Human Rights Watch Practicum 2008 Accountability in Afghanistan, Kosovo and Argentina Adrian Weisell Dustin Friedman Laetitia Pactat Introduce Group. As a part of a larger Human Rights Watch paper, we researched the impact of six different approaches to accountability of human rights violations in post-conflict countries. This project weighed heavily on research and was made more interesting with first-hand interviews. We researched the conflict applicable to each of our countries, which is the primary focus of the first section of our respective works. In our second sections we examined the human rights violations that occured and what, if any, measures have been taken, either in the direction of Impunity or Accountability. The final section of each case focuses on the analysis of applicable arguments to see if progress towards accountability has been achieved, and if not, what is necessary for future implementation.

The Conflict between Impunity and Accountability Fosters post-conflict reconstruction and reconciliation Promotes more rapid end to conflict Validates human rights violations as not punishable Accountability Fosters justice through legal recourse Encourages long term stability through affirmation of governing institutions Politically and legally complicated There is a major debate between impunity and accountability. Impunity is the intentional or de facto exemption from penalty and punishment. In some ways, impunity is considered an easier way out of conflict and civil unrest because it promotes a more rapid termination of hostilities, often through amnesties. The amnesties provide incentives for perpetrators to demobilize but is often pervieved as a validation of the committed human rights abuses as unpunishable. Accountability, on the other hand, is the effort to operationalize justice in post-conflict situations. Accountability encourages justice by setting a recourse in fair and legal frameworks to address past atrocities. This is the best route to long term stability because it gets to the root of the problem by trying those who committed crimes. It also legitimizes the governing institutions juridical supremacy through trials rather than permitting perpetrators to go unpunished.

Arguments Supporting Accountability Deterrence Retribution Marginalization Incapacitation Rule of Law Establishing Historical Record http://www.spectator.co.nz/ images/justice.gif

Conflict and Atrocities in Afghanistan 1978-2001 Indiscriminate bombing and targeting of civilians Summary Executions Ethnic Cleansings Destruction of Rural Economy Afghanistan was formed through the interaction of Empires over the centuries. Because of this the borders dilineating the country contain multiple ethnic groups and has never had strong central government. Communist victory in the 1970’s brought in involvement of Soviet Union. Soviet withdrawal led to power vacuum, which was manifested in factional infighting between many ethnic and religious militias and cause the death of thousands of civilians. Above-mentioned are the gross human rights violations that have ensued since the onset of the conflict. During the Soviet occupation, the Soviet troops were unable to distinguish those that were fighting their occupation and those that were not. They responded by bombing villages indiscriminantly. During the Civil War following their withdrawal, factions maintained power by bombing neighborhoods held by rival militias. Both the Soviets and the warlord factions proceeded to detain, torture and kill those they saw as their enemies - with the criteria being they lived in the wrong village or neighborhood. Ethnic cleansing was particularly bad during the civil war, as reprisal killings along ethnic lines were a standard method of terror and intimidation. The Shi’a Hazaras were particularly targeted, but not exclusively. A result of the bombings was the disruption of the rural economy. Irrigational infrastructure was destroyed limiting the amount of arable land. Along with this, the terror that encompassed the conflict disrupted the daily life, destroying the economic base of the country, http://www.keweenawnow.com/views/martin_afghanistan_01_11/images/tank_table_rm.jpg

Bonn Agreement and Consequences Legitimized factional power structures Established System of Impunity and contradiction Tony Karon

