A Call to Justice

During almost three decades of war, Afghanistan has seen more than its share of human-rights abuses. Mass graves have been found in northern, eastern, and central parts of the country, and horrific tales abound of massacres and widespread rape, robbery, and torture.



So it comes as no surprise that there are frequent calls to bring the perpetrators to justice. But so far, only one senior official has been convicted of crimes against humanity. And the crimes of which he is accused occurred before the country descended into years of civil war.



Assadullah Sarwari, 65, who headed Afghanistan’s intelligence department from 1978 to 1979 under the communist regime, was found guilty of executing a large number of Afghans without proper trial.



He was sentenced to death by a lower court on February 23. His case is now pending appeal.



Sarwari was a prominent figure in the communist-backed regime set up after the Soviet invasion in December, 1979. He went on to become, in turn vice president, deputy prime minister and minister of transport in the administration of Babrak Karmal.



Sarwari was arrested in 1992 when mujahedin factions overthrew the Soviet-backed Najibullah regime. Jailed on charges of conspiring against the mujahedin government, he was taken to the Panjshir Valley by the forces of the late Ahmad Shah Massoud. He spent almost a decade there, without trial, and was brought to Kabul only after the fall of the Taleban regime in 2001.



Late last year, the government of President Hamed Karzai approved a plan to investigate allegations of human rights abuses committed during Afghanistan’s decades of war.



Sarwari's case was the first in what many hope is a long line of prosecutions.



No one disputes that the communist regime was guilty of its more than its share of brutality. But numerous other figures, including former warlords who played leading roles in the vicious internal battles of the Nineties, have also been widely accused to human-rights abuses.



Some of these figures occupy important posts in the current government.



So many are asking why Sarwari has been singled out.



“The [other] accused war criminals hold posts in the government,” said Abdul Basit Bakhtiari, the judge in the case. “That prevents them being brought to trial. There are other people as well who, if we were to take action against them, would be able to destabilise the country’s security.”



Bakhtiari told IWPR that Sarwari had been tried for mass murder. The accused had no lawyer, so was forced to defend himself. The trial had previously been twice postponed because of lack of legal representation and it was unclear why the defendant did not have counsel in the final proceedings



After almost 14 years of waiting, the one-day trial was something of an anti-climax. According to media reports, witnesses were allowed to present hearsay evidence and Sarwari was given no opportunity to confront his accusers.



People whose family members had been killed or disappeared under the communist regime were allowed inside the courtroom, and emotional outbursts were frequent.



Sarwari’s defence was simple - he was just doing his job.



“I and the intelligence organisation were very active in providing security for our citizens,” he told the court. “We discovered more than 300 plots, as a result of which the lives of thousands of citizens were saved. I believe that in the past I worked for the benefit of my country and my people.



“The government at that time was like a machine, and I was a part of that machine. I was just performing my duties,” he added.



But that argument did not sway the judges.



“After several hours of testimony from witnesses who had been tortured by Sarwari or whose family members were killed by him, we handed down a guilty verdict and sentenced him to death,” said judge Bakhtiari.



IWPR was not allowed access to Sarwari.



International human rights groups such as Amnesty International and Human Rights Watch have pointed to irregularities in the trial, terming the process “flawed” and calling for the verdict to be set aside.



Sarwari’s major crime, say some analysts, is that he is not backed by any powerful faction. That allowed his opponents free rein to attack him.



“There are many criminals in the cabinet and in the parliament who have power over people’s lives,” said political analyst Mohammad Qasim Akhgar. “The government’s attitude towards criminals is as inconsistent as its other policies. Since Sarwari is not supported by any powerful groups within the country, or by any foreign nation, his political opponents can put him on trial.”



Sarwari has many enemies among those who now hold power in Afghanistan. He is a former communist and a Pashtun, both factors that put him in opposition to the powerful group that surrounded the late Ahmad Shah Massoud, the commander whose power base lay in the ethnic Tajik Panjshir Valley.



Massoud, who was assassinated just two days before the September 11, 2001 attacks on the United States, has become something of a cult figure in Afghanistan. His trusted deputy, Younus Qanuni, is now speaker of parliament.



Gul Rahman, president of the Afghanistan lawyers’ union, concedes that there were other factors at play in the Sarwari trial.



“There is no doubt that personal, political, linguistic and tribal rivalries exist in our country and have had an influence on Sarwari’s trial,” he said.



Political analyst Zahoor Afghan asserted that Sarwari was unable to have a fair trial because of problems within the legal system.



“Afghanistan’s judiciary has not been able to maintain its neutrality,” he said. “The system is still political, and all the judges are under the control of political parties and groups. And those in charge of the judiciary have no education in law.”



Owing to Afghanistan’s status as an Islamic republic, it is quite common for judges to have only attended a madrassa or religious school, or at best, to have received some higher-level training in Sharia law. Few have a formal legal education.



Lal Gul, head of the Afghan Commission for Human Rights, expressed doubts about the independence of the judiciary.



“Judges are under pressure,” he said. “When we send a case to court, judges refuse to accept it, saying, ‘the accused is a powerful figure and I cannot call him in’.”



But the deputy chief justice in the Supreme Court, Abdul Malik Kamawi, rejected allegations of political pressure.



“Afghanistan’s judiciary has tried many criminals against whom it received complaints. Sarwari is not the first. And there has been no pressure from anyone,” he said.



Sarwari’s lone status as a convicted human rights violator is not due to any outside influences, he added.



“We have not received any official complaints against anyone else,” said Kamawi. “If we do receive complaints, they will be tried.”



People on the street expressed general cynicism over the Sarwari trial.



“Sarwari has no power, no money, and no guns, so it's easy to bring him to trial,” said Samiullah, 31, who lives in Kabul’s Taimani district.



“It would take real heroism to bring someone to justice who is in the cabinet or the parliament.”



Shahwali, 51, agreed, “If Sarwari had men and arms like other criminals, not only would he not have been tried, but [President Hamed] Karzai would have named a street after him.”



Mohammad Jawad Sharifzada and Salima Ghafari are IWPR staff reporters in Kabul.