Can Afghanistan Accept Amnesties for War Crimes in Peace Talks with the Taliban?
Samantha Gogol Lint[*]
After six months of delays, the Afghan government and the Taliban have begun peace talks in Doha, Qatar. The negotiations follow an initial agreement between the United States and the Taliban created in February 2020, to which the Afghan government was not a party.
With a rise in violence across the country, the pressure of Covid-19, revelations of Russia’s bounty on coalition forces, and disputes over agreed-upon prisoner releases, the “intra-Afghan” negotiations seemed unlikely to materialize over the summer. After the release of the final six Taliban prisoners, the parties finally arrived in Doha in early September.
Though the success of the talks in reaching a final agreement is far from guaranteed, history and rhetoric from both sides suggest that amnesties for the Taliban’s atrocities will likely be on the table. But can the Afghan government bargain away accountability, in particular, for international crimes? The short answer: it depends, with different interpretations of customary international law tipping the scale in either direction. Even with the most permissive interpretation, however, there are good reasons not to grant these amnesties.
Amnesties can serve an important function to legitimate and protect conflict participants. This can be particularly important for opposition forces in internal (or “non-international”) armed conflicts, who otherwise would not benefit from the combatant immunity which excuses acts during war that would be crimes in times of peace, such as killing enemy fighters. While such immunity is provided for by the Geneva Conventions in international armed conflicts, it does not extend to opposition forces in internal conflicts such as Afghanistan’s. Granting amnesties to fill the immunity gap in internal armed conflicts can provide a means of integrating and legitimizing former opposition forces in a post-conflict order. Amnesties, however, have also been used to shelter parties and individuals who have committed atrocities, and to close the door on truth telling and accountability to victims of heinous crimes. In Chile, for instance, amnesties have shielded many in the Pinochet government from accountability for crimes such as enforced disappearances. Though the practice of granting amnesties for peace, including for international crimes, is hardly new or unusual, the legality of such amnesties has come under question in recent years, and the case of Afghanistan demonstrates why.
As a signatory since 2009, the Afghan government is subject to the provisions of Additional Protocol II (“AP II”) to the Geneva Conventions, which governs non-international armed conflicts (“NIACs”) such as the conflict in Afghanistan. Article 6(5) provides that: “At the end of hostilities, the authorities in power shall endeavor to grant broadest possible amnesty to persons who have participated in the armed conflict.” International legal authorities differ as to whether this provision extends to war crimes and crimes against humanity, and whether, separately, there is an obligation to investigate and prosecute such crimes in a non-international armed conflict.
The Afghan government, should it desire to take amnesties for war crimes and crimes against humanity off the table, however, can find ample support from the International Committee of the Red Cross (“ICRC”) and other international organizations, non-governmental organizations, and academics that Additional Protocol II and customary international law prohibit amnesties and impose an obligation to investigate and prosecute such crimes. How “customary” such obligations really are is up for debate, as state practice around the world has permitted amnesties, including for atrocities, from Sierra Leone to Chile to Cambodia. Even with recent pro-accountability trends and anti-amnesty rhetoric from the ICRC and the United Nations, amnesties have continued to crop up in peace agreements in places like Sudan as recently as 2018. In short, to what extent the Geneva Conventions and customary international law prohibit amnesties in a context like Afghanistan is unclear, and the government could find legal support in both directions.
The more compelling – and concrete – legal obligations that should give the Afghan government pause before agreeing to amnesties are found in other international treaties to which Afghanistan is a signatory. As a party to the Rome Statute – and already under an investigation at the International Criminal Court (“ICC”) – Afghanistan has an obligation to extend its jurisdiction to the war crimes and crimes against humanity the treaty encompasses. Agreeing to domestic amnesties for Rome Statute crimes, such as extrajudicial killings or torture, would seemingly contravene this obligation. However, as with the debates over AP II, to what extent the Rome Statute indeed binds States Party against agreeing to domestic amnesties is also contested. The ICC Appeals Chamber itself in a March 2020 decision stated that “international law is still in the developmental stage on the question of acceptability of amnesties.”
