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Assadullah Sarwari, one of a handful of convicted Afghan war criminals, has been released from prison in Kabul. As head of the intelligence service immediately after the 1978 communist coup d’état, he was responsible for the torture and arbitrary execution of thousands of detainees. Yet, the lack of transparency and the irregular and illegal aspects of his detention and prosecution (including 13 years of pre-trial detention and a continued three and a half years of detention after his sentence had been fulfilled) point to fundamental problems with the Afghan state’s capacity to deal with complex war crimes. This is significant, argue AAN’s Ehsan Qaane and Sari Kouvo, not the least in the light of the International Criminal Court’s (ICC) ongoing preliminary examination.

Assadullah Sarwari was the first intelligence chief after the April 1978 military coup d’etat which brought Nur Muhammad Tarakay and his Hezb-e Dimukratik-e Khalq-e Afghanistan (the People’s Democratic Party of Afghanistan, or PDPA) to power. The intelligence agency, AGSA, (1) launched mass purges of those it considered its enemies, with mass arrests, summary executions and disappearances (for detail and background, see the Afghanistan Justice Project’s (AJP) report and two AAN dispatches, here, and here). After the Soviet invasion in December 1979, a different wing of the PDPA seized power and the new president, Babrak Karmal, appointed Sarwari as deputy prime minister. Soon after, however, he was removed from government and posted (or exiled) as ambassador to Mongolia. For reasons that are unclear, Sarwari returned to Afghanistan in May 1992, after the overthrow of the last PDPA government and the takeover of the mujahedin – and was then detained. Below, we will first provide a chronology of Sarwari’s detention and trial and then discuss what the proceedings against him tell about justice in Afghanistan.

Chronology of events

26 May 1992: Arrest

Sawari returned to Afghanistan on 11 May 1992. Two weeks later, he was arrested from his home in Macrorayon, a part of Kabul consisting of Soviet-style prefabricated housing blocks, and accused of treason by the mujahedin forces of Shura-ye Nazar, a network within the Jamiat-e Islami faction led by late commander Ahmad Shah Massud, who was then, officially, defence minister in the Islamic State of Afghanistan government.

1992 to 1993: Detention in Kabul

From 1992 until the beginning of 1993, Sarwari was detained in one of the detention facilities belonging to Shura-ye Nazar in Kabul. When forces led by (now Vice-President) Abdul Rashid Dostum and Gulbuddin Hekmatyar (from respectively the Jombesh and Hezb-e Islami factions) started shelling Kabul at the beginning of 1994 (on 10 Jadi 1372,or 31 December 1993), Sarwari was transported to a Shura-ye Nazar detention facility in the Panjshir, together with several hundred other prisoners and detainees.

1993 to 2005: Detention in Panjshir

Sarwari stayed in detention in Panjshir until 2005. At some point in the first years of the post-Taleban administration, Sarwari wrote a letter to President Hamed Karzai asking for his release. He was not released, but in 2005 he was transferred back to a National Directorate of Security (NDS) detention facility in Kabul.

2005 to 2007: National Directorate of Security (NDS) trials

In 2005, Sarwari was charged by an NDS prosecutor. The trial against him was held in the Primary Court of National Security in Kabul. After three public hearings, Sarwari was found guilty of committing war crimes (torture, murder and forced disappearances) while he was head of AGSA in 1978/79 and, on 25 February 2006, sentenced to death. In the absence of an article relevant for war crimes in the Afghan Criminal Code, the court relied on Article 130 of the Afghan Constitution. According to this article, courts shall, if there is no provision in other laws, “in pursuance of Hanafi jurisprudence, and, within the limits set by this Constitution, rule in a way that attains justice in the best manner.”As will be discussed in more detail in the second part of this dispatch, Judge Bakhtiari who handled the case made it clear that, in his view, this case concerned war crimes that were not covered by the Afghan criminal code, and that he therefore relied on Article 130 of the Constitution for Sarwari’s conviction.

The court proceedings were criticised by the Afghanistan Justice Project, an Afghan-international human rights watch group, and others, for failing to uphold international standards.

Sarwari appealed against the verdict. In the appeal, he argued that because as head of AGSA he had had a military rank, he should not have been tried in a National Security Court, but rather in a Military Court. On 12 December 2006,the Appeals Court of National Security confirmed that it did not have jurisdiction over the case, and the case was moved to the Military Appeals Court in Kabul.

2007 to 2008: Military Court trials

On 3 May 2007, the Military Appeals Court sent a request to the Supreme Court to refer the case to the Military Primary Court. The request was granted, and referred on 22 August 2007. A year later, on 20 July 2008, Sarwari was sentenced to 18 years in prison for misusing his official powers when he arbitrarily killed detainees, and for treason. As the session was held behind closed doors, there is no public information about the details of the proceedings. Sarwari and the prosecutor both appealed against the verdict. On 22 October 2008, the Military Appeals Court sentenced Sarwari to 19 years in prison on the basis of the same accusations. The prosecutor had demanded the death penalty.