Afghanistan: Is Accountability Possible? Harnessing accountability: Historical Record Rule of Law Cultural Currency, i.e. Pashtunwali The UN sponsored Bonn Agreement in 2001 legitimized the factional power distribution by allowing warlords to participate in the political system’s development. International attention has focused on policing and security with limited funds going to developing a strategy for establishing rule of law. This lack of strategy has led to contradictions in transitional justice such as both an Action Plan to address the past’s atrocities and amnesties. Due to the fact that Afghanistan’s legal infrastructure has been decimated by the years of conflict, it currently lacks the capacity necessary in trying the many alleged war criminals present in the country. Due to this, an official recognition of the past atrocities is fundamental so as to create a national history that acknowleges the suffering and puts it “on record” for future prosecution. In the interim, rule of law needs to be established through building the needed legal and democratic institutions so that there can be a framework in which to try the alleged violators. Due to Afghanistan’s limited experience with Western-style jurisprudence, there has to be cultural currency so as to jump-start the process of developing a legal culture that corresponds with social norms. Sharia Law is the most fundamental in bringing the Islamic nation together. However, the current Taliban led insurgency is Pashtun dominated, and must therefore correspond with their tribal code of pashtunwali. Many elements of rule of law, retribution and marginalization can be found within the culture system. http://afghanistanica.com

Atrocities and Violations in Kosovo 1997-1999 Ethnic Cleansing Gender-Based Violence Destruction of Civilian Property Legacy of Impunity Dustin Friedman

The Human Toll 860,000+ Kosovo expelled or fled 245,300 Kosovo Serbs and Roma fled in fear of or response to reprisals 10,000 Kosovo Albanians killed in massacres and executions 1,500 Kosovo Serbs and Roma killed by NATO bombardment 3,500+ disappeared, 1,613 still missing Dustin Friedman

Kosovo: Accountability towards Justice Links in the Accountability Chain: Marginalization Incapacitation Historical Record Deterrence Retribution Rule of Law Marginalization and Incapacitation By the time Milosevic was transferred to the ICTY, he had been in hiding and had lost his former power and influence in the region. ICTY indictments against Milosevic and other high-level Serb government officials were the final necessary step after the regime had become extremely unpopular due to the conflict and poor socioeconomic conditions. This ties into the historical record. Establishing Historical Record This was the first time a former head of state had been indicted and placed on trial, upon surrender of the government of the country which he used to lead, and shows that heads and members of such regimes will ultimately be marginalized and incapacitated. This speaks towards deterrence and retribution. Deterrence The resulting post-conflict unpopularity of Milosevic, indictment against him and others in his regime, trials, and convictions of other Serbian officials sends a message to other leaders and high-level government officials that the atrocities for which they were responsible in Kosovo cannot be committed with impunity. The legal actions of the ICTY and domestic courts in Serbia and Kosovo deterred reprisals against Kosovo Serb and Roma from worsening to complete ethnic cleansing. It is possible that with the legal precedent of the ICTY indictments, Macedonian officials did not employ more violent means to quell the 2001 Albanian separatist movement there and allow special rights for the Albanian minority.This fosters the development of rule of law. Retribution While domestic courts in Kosovo and Serbia have a lot of work to do to bring the many lesser known people who committed atrocities to justice, the trials conducted in the UN ICTY and in courts in Kosovo and the Belgrade War Crimes Chamber and elsewhere in Serbia do give surviving victims of the Kosovo atrocities some sense that those responsible for their suffering are not getting away with it. This also aids the development of rule of law. Rule of Law The Ohrid Framework allows for minority rights of ethnic Albanians in Macedonia, similar to those allotted for Serbs and Roma in the Ahtisaari Plan for Kosovo. The newly formed Kosovo government, with legal institutions in transition from UN to EU technical and financial assistance, must use such examples to ensure the rights of all ethnic groups in Kosovo, and allow for scrutiny and transparency. With time and a commitment of all groups to not commit acts of violence, this will build the level of popular trust in Kosovo's legal institutions necessary for rule of law. Dustin Friedman