Finally, under the Convention against Torture (“CAT”), Afghanistan has an obligation to investigate and prosecute any state officials who have committed torture. In fulfilling its obligation to criminalize torture enshrined in Art. 4 of the CAT, Afghanistan could adopt a definition of torture beyond the limited state-sponsored torture definition of Art. 1.  Perhaps even more compelling are the CAT obligations vis à vis victims, requiring that any State Party “ensure in its legal system that the victim of an act of torture obtains redress.” In meeting its obligation to ensure a means of redress, Afghanistan may likewise use a definition of torture that includes acts committed by the non-state actors, such as the Taliban, and thus be prevented from extending amnesties that would thwart victims’ ability to seek redress. Though the CAT may not be the ideal vector for accountability in Afghanistan given its narrow application to “official” actors, it could provide an additional tool depending on how broadly the Afghan government wants to apply its obligations beyond the minimum requirements.
Proponents of amnesties point out that amnesties may bring parties to the negotiating table and make peace possible where it otherwise would not be. Other arguments frame amnesties as a “stabilizing force” to balance interests, promote respect for international humanitarian law, and to prevent resurgence of armed conflict.
Critics, by contrast, argue that – for war crimes and crimes against humanity especially – amnesties do not stabilize the post-conflict situation. Instead, amnesties leave animosity unresolved, communicate a tolerance for the violation of the rule of law, and reduce civilian trust in the post-conflict system.
In Afghanistan, there is strong evidence that citizens do not support amnesties. A study by the Afghan Independent Human Rights Commission in 2005 found that, though views varied regionally, 60.5% of those surveyed rejected the idea of “amnesties or pardons for anyone who confessed their crimes before an institution created for transitional justice.” A majority of respondents, however, also held the view that trials should be “restricted either to those who had committed serious [human rights] violations and their commanders, or commanders only,” suggesting that some Afghans “may be favorably disposed to amnesties for non-serious crimes or those other than commanders, particularly if they confess.”
If amnesties are enacted, the history of failed peace attempts in Afghanistan suggests that the larger agreement could fail, in which case the government will have sacrificed accountability – and potentially legitimacy in the eyes of civilians – without ultimately gaining peace. It would also seemingly contradict what the Afghan government has maintained are critical to any deal, namely the preservation and protection of women’s rights and minority rights, as women and minorities are two groups that have been particularly harmed by the Taliban. In fact, Afghanistan already experimented with amnesties as part of a peace process in 2009, through the National Reconciliation, General Amnesty, and National Stability Law, which authorized amnesty for hostile acts against the government prior to 2001 and created a path for amnesty for subsequent crimes. The program saw only limited success in terms of reconciliation of non-state fighters and, clearly, did not lead to sustained peace.
Finally, even if Afghanistan were to offer amnesties, their protection would not extend beyond its borders. Under the principle of universal jurisdiction, domestic courts in other countries could try perpetrators of war crimes or crimes against humanity that end up in their jurisdiction. Additionally, international courts like the ICC would not be barred from prosecuting individuals for international crimes even if they were covered by a domestic amnesty.
In the end, the Afghan government will have to decide where it falls on the accountability versus “peace before justice” spectrum. While the peace process may or may not lead to a final agreement in the immediate future, the issue of amnesties will continue to loom over any future contemplation of a post-conflict plan. The issue is complicated, with risks and challenges on either side, but what is certain at this point is that the victims of international crimes committed during the decades-long conflict have yet to find justice.
[*] Samantha Gogol Lint is a graduate of Harvard Law School, J.D. Class of 2020.
 Matthew S. Schwartz, Afghanistan-Taliban Talks Begin In Attempt to End 19 Years of Bloodshed, National Public Radio (Sept. 12, 2020), https://www.npr.org/2020/09/12/912294791/afghan-taliban-talks-begin-as-long-warring-sides-seek-end-to-decades-of-bloodshe.