While the first session in the appeals court had been held behind closed doors, the latter sessions were public, with journalists and relatives of victims present. According to Sadiq Mossadeq, an Afghan freelance journalist who was following the case, Sarwari argued in his defence that he should not be on trial for war crimes, as hundreds who had committed similar crimes now held senior government positions. Sarwari was not satisfied with the final verdict of the Military Appeal Court and announced he would request a review of his case by the Supreme Court. The Supreme Court accepted his request, and the case was sent back to the Primary Military Court. According to the Afghan Criminal Procedure Code, the Supreme Court can ask for a retrial under certain circumstances. AAN has been unable to find out the exact reasons for the Supreme Court to accede to Sarwari’s request for a retrial.

2009 to 2012: The Military Court retrial

0n 26 April 2009, the Military Primary Court, at Sarwari’s retrial, sentenced him to 20 years in prison. Its verdict read:

We, the judges of the [Primary] Military Court of National Security, in the judicial session on the above mentioned date, in unanimity and presence of all parties, convicted you, Assadullah (Sarwari), the head of AGSA during the presidency of Tarakay, to seven years in prison on the accusation of execution of detainees in [Kabul’s] Pul-e Charkhi prison without trial under article 42 of the military code, to five years in prison for neglect of duty pursuant to article 43 of the same code, and to 16 years in prison from the date of your arrest for murdering detainees in Pul-e Charkhi jail according to articles 396 and 39 of the penal code and to 20 years according to article 158 of the penal code.

Finally, on 18 June 2012, the Military Appeals Court confirmed the 20-year prison sentence that had been given by the Military Primary Court (2), but it used different articles of the law and added a new accusation: treason. The final verdict of the Appeals Court read:

We, the judges of the Military Appeals Court, in the judicial session on 29/3/1391 (18 June 2012), in unanimity and presence of all parties, based on article 33 of the Structure, Duties and Jurisdictions of the Courts Code, dismissed the decision of the Military Primary Court, which was issued on 26 April 2009, due to use of the wrong [legal] articles and codes. [Herewith] we have sentenced you to four years in prison for misuse of power and neglect of duty, under article 224 of the military penal code (usulnama-ye jezai-ye askari), to 20 years in prison for illegal detention of our innocent citizens in Pul-e Charkhi jail and later murdering some of them without trial and legal procedures, under article 396 with considering paragraph 2 of article 38 of the same code, and to 16 years in prison for treason pursuant to article 156 of the penal code […]. The private rights claims of those victims’ families whose names are included in this case, are legally protected.

Neither Sarwari or the prosecutors were content with the verdict and, again, both appealed to the Military Appeals Court. The Attorney General, Ishaq Aleko, requested another round of appeal on 20 June 2012. However, the Structure, Duties and Authorities of the Courts Code does not allow a case to be addressed more than three times by the appeals courts. The Supreme Court replied on 6 March 2013 that the verdict of the Military Appeals Court on 18 June 2012 was the final decision. The case was finally closed.

November 2016: Sarwari is released from prison

Prison terms in Afghanistan are counted from the day a person is detained. In Sarwari’s case, this was 26 May 1992, as also mentioned in the Military Appeals Court verdict of 18 June 2012. This means that based on the court’s decision, Sarwari should have been released on 26 May 2012, ie 25 days before what would be the final decision of the Military Appeals Court. So there was an expectation, apparently also from the court’s side, that Sarwari would be released after the trial. However, he was not released and stayed in prison for three and a half more years. AAN has repeatedly tried to get clarification from the Attorney General’s offices as to why there was such a long delay, but no official explanation has been forthcoming. However, a source has suggested to AAN that the reasons may have been political and that Sarwari could only be released after Hazrat Sebghatullah Mujaddedi, the first mujahedin president in 1992, agreed. Dozens of Mujaddedi’s family members were detained and disappeared by AGSA (see here; more detail here).

Justice, accountability and war crimes prosecutions in Afghanistan

AAN has previously reported about the efforts to promote transitional justice, accountability for war crimes and gross human rights violations, and access to justice for victims (see here), as well as the ongoing ICC preliminary investigation in Afghanistan (see here, and here).

