Open letter: For a renewed strategic support to human rights in Afghanistan

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Last Update 3 December 2013

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FIDH-Armanshahr/OPEN ASIA briefer on Afghanistan available .

Paris, Kabul 03 December 2013



Dear Ms. Ashton,
Dear Mr. Mellbin,
Dear Ambassadors,



2014 will be a crucial year for Afghanistan, marked by the beginning of a decisive electoral cycle [1] and the withdrawal of the International Security Assistance Force (ISAF). FIDH and Armanshahr/OPEN ASIA welcome the EU’s current strategic reflection on Afghanistan [2] and its endeavour to provide long-term support to the country until at least 2020, as well as its intention to monitor the upcoming elections. Our organisations however wish to draw the EU’s attention to a number of challenges in its approach to the situation.



While the transitional justice momentum seems to have been lost in the country, the risk now exists to see a double marginalisation of justice and of the participation of the Afghan people – and in particular women – in the election and peace processes. The UE has a key role to play to support the fragile human rights processes and institutions in Afghanistan, making certain that key deliverables on justice are met and ensuring an adequate international monitoring of the human rights and women’s rights situation in the country. To do so, the Union should refine its policy concerning its support to justice and human rights by making efficient and coherent use of its political and cooperation instruments.



Support Human Rights institutions and processes

The elections and peace processes have brought to the forefront the traditional actors of violence and human rights violations in Afghanistan, at the expense of emerging but fragile actors within the Afghan society notably the youth and women.



Key institutions like the Afghanistan Independent Human Rights Commission (AIHRC) and the Ministry of Women’s Affairs see their independence and relative autonomy for action currently threatened. The Afghan Government has for example openly discouraged the IAHRC to undertake its work of investigation into past war crimes.



The quota of women for provincial elections has already been cut down from 25% to 20% and the current electoral law now proposes that women be banned from running in the district elections.



The law on the Elimination of Violence against Women, in force by presidential decree, was refused by the legislators. New provisions on “moral crimes” in the penal code to restore stoning as punishment for adultery are being drafted by the justice Ministry.



The Afghan Parliament removed the vetting mechanism barring candidates who command or are member of military organisations or armed groups to stand for elections.



These are major step-backs and a failure to meet the objectives and commitments carried by the National Action Plan for the Women of Afghanistan and the EU 2009 Action Plan on Afghanistan.



FIDH and Armanshar/OPEN ASIA therefore call on the EU to:


  • Reiterate publicly and firmly in its relations with Afghan authorities the need to ensure that vetting of political candidates associated with human rights violations is ensured all along the election cycles, firstly through the repeal the change made in 2013 to the Electoral law.
  • Integrate these concerns in its long term election cycle support and in the April 2014 Election Observation Mission and work with the Afghan authorities to reinforce the Electoral Complaints’ Commission, which should be able to take on complaints against candidates associated with human rights violations.
  • Condemn the increasing marginalisation of women in the political and peace processes, as well as in the private sphere; work with the relevant Afghan interlocutors to ensure full implementation of the Law on the Elimination of Violence against Women and address the problematic trend of the reduction of the quota of seats for women in the Parliament.
  • Bring visible and continuous support to the Afghan Independent Human Rights Commission and the Ministry of Women’s Affairs, inter alia by providing for the reinforcement of their capacities and obtaining from the Afghan authorities the guarantee of autonomy and action, like the publication of the AIHRC’s mapping report on past human rights violations.


Reiterate key deliverable demands on justice

The Government of Afghanistan has so far been unable to uphold its commitments under the Bonn Agreement to “uphold all of its international human rights obligations” and to effectively strengthen the justice system. The parallel customary/tribal justice is now presented as part of the solution, in spite of the risks it entails for universal human rights. Important provisions of the Constitution have not been adequately implemented, in particular mechanisms for checks and balances, judicial capacity to determine constitutionality, or the precedence of human rights over other norms. Impunity remains widespread, for past crimes as well as for current serious human rights violations [3].



Despite the attention given to these issues, the international community has failed to provide the decisive political push in favour of justice in Afghanistan. Support to the national justice sector would have been more efficient had it been reinforced by stronger demands on the intangibility of key concerns like vetting, accountability and the fight against impunity [4].



FIDH and Armanshahr/OPEN ASIA therefore call on the EU to:


  • Keep the reinforcement of justice on top of the agenda and demand results including by keeping support to justice as a priority of the Governance focal sector in the 2014-2020 programming cycle.
  • Integrate refined indicators within the 2014-2020 programming cycle, the Action Plan on Afghanistan to be reviewed in 2014, the future Cooperation Agreement on Partnership and Development (CADP), the modalities of aid delivery and diplomatic action (including the 2014 Review Ministerial Meeting to be co-chaired by the UK);
  • Devise incentivizing options to address the possibility of lack of progress in Afghanistan’s commitments.