 Agreement for Bringing Peace to Afghanistan Between the Islamic Emirate of Afghanistan Which is Not Recognized by the United States as a State and is Known as the Taliban and the United States of America, Feb. 29, 2020, U.S. Dept. of State, https://www.state.gov/wp-content/uploads/2020/02/Signed-Agreement-02292020.pdf.
 Taliban Violence Poses ‘Serious Challenges’ to Peace: Ghani, Al Jazeera (July 7, 2020), https://www.aljazeera.com/news/2020/07/taliban-violence-poses-challenges-peace-ghani-200707090118375.html.
 Secunder Kermani, Coronavirus Overwhelms Hospitals in War-Ravaged Afghanistan, BBC News (June 30, 2020), https://www.bbc.com/news/world-asia-53198785.
 Charlie Savage, Eric Schmitt, and Michael Schwirtz, Russia Secretly Offered Afghan Militants Bounties to Kill U.S. Troops, Intelligence Says, The New York Times (July 29, 2020), https://www.nytimes.com/2020/06/26/us/politics/russia-afghanistan-bounties.html.
 Ayesha Tanzeem, Prisoner Release Delays May Jeopardize Start of Intra-Afghan Negotiations, Voice of America (July 6, 2020), https://www.voanews.com/south-central-asia/prisoner-release-delays-may-jeopardize-start-intra-afghan-negotiations.
 Mujib Mashal, To Get Afghan Talks, Lots of Last-Minute Deals – and Nose Swabs, The New York Times (Sept. 15, 2020) https://www.nytimes.com/2020/09/15/world/asia/afghanistan-taliban-peace-talks.html; Susannah George, Emboldened on an International Stage, Taliban set for First Official Talks with Afghan Government, The Washington Post (Sept. 12, 2020), https://www.washingtonpost.com/world/asia_pacific/afghanistan-taliban-peace-talks/2020/09/11/e06a598c-ddb4-11ea-b4f1-25b762cdbbf4_story.html.
 Susannah George, Talks Between Taliban, Afghan Government to Begin this Weekend After 6 High-Value Prisoners Released from Afghan Custody, The Washington Post (Sept. 10, 2020), https://www.washingtonpost.com/world/asia_pacific/afghanistan-taliban-peace-talks-prisoner-release/2020/09/10/195c7f5e-f183-11ea-8025-5d3489768ac8_story.html.
 Mujib Mashal, Fatima Faizi, and Thomas Gibbons-Neff, Violent Attacks Plague Afghanistan as Peace Talks in Doha Slow, The New York Times (Sept. 19, 2020), https://www.nytimes.com/2020/09/19/world/asia/afghanistan-peace-talks-doha.html (“The talks are taking place in an environment of deep mistrust. Afghan officials suspect the Taliban want a swift political settlement, fearing that the insurgents are seeking to run out the clock on the withdrawal of the American troops, which is expected to be completed in the spring. Taliban officials say the government, which received a new five-year mandate last spring, is dragging out the peace process to complete its term in office.”).
 Afghanistan: Protecting Rights Essential in Negotiations, Human Rights Watch (Sept. 12, 2020) https://www.hrw.org/news/2020/09/12/afghanistan-protecting-rights-essential-negotiations (“Human Rights Watch expressed concern that the parties may adopt provisions similar to the 2008 amnesty law or the 2016 immunity deal, which excluded any accountability, even for war crimes. International humanitarian law encourages amnesties for insurgents at the end of hostilities, but excludes those responsible for war crimes.”).
 Guadalupe Marengo, Chile: Amnesty Law Keeps Pinochet’s Legacy Alive, Amnesty International (Sept. 11, 2015, 10:08 AM), https://www.amnesty.org/en/latest/news/2015/09/chile-amnesty-law-keeps-pinochet-s-legacy-alive/ (discussing that the amnesty law “was for many years a shameful wall behind which torturers and murdered were able to hide,” though by 2015 some cases were proceeding despite the existence of the amnesty law, such as the sentencing of 75 former secret police agents to 13 to 14 years in prison for the enforced disappearance of student Jorge Grez Aburto).
