Taliban commander in Bergdahl swap should be prosecuted for war crimes

BRUSSELS — The former Taliban commander Mullah Fazil has arrived in Qatar, after his release from the Guantanamo Bay detention center, along with four other Afghans, in exchange for US Sgt. Bowe Bergdahl, who had been held by the Taliban since 2009. Under terms of the exchange, Fazil will remain in Qatar for one year and then will be allowed to return to Afghanistan.

This doesn’t mean he should escape justice.

The critical commentary in the United States set off by the prisoner exchange misses a key point: Fazil should have and still can be prosecuted for his role in a massacre of over 170 civilians in Afghanistan in January 2001, as well as other serious crimes.

Human Rights Watch and others have long argued that Guantanamo has been used to illegally hold detainees and should be closed; there shouldn’t have been any Afghans there to swap for the American soldier.

When Fazil surrendered to the anti-Taliban Northern Alliance forces in late 2001, he could have been held as a prisoner of war (POW) under the Geneva Conventions until the end of the inter-state armed conflict between the US and Afghanistan in 2002 or tried for war crimes by the US or a third party such as the new Afghan government. Instead, he was sent to Guantanamo without POW status, where he was held illegally without charge for over 12 years.

The transfer of the five Afghans leaves 149 prisoners at Guantanamo, only 10 of whom face charges or have been prosecuted in the fundamentally flawed military commission system. And the trials of even those detainees have been plagued by procedural irregularities and fail to meet fundamental due process standards.

The evidence of Fazil’s crimes is strong. He had overall operational command and specific responsibilities during a Taliban offensive to recapture the town of Khwagaghar in Afghanistan’s northeastern Takhar province in January 2001. More than 30 civilians were detained and summarily executed during this operation.

Numerous witnesses have testified that Fazil visited the area as the force’s commander during a January 2001 massacre of more than 170 ethnic Hazara civilians. They were detained by Taliban forces and then executed by firing squad in public view.

Afghans who fled the Shomali valley north of Kabul also have reason to remember Fazil; his troops torched their villages and vineyards in 1999 as part of a Taliban scorched-earth campaign to bring the area under their control, summarily executing civilians in their path.

Such offenses are war crimes. These are crimes of universal jurisdiction, meaning every country is empowered to prosecute them. Under the laws of war, countries are obligated to investigate and appropriately prosecute alleged war criminals in their custody or transfer them to a country willing to fairly try them. Although the US failed to prosecute Fazil, Qatar, or any other state that has jurisdiction over him, can still do so.

Instead of calling for Fazil to be charged – or initiating its own investigation – the Afghan government has called for the former detainees, including Fazil, to have “complete freedom” immediately.

The government’s response is sadly unsurprising. Many Afghan leaders have a long history of human rights abuses. The presidential and vice-presidential candidates in this year’s election include those responsible for overseeing massacres, rape, torture and other serious crimes.

Early calls by Afghans in support of transitional justice — mechanisms that could hold such men to account and provide their victims with the truth about the many enforced disappearances and killings that have scarred Afghanistan since war began in 1978 — were stifled by successive governments of warlords whose own hands were bloodied by such crimes.

The US offered no support for these initiatives, fearing that genuine justice would bring down the fragile stability achieved by 2002. In 2007, the Afghan parliament passed an amnesty law, exonerating every fighter for any action committed during previous fighting. This amnesty, in violation of international law, extended to war crimes and crimes against humanity.

But other Afghans have not given up. The Afghan Independent Human Rights Commission has completed its own detailed report of atrocities from the earliest years of armed conflict through 2001, a 900-page account told in the voices of the survivors seeking justice.

President Hamid Karzai’s government has suppressed the report, but when his successor comes to power this summer he will have an opportunity to do better.

The new president, to be chosen in a run-off election, can start by releasing the report and calling for repeal of the amnesty law. Most important, he should make human rights a priority for his administration, including by ensuring that charges are filed against Fazil so that he is subject to arrest if he returns to Afghanistan.

If Afghanistan’s next president takes a stand against impunity, maybe Fazil’s victims need not always live in fear.

He will need the full support of the United States and other international supporters to succeed, something that has been lacking for far too long.

Patricia Gossman is Afghanistan researcher at Human Rights Watch.