2009 | Nadia Khan - Justice to the Extent Possible: The prospects for accountability in Afghanistan
Justice in Afghanistan, in the wake of nearly three decades of war, is a complicated endeavor – further complicated by the Afghan government’s law signed into effect on February 20, 2007, granting amnesty to perpetrators of past crimes. This article attempts to establish the prospects for accountability in Afghanistan, in light of the country’s historical cycles of war and violence and the government’s attempts to trade justice for peace in the context of the ongoing armed conflict.
The author considers different mechanisms of accountability in domestic and international settings. She suggests that justice in Afghanistan is not entirely impossible, in spite of the increasing instability and in spite of the amnesty. Nonetheless, it is suggested that only one avenue produces realistic prospects for justice and accountability. Taking into account (i) the few attempts to hold war criminal accountable prior to the passage of the amnesty law, (ii) the lack of an operative judicial system, ensuring an independent, fair and impartial trial, and (iii) the reports of corruption and connivance, the author claims that it is unlikely that the Afghan government will bring more alleged perpetrators of serious crimes to justice. Thus, she contends that the only feasible alternative to provide legal redress to victims is the assertion of universal jurisdiction by states over jus cogens crimes. This argument is based, inter alia, on the fact that the International Criminal Court’s jurisdiction is only prospective and therefore cannot be exercised to investigate or prosecute crimes taking place before May 2003.