 Sean D. Murphy (Special Rapporteur on Crimes Against Humanity), Third Report on Crimes Against Humanity, ¶ 296, U.N. Doc. A/CN.4/704 (Mar. 6, 2017) (“[M]any publicists have found it difficult to conclude that there is a consensus on whether a complete prohibition on amnesties, even for serious crimes, has attained the status of customary international law. Rather, such publicists call for taking account of situation-specific various factors, such as whether the particular amnesty provisions amount to a blanket amnesty or provide relevant conditions, or exclude those most responsible for the crimes committed.”).
 Protocol Additional to the Geneva Conventions of Aug. 12, 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) art. 6, June 8, 1977, 1125 U.N.T.S. 609 [hereinafter AP II].
 Simon M. Meisenberg, Legality of Amnesties in International Humanitarian Law: The Lomé Amnesty Decision of the Special Court for Sierra Leone, 86 ICRC Current Issues and Comments 837, 849 (2004) (“For violations in non-international armed conflict of Article 3 common to the Geneva Conventions and of Additional Protocol II there is…no explicit provision entailing an obligation to prosecute or extradite…”). Cf. Amnesties and International Humanitarian Law: Purpose and Scope, 101 Int’l Rev. of the Red Cross 357, 357 (2019) (“Article 6(5) of Protocol II additional to the Geneva Conventions relating to non-international armed conflicts (NIACs) provides that, at the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict. Importantly, under customary IHL (as identified in Rule 159 of the ICRC customary IHL study), this excludes persons suspected of, accused of, or sentenced for war crimes in NIACs.”).
 Priscilla Hayner, Negotiating Peace in Sierra Leone: Confronting the Justice Challenge (2007), 14-15 https://reliefweb.int/sites/reliefweb.int/files/resources/3DC88BA696363FD3C12573AE00324BF2-Full_Report.pdf.
 See generally Marengo, supra note 11.
 During the 20 years following the fall of the Khmer Rouge, “the de facto Cambodian regime offered amnesty to members of the Khmer Rouge who agreed to change sides.” Craig Etcheson, The Challenges of Transitional Justice in Cambodia, Middle East Institute (Jan. 3, 2014), https://www.mei.edu/publications/challenges-transitional-justice-cambodia.
 See generally Amnesties and International Humanitarian Law: Purpose and Scope, 101 Int’l Rev. of the Red Cross 357 (2019).
 The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004/616* ¶ 64 (Aug. 23, 2004) (recommending that peace agreements and Security Council resolutions and mandates “[r]eject any endorsement of amnesty for genocide, war crimes, or crimes against humanity, including those relating to ethnic, gender and sexually based international crimes, ensure that no such amnesty previously granted is a bar to prosecution before any United Nations-created or assisted court…”); see also Rule-of-Law Tools for Post Conflict States: Amnesties, Office of the United Nations High Commissioner for Human Rights, HR/PUB/09/1 at 1-3, 11 (2009).
 South Sudan: No Amnesty for War Crimes, Human Rights Watch (Aug. 10, 2018), https://www.hrw.org/news/2018/08/10/south-sudan-no-amnesty-war-crimes (“The parties to the conflict signed a peace agreement on August 5, 2018, in Khartoum, agreeing to new power sharing arrangements and a timetable for further talks. On August 8, President Salva Kiir offered a ‘general amnesty’ to heads of armed groups involved in the nation’s five-year civil war as part of the agreement to end the fighting.”).
 Patricia Gossman, ICC Investigation Vital for Justice in Afghanistan, Human Rights Watch (June 11, 2020) https://www.hrw.org/news/2020/06/11/icc-investigation-vital-justice-afghanistan.