So far, the steps towards accountability have been few and far between. In 2005, the Afghan government adopted the now long forgotten Action Plan for Peace, Justice and Reconciliation. The Action Plan sought to promote reconciliation with a focus on documentation, truth-seeking, victim-focused measures and strategies for accountability; it expired in 2008 (see here). Almost at the same time, a parliamentary committee started drafting an amnesty law. This law, passed in May 2008 by the Afghan parliament and published in the Official Gazette in 2008, provides blanket amnesty for all involved in the decades-long conflict in Afghanistan (see here). The choice for amnesty instead of accountability was continued in the Afghanistan Peace and Reconciliation Program (APRP) that aimed to make peace with insurgents and promoted ‘political amnesty’ for those reconciling. This trend has continued in the recent peace negotiations with Gulbuddin Hekmatyar and Hezb-e Islami (see AAN analysis here and here).

There have been some alternative efforts to at least seek solace and recognise the experiences of victims of war crimes in Afghanistan. However, two official efforts that document war crimes committed between 1978 and 2001 – a report by the UN High Commissioner for Human Rights’ and a mapping exercise by the Afghan Independent Human Rights Commission (AIHRC) – remain officially unavailable (the AIHRC’s report has never been published; the UN report was briefly published online and then removed; a cached version can be read here). The main successes of the nascent movement of victims of war crimes were to make the International Human Rights Day, 10 December, also a national day for war victims in Afghanistan and to get the road leading to the infamous Pul-e Charkhi jail named the “War Victims’ Road.”

Although the state can now not prosecute those who committed war crimes or crimes against humanity, the Amnesty Law does leave open the option for victims to bring individual claims against perpetrators, but none have dared do so, so far. This option was also left open by the Military Appeals Court in its 2012 verdict against Sarwari.

One other legal option is the International Criminal Court (ICC). The ICC began a preliminary examination of potential cases in Afghanistan in 2007 and has since then progressed slowly. The first phase of the examination focused on identifying whether crimes that meet the ICC’s‘gravity threshold’ had been committed in Afghanistan after the ICC gained jurisdiction (2003 onwards). This phase was concluded by the 2016 Preliminary Examination Report, according to which, crimes against humanity and war crimes that meet the ICC threshold had indeed been committed in Afghanistan in the post-2003 period, by Afghan government forces, the US military and CIA and the Taleban (see earlier AAN analysis here). The next step for the ICC is to examine whether Afghanistan can be considered able and willing to prosecute these crimes nationally. The ICC is complementary to national jurisdiction and cannot pursue prosecutions when there is political will and necessary capacity to prosecute crimes in national courts.

There have been next to no war crime-related prosecutions in Afghanistan in the post-2001 era. The preliminary examination reports mentions just two cases: the pre-Amnesty Law conviction of Ettehad-e Islami commander Abdullah Shah for murders committed in 1992-93 during the civil war in Kabul and “reportedly two senior members of the Haqqani Network… prosecuted and convicted by a national primary court in August 2016 for an unknown alleged conduct” (see here). While the lack of prosecutions provide some evidence of the Afghan government’s willingness, or lack thereof, to prosecute alleged perpetrators of war crimes in Afghanistan, and the Amnesty Law, of course, underlines its unwillingness to do so, the detention and prosecution of Assadullah Sarwari is also telling in terms of the Afghan state’s current ability to prosecute complex crimes. Significant shortcomings of the Afghan justice system that were exemplified in the Sarwari trial include:

Lack of relevant provisions in the criminal code: In 2005, when Sarwari was first prosecuted, there were no clear criminal law provisions for war crimes in Afghanistan. The Primary Court of National Security decided to use article 130 of the Constitution, according to which Hanafi jurisprudence has precedence. Judge Bakhtiari, the head of bench of the Primary Court of National Security, told AAN in an interview in 2012,“The Afghan penal code is silent about war crimes. Therefore, I used article 130 in Sarwari’s case.” The legality of using article 130 in this case has been disputed, among others by by Lutful-Rahman Sayid, a member of the Independent Commission for Overseeing the Implementation of the Constitution (ICOIC) who is writing a PhD on this article. In his view, article 130 cannot be used in criminal cases, as the drafters of the constitution had only intended its usage in civil cases.

The Military Court did not use article 130 and instead referred to articles in the Afghan Criminal Code relating to murder, illegal detention and treason. This, however, was also disputed. According to the files on Sarwari’s case that AAN has received, one of the reasons why the Supreme Court referred the case back to the military courts was the possibly incorrect use of the articles:

The Supreme Court was not convinced by the verdicts of the military courts in relation to the usage of articles relevant to the accusation and the attribution of the accusation to Sarwari. Therefore the Supreme Court sent back Sarwari’s case to the lower courts for correction of the used articles.