Argentina’s Dirty War 1976-1983 Human Rights Violations: Desaparecidos Arbitrary Detention Torture Extrajudicial Executions 9,000-30,000 Victims In retaliation to the so-called subversive of leftist guerilla groups the Montoneros and ERP, a military junta overtook the Argentine government in 1976 and remained in power until 1983. During the 7 year dictatorship, countless human rights atrocities ensued, the most infamous refered to as the Desaparecidos, or the dissapeared. Estimates of dissapeared vary widely between 9,000 and 30,000. Those subjected to the junta’s National Reorganization Process were often kidnapped, taken to clandestine detention centers, often military and police bases, detained, systematically tortured, and often executed, the most famous method being the death flights were victims, alive but often unconscious, were thrown from planes into the Atlantic Ocean or Rio de la Plata. The junta imposed a blanket amnesty at its dismemberment in 1983, which was subsequently contested in the democratic elections of that year. In attempts to hold the perpetrators accountable, the CONADEP report on the dissapeared persons was released in 1984 with evidence for 8.960 victims. Despite the evidence and initial trials or high ranking officers, strong military pressure brought about two partial amnesties in 1986 and 1987 and subsequent pardons in the early 90’s. http://www.sfgate.com/blogs/images/sfgate/foreigndesk/2006/12/15/dirtywar.jpg

Cycles of Amnesty and Accountability http://todolosolido.com.ar/weblog/wp-content/desaparecidos.jpg 1984: CONADEP Comisión Nacional sobre la Desaparición de Personas report Nunca Más Trials of high-raking officers 1986 : Ley 23.492 de Punto Final 1987: Ley 23.521 de Obediencia Debida 1990: Menem’s Pardons

Final Accountability in Argentina 2005 Positive Outcomes of Accountability: Rule of Law and Establishing a Historical Record Works in Progress: Deterrence and Retribution In 2001 a court case regarding the dissapearance of a Chilean-Argentine couple and their child led to the 2005 Supreme Court nullification of the amnesty laws. Though certain groups, such as the Abuelas de Plaza de Mayo, have been fighting for trials since the onset of the dissaparances, real progress in prosecution has been visible since 2005. Though Argentina had rule of law prior to the junta, the re-establishment of a just governing system, especially under both Kirchner administrations, has been demonstrated. Historical records have been established through archives, monuments, commemorative ceremonies, the granting of post- mortem diplomas and the transformation of the most notorious secret detention center into a human rights museum. Though evidence of the effectiveness in implementation of deterrence and retribution are more questionable, there is something to be said for the progress towards each. Though torture is still prevalent in prisons and kidnappings, particularly of key witnesses in Dirty War trials, still occur, international pressure and domestic motivation are likely deterring factors in keeping Argentina from another military coup. Though victim’s reparations are not possible, proactive undertaking of trials have supported victim’s sentiments with regards to doing the best possible to amend the crimes committed, which is more than can be said to have been done prior. http://cache.daylife.com/imageserve/0fRy1BP8KMa6z/610x.jpg

Conclusion Time Domestic Support International Pressure Institutions Advocating Rule of Law Political Will From the research and the interviews, we have concluded that these three cases, though widely variant with regards to reasons for conflict, can be represented in a gradation of effective implementation of accountability, with Argentina most exemplary of relative success. There are several key components that are necessary in this transition process. Time is needed to re-establish a just legal system and re-build faith in the governing structure. As central authority is legitimized, the alleged perpetrators still holding sway begin to lose power allowing institutions to subsume just authority. Though too much time passed in Argentina, it is evident that the conflict is too close to Afghanistan presently to make real progress towards accountability. Domestic support also plays a major role in the sustainability of post-conflict reconstruction because it is fundamental to spurring political will in the country in question. International Pressure is key in the interim and acts as a standard towards which the Domestic government must comply. Moreover, international legal and financial aid is fundamental to funding post-conflict reconstruction, particularly in war-torn situations. Institutions advocating rule of law should take precedence in transitional justice because fundamentally without rule of law there is no framework from which any of the arguments for accountabilty can manifest themselves. Finally, once the capacities are developed, the key to sustainability is Political will, particularly but not only domestic. Though every country in transition from conflict to peace follows its own path, applying the above-mentioned steps to the process provides a more promising blue print in the possibility of justice. www.un.org

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