 Josepha Close, The ICC Refrains from Affirming a General Ban on Amnesties in the Gaddafi Admissibility Appeal Decision, International Law Blog (Apr. 20, 2020), https://internationallaw.blog/2020/04/20/the-icc-refrains-from-affirming-a-general-ban-on-amnesties-in-the-gaddafi-admissibility-appeal-decision (noting that whether amnesties are incompatible with international criminal courts is a separate question from whether amnesties are invalid under international law writ large. Further, “[w]ith respect to international criminal courts whose statue does not address the issue of amnesty, such as the ICC, the answer may be found in the relevant case law. Indeed, international criminal courts having dealt with amnesty laws have consistently refused to recognise the effect of such laws in depriving them of jurisdiction over alleged perpetrators of international crimes. They have done so on the basis of treaty obligations to prosecute international crimes, where relevant, or, where not, the jus cogens status of the norms prohibiting those crimes and the right of all states to prosecute the persons responsible.”).
 Prosecutor v. Saif Al-Islam Gaddafi, ICC-01/11-01/11-662, Decision on the ‘Admissibility Challenge by Dr. Saif Al-Islam Gadafi Pursuant to Articles 17(1)(c), 19 and 20(3) of the Rome Statute’, ¶ 96 (Mar. 9, 2020).
 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, arts. 4-7, 12, June 26, 1987.
 A Summary of the Convention Against Torture, REDRESS, https://redress.org/wp-content/uploads/2018/10/REDRESS-Summary-of-UNCAT-2018.pdf.
 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment supra note 24, art. 14.
 The Handbook of International Humanitarian Law 609 (Dieter Fleck ed., 3rd ed. 2013).
 International Committee on the Red Cross, Amnesties and International Humanitarian Law: Purpose and Scope, (Oct. 4 2017), https://www.icrc.org/en/document/amnesties-and-ihl-purpose-and-scope (“Provided that they are not extended to war crimes, amnesties can be an important incentive to respect IHL ‒ in particular for non-State armed groups in the context of NIACs.”).
 Fleck, supra note 27, at 690; Afghanistan: Protecting Rights Essential in Negotiations, Human Rights Watch (Sept. 12, 2020, 2:54 PM), https://www.hrw.org/news/2020/09/12/afghanistan-protecting-rights-essential-negotiations (“for a settlement to be sustainable, a future Afghan government will need to provide security, tolerate dissent, respect women’s rights, and prosecute serious rights violations.”).
 Afghan Independent Human Rights Commission, A Call for Justice: A National Consultation on Past Human Rights Violations in Afghanistan, 21, 41-43 (2005).
 Id., at 21-22.
 Sara L. Carlson, To Forgive and Forget: How Reconciliation and Amnesty Legislation in Afghanistan Forgives War Criminals While Forgetting Their Victims, 1 Penn. St. J. L. & Int’l. Aff. 390, 408 (2012) (“Throughout the course of the current war in Afghanistan, several programs have been enacted to afford insurgent fighters the opportunity to reconcile with the government. These programs have met with mixed results, but a common theme is that none has resulted in long-term implementation or sustained success.”).
 Ghani Vows Protection of Rights of Women, Minorities in Taliban Talks, Afghanistan Times (June 12, 2020), http://www.afghanistantimes.af/ghani-vows-protection-of-rights-of-women-minorities-in-taliban-talks/.
 Afghanistan: Protecting Rights Essential in Negotiations, Human Rights Watch (Sept. 12, 2020, 2:54 PM), https://www.hrw.org/news/2020/09/12/afghanistan-protecting-rights-essential-negotiations.
 Carlson, supra note 32, at 390 n.1.
 Patricia Gossman, ICC Investigation Vital for Justice in Afghanistan, Human Rights Watch (June 11, 2020, 4:47 PM), https://www.hrw.org/news/2020/06/11/icc-investigation-vital-justice-afghanistan.
 Prosecutor v. Kallon and Kamara, SCSL-2004-15- AR72(E) and SCSL-2004-16-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty ¶ 86, 90 (Mar. 13, 2004) (ruling that amnesties under the Lomé Peace Agreement did not bar the tribunal from prosecuting war crimes).