Indicators concerning a well functioning justice system should integrate benchmarks concerning:



1- effective and independent investigation into human rights violations (in particular those perpetrated by the Afghan police and security forces ) and victims’ access justice and reparation for these violations, by clearly appointing national and international monitoring mechanisms.



2- the setting-up of transitional justice mechanisms, in collaboration with the Afghan Independent Human Rights Commission (AIHRC), Afghan civil society, human rights organisations and victims’ groups, in compliance with the 2005 Action Plan for Peace and Reconciliation.



3- the repeal, through the Parliament, of the Public Amnesty and National Stability Laws.



4- the setting-up of effective, transparent and efficient vetting procedures (for nominations ofthe Afghan Local Police, in public posts and for any elections). In this context, the vetting commissions should be independent, establish public criteria for vetting, provide vetted persons access to all information used for the vetting, and the practical means to challenge their vetting before an independent court.



Avoid a human rights monitoring gap



While the international community focused on international conferences in Bonn, Istanbul and Tokyo, the level of attention the UN Human Rights Council (HRC) has given to Afghanistan in recent years has been insufficient considering the graveness of the human rights situation in the country. The work undertaken by the UNAMA human rights section and the Office of the High Commissioner for Human Rights (OHCHR) in terms of monitoring the situation, reporting and technical assistance lack visibility in the international fora. In particular, the HRC does not discuss the reports and recommendations nor act upon them.



In addition, the mandate of the last Independent Expert on human rights in Afghanistan expired in 2005, the last report on Afghanistan by a Special Rapporteur (on summary executions) was in 2008, and the last Working Group report (on the use of mercenaries) was presented in 2009. Each mandate issued thorough recommendations that remain far from being implemented. Since 2009, no Special Procedure have been able to visit the country, in spite of repeated requests emanating inter alia from the Special Rapporteur on Torture and from the Working Group on Arbitrary Detentions. The engagement of Special Procedures in Afghanistan has in consequence been nonexistent for years.



With the Afghan forces soon to be entrusted total control over the security situation in the country, there is an additional need to reinforce the monitoring and accountability mechanisms of Afghan forces.



FIDH and Armanshahr/OPEN ASIA therefore call on the EU to:


  • Lead in 2014 for the adoption of a Human Rights Council Resolution to establish an independent mechanism monitoring the evolution of the human rights situation and provide technical assistance to the Afghan government to strengthen the rule of law in the country. Such mechanism should be given a mandate to examine, monitor, advise and publicly report on the human rights situation in the country, to respond to complaints of individual victims, and to streamline, in cooperation with the Afghan authorities, a roadmap for the implementation of the UN human rights recommendations.
  • Extend the mandate of the EUPOL mission beyond 2014 and consolidate its monitoring and training focus beyond police to integrate the whole judicial system.
  • Work for the reinforcement of the UNAMA mandate and means of action concerning the monitoring and protection of civilians, including women’s rights, the promotion of accountability and the implementation of Afghanistan’s human rights commitments.
  • Discuss with Afghanistan and international partners the setting-up of a a monitoring and reporting mechanism of the Afghan forces which should be directly connected with judicial accountability mechanisms.

Footnotes

[1April presidential and provincial elections, prior to the 2015 parliamentary elections.

[2In the face of these challenges on the ground, the European Union has started a reflection on defining its post 2014 strategic engagement with Afghanistan. This encompasses the upcoming revision of the 2009 EU Action Plan on Afghanistan and Pakistan, the conclusion of negotiations on a Cooperation Agreement on Partnership and Development (CAPD) with Afghanistan, and the refining of the 2014-2020 programming. In September 2013, the EU appointed a Special Representative for Afghanistan to contribute to this strategic engagement and act as a privileged contact with the Afghan and international actors.

[3The government of Afghanistan has notably failed to prosecute or disqualify those responsible for grave crimes throughout the civil war and has progressively marginialised transitional justice processes. No procedure for investigation has been set up to allow human rights violations’ victims to bring cases to the justice, allowing the 2007 Amnesty law to apply de facto to all violations’ perpetrators. FIDH and Armanshahr/OPEN ASIA Report, Human rights at a crossroads - The need for a rights-centred approach to peace and reconciliation in Afghanistan, May 2012, http://www.fidh.org/IMG/pdf/af0512589a.pdf

[4An occasion was for example missed through the absence of concrete indicators concerning these issues in the Tokyo Mutual Accountability Framework (TMAF).

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