Forgotten and Forgiven Perpetrators: Discussing the Rise of the Taliban in the Context of Afghanistan’s Transitional Justice Processes

Despite a twenty-year long battle with the insurgent group Taliban, which cost both the United States and Afghanistan many lives, money and time, the insurgents won. The victory came as a surprise, even to the Taliban, who were not expecting their takeover of Afghanistan to be so easy.

The Taliban’s victory is puzzling for many reasons, one of which is that they won the support of the people despite their horrible human rights record. To address this puzzle, I turn to Afghanistan’s transitional justice process, which was initiated in 2010. It is important to explore Afghanistan’s transitional justice process, because its shortcomings shed some light on why, despite the Taliban’s numerous human rights’ violations, their takeover of the country was met with little resistance. It’s also important to note that I am relying heavily on Ganesh Sitarman (2009)’s seminal book Counterinsurgency, the War on Terror, and the Laws of War, where he discusses the relevance of transitional justice mechanisms for counterinsurgency operations.

Transitional justice mechanisms refer to a set of activities that focus on addressing human rights abuses and victim trauma in a post-conflict setting, meaning after the end of a conflict in the country. One purpose of setting up transitional justice mechanisms is to make the wider public aware of the perpetrators’ crimes. In a departure from typical practice, Afghanistan launched its transitional justice operations during its conflict with the Taliban. This presented challenges because there was no opportunity to make the mid and senior-level officers of the Taliban stand trial for their human rights crimes.

Under the transitional justice law of 2010, the Afghan government of Hamid Karzai decided to offer amnesty to Taliban operatives despite their many human rights crimes. Whereas amnesty is not an unusual step in transitional justice processes, offering amnesties to insurgents without holding them accountable for their crimes effectively undermines victims’ rights. An amnesty for crimes also serves to re-legitimise the insurgents in the eyes of people, helping to bring them back into civic life. Without justice for the victims, the grievances of the society are left unaddressed, ultimately damaging the prospects for peace and reconciliation in a divided society.

It should be noted that the Taliban are not the only group accused of gross human rights crimes in Afghanistan; the War in Afghanistan resulted in heavy civilian casualties for which a range of actors bear responsibility. Specifically, the drone attacks by the United States against the Taliban left many victims who continue holding grievances against the United States for the deaths of their family members and relatives. A recent New Yorker article by Anand Gopal (2021) also illustrated how the United States’ backing of known human rights offenders in Afghanistan, such as Amir Dado, incentivised some locals to prefer the Taliban as the lesser evil out of the two. With grievances against the United States left unaddressed under Afghanistan’s transitional justice framework, an opportunity arose for the Taliban to target those grievances for their popularity.  While it is difficult to trace the extent of the Taliban’s propaganda, we know that it builds on the frustrations and fear of the Afghan people, specifically the victims of the US-led coalition forces; these grievances feed into to the Taliban’s portrayal of the coalition forces as infidels and invaders (Dorronsoro, 2009).

As the world and the people in Afghanistan come to grips with the reality of Taliban rule, the question becomes, “what now?” We are receiving daily reports of human rights being curtailed by the new Taliban government. Some literature on conflict and peace suggests that one way to ensure peace in a country is to hold perpetrators responsible by ‘naming and shaming’ them. Even before the Taliban rose to power, they were treated as legitimate actors in Afghanistan by countries in the international system, such as Pakistan, China, Russia; and at times – the United States. To ensure justice and – more importantly – peace in Afghanistan, the Taliban must be held responsible for past and current human rights crimes. International organisations and actors can also incentivise the Taliban to respect the human rights of their people by offering preferential trade agreements, which promise trade benefits in exchange for Taliban’s adherence to protecting human rights of their people (Hafner-Burton, 2007).

Finally, the United States and other members of its coalition forces must address the effects of their actions in Afghanistan over the past two decades; doing so would help in alleviating victim trauma and pave the path for peace and reconciliation in Afghanistan.

Cited Works:

Carlson, S. L. (2012). To Forgive and Forget: How Reconciliation and Amnesty Legislation in Afghanistan Forgives War Criminals while Forgetting their Victims. Penn St. JL & Int'l Aff., 1, xix.

De Luce, D., Yusufzai, M., & Smith, S. (2021). Even the Taliban are surprised at how fast they’re advancing in Afghanistan. NBC News. https://www.nbcnews.com/politics/national-security/even-taliban-are-surprised-how-fast-they-re-advancing-afghanistan-n1272236

Dorronsoro, G. (2009). The Taliban’s winning strategy in Afghanistan. Carnegie Endowment for International Peace. https://carnegieendowment.org/files/taliban_winning_strategy.pdf

Feroz, E. (2020). Afghans Wonder if America Will Ever Acknowledge Its Alleged War Crimes. Foreign Policy. https://foreignpolicy.com/2020/03/27/afghanistan-drones-america-legacy-taliban/

Gopal, A. (2021). The Other Afghan Women. The New Yorker. https://www.newyorker.com/magazine/2021/09/13/the-other-afghan-women

Hafner-Burton, E. M. (2005). Trading human rights: How preferential trade agreements influence government repression. International Organization, 59(3), 593-629.

Sitaraman, G. (2009). Counterinsurgency, the War on Terror, and the Laws of War. Virginia Law Review, 1745-1839.