responsibility? Why should we be afraid and lack the courage to confess that we committed those mistakes? Or maybe these mistakes were committed by us as we were ignorant or did not understand because we were young at that time, now we understand and you should forgive us. Whoever is sacrificed is unknown, neither him nor his children.

Q. Some say the National Amnesty Bill passed by the Parliament is not an amnesty bill as private rights of individuals are still preserved and the Bill is looking into the future. Do you believe it is only a justification?

A. In my opinion, they want to justify more than anyone else. When you look into future what is the need of amnesty bill? The bill was approved to stop transitional justice for sometimes and escape the liability. Or at least they silence the mouth of advocates of transitional justice and burry justice. There was no point that they really thought for Afghanistan. I believe it is good to act as soon as possible. However, in my view, I believe it is transitional justice when somebody like Pinochet dies and people come out and dance in the streets. It is a kind of justice.

When people found the grave of Taraki they burnt his bones, it is also a type of justice. They could not try him when he was alive. If we are to fully ignore justice, then people will not sit silent and will turn to revenge. It is not important that in revenge one uses gun or suicide attacks. Some of the commanders cannot move without a bodyguard. Why is that so? If they are loved by people or they are saviors, why they keep bodyguards? Which one of them can move without ten or twelve soldiers?

Q. I need your opinion regarding Commission for Strengthening Peace? How the CSP has been successful in establishing peace? Or it is only a show? Some of the interviewees believe that it is useless. What is your opinion?

A. I believe whatever one performs should have a clear and transparent mechanism. There should be a type of transparency for the person who joins the peace process and the people. When the CSP claims that they have brought eight thousand insurgents to peace and they have laid down their weapons and accepted the constitution of Afghanistan why the ratio of insurgency does not decrease? Eight thousand is a great figure for the insurgency to decrease and the Taliban who are indulged in war. Why the ratio of violence does not drop instead of mounting every day?

Q. How would you compare the Commission for Strengthening Peace and the National Reconciliation Policy of the Hizb-e Democratik-e Khalq?

A. I believe that the National Front of Fatherland during Najib allowed everyone to join them. Since I remember a number of boys were sent by embassies in Iran and Pakistan to encourage people join the government. They were working amongst the mujahedin too. There were many mujaheding commanders who took money and were engaging in most of the civil wars and spread of disunity.

At that time they used some mujahedin commanders to weaken the mujahedin and spread disunity in their ranks. Some of the commanders were fighting in both sides of the mjahedin and the government. There are evidences that show planes landing and providing money for them. All the people could see. Now they are only given an exemption card and are not told to preach to attract others also to join the process or create divisions in the ranks of Taliban. In the meantime, the mechanisms of both National Reconciliation of that time and CSP of this time are not transparent.

Q. Related to CSP, what is your definition of peace?

A. I believe, whenever people feel that they can live with complete security. Security for me does not mean to end the war. As humans, we should have the security of, for example, facilities for health. Peace is related to individual and human security. We should have security for our child that goes to school, returns back and is not kidnapped.

Q. Let us return to the violators of human rights, those who are part of the public offices. As I have interviewed with some people they say that these people are elected with the vote of people and they have public support. They believe the process of transitional justice cannot be implemented. What is your opinion?

A. I believe there is no doubt that people have voted but the vote of people is only from that village where no one else could be candidate. If we say that they have public support then Golabzoy is also supported by the people and the mujahid who calls himself the savior also has won votes. Then what is the difference? Why did they fight each other?

Q. As final question what is the shortest way to achieve both justice and peace in the country? In a situation when we lack a powerful government?

A. I believe it is not the solution to forget all the issues. Talking of justice, symbolic measures or even commemorations of the Victims Day, honoring the day of victims are what that can amend the wounds. Others also should not show any reactions; those who are charged and accused. Those who are in high political positions and still use their powers should be stopped. Clearance and good governance is the only way that can treat the wounds of people. Trust is the fundamental base for the implementation of transitional justice.