Lack of clarity about which court has jurisdiction: The shifting of Sarwari’s case from the national security courts to the military courts shows that the Afghan justice system was quite unclear on how and where war crimes should be prosecuted. On 29 September 2012, in an interview with AAN, Judge Bakhtiari argued that the national security courts were the relevant court for this case. However, those in favour of the military courts as competent argued that the national security courts were established based on the Crimes against Internal and External Security bill, which came into force ten years after the committing of the crimes attributed to Sarwari. Therefore, this law, they argued, and any institutions that were established based on this law, did not have the jurisdiction to handle Sarwari’s case.

Length of the proceedings: Sarwari’s trial started in 2005 and ended in 2012. According to the Afghan Criminal Procedure Code, signed in February 2014 by President Karzai, a suspect or an accused shall not be detained for more than 11 months during the criminal proceedings; the case must be finalised during this period. In Sarwari’s case, this principle was violated. Moreover, he was subsequently kept in prison for three and half years after his term had ended.

Limited access to a defence lawyer: Sarwari was initially not provided with a defence lawyer. He later received one through international support, although he dismissed him, claiming that the lawyer had betrayed him. Another lawyer that was provided by the government, was also dismissed by Sarwari, this time for being “too weak.” Sarwari ended up defending himself.

Victim participation: Dr Sharif, a war crimes victim, who together with his six brothers was detained for two and half months by AGSA and has not seen his eldest brother since, told AAN some days after Sarwari’s release from jail: “In 2006, I was one of the victims who gave testimony in court. I remember that the court convicted Sarwari to death. After that session, the court never informed me about the further proceedings of the case. Now he is released.” He continued: “I gave testimony against him, because I wanted to see the death of the murderer of my brother.”

Other victims also stressed that the court proceedings had lacked transparency and information had been scarce, which was also AAN’s experience. Only by being proactive and repeatedly asking after the case did AAN receive information concerning the three first sessions of the Primary Court of National Security and the last session of the Appeal Military Court – and only informally. The lack of information limited the participation of victims and their families. Such participation is a norm in trials addressing war crimes. Indeed, the victims have a right to see justice carried out with their own eyes. For practical reasons, also, this is how pain is healed.

Conclusion: the Afghan justice system’s limited ability to handle war crimes

Assadullah Sarwari is now 67 years old and apparently not in good health. It is therefore unlikely that there will be any further prosecutions against him, although the option for victims to bring civil proceedings against him still exists. In today’s Afghanistan, it may be too dangerous for victims to individually pursue justice, as their security is not assured and many likely offenders are in official positions, including in the judiciary.

The other case of a convicted war criminal recently released, Sarwar Zardad tried and found guilty of kidnap and torture committed during the civil war in a British court, and released and deported to Afghanistan in December 2016 also shows the legal and political complexities surrounding war crimes trials. Zardad is accused of other civil war-era crimes, including murder, which could be brought to trial in Afghanistan. However, the Attorney General’s Office has said victims could bring prosecutions, but the state would not (email seen by AAN), presumably because he is protected by the Amnesty Law. Moreover, while the witnesses who testified against Zardad are now living in fear of retribution, Zardad himself was welcomed by supporters, some of them armed, insider the security perimeter, at Kabul International Airport (see previous AAN dispatch here).

The Amnesty Law is one factor that may lead the ICC to decide that the Afghan state is unwilling to prosecute war crimes trials. Additionally, Sarwari’s case exemplifies its limited ability to do so, illustrating the lack of clear criminal law provisions, the lack of clear procedures and the lack of a proper administration of justice.

The ongoing efforts to reform the Afghan Criminal Code and the Criminal Procedure Codes may address some of these shortcomings. The draft Criminal Code, although in its very early draft stages, does enshrine international crimes – war crimes, crimes against humanity, the crime of genocide and the crime of aggression – and makes use of the wording of the Statute of the International Criminal Court. The punishments for these crimes are capital punishment and life imprisonment of 15 to 20 years in jail. The new Afghan criminal procedure code that came into force on 22 February 2014 also recognises international crimes that are not affected by the principle of statute of limitations. However, the new code does not clarify the role and protection of witnesses or what would be the competent institutions for proceedings involving international crimes.

Most importantly, the relationship between the Amnesty Law, the new draft Criminal Code and the new Criminal Procedure Code has not been clarified. Would the new codes mean that suspected war criminals will no longer enjoy impunity, or not? The Afghan justice system is, at best, taking only baby steps towards being able to prosecute war crimes. Even if the Afghan state manages to deal with the technical, legal obstacles of putting on war crimes trials, political opposition from many of those in the highest circles of government would still remain.

 

 

(1) The acronym AGSA derives from the Pashto De Afghanistan de Gato Satelo Edara (Department for the Protection of Afghanistan’s Interests).

(2) According to Afghan law, prison sentences are not cumulative but run concurrently, hence the total of 20 years.

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