Punishment by national/ international courts - transitional justice. Afghanistan - Essay Example

? Punishment by national/ international courts- transitional justice Dissertation proposal Research Punishment by national/ international courts- transitional justice- how governments deal with the wrongdoing of past regimes in Afghanistan Research hypothesis: How effective is transitional justice in Afghanistan? Taking into consideration the political system in Afghanistan, the lack of political will to pursue justice and the weak cum malfunctioning judicial system as well as the Bonn Agreement.1 Reason for choosing the topic: the choice of the effectiveness of transitional justice and punishment by both national and international courts in Afghanistan stems from the magnitude of wrongdoings in the past and the desire of the victims to get justice for these wrongdoings. Similarly, the concept of justice in Afghanistan has proven a discordant issue in international law with scholarly discourse on the issue advocating for effective measures in the attainment of transitional justice and punishment of wrongdoers from the past regimes. The above position results from the reluctance of the international community in pursuing and ensuring that the victims of the atrocities of the past regimes get justice. The ongoing war against both the Al-Qaeda and the Taliban results in destabilization, which hinders the attainment of transitional justice in the country. The present situation in the Afghanistan is a fragile one and therefore, imposes difficulties in the attainment of justice or punishment by national and international courts. Purpose and goal: In light of the foregoing issues, the aim of this research is to present an analysis on the effectiveness of approaches to transitional justice in Afghanistan as well as the effectiveness of punishment by both international as well as national courts. The intended goal in this case is to ascertain whether the approaches adopted for the attainment of transitional justice are effective. Ascertaining the capability of ensuring that the wrongs committed during the previous regimes are addressed effectively also informs this goal. In the circumstance that the approach adopted in the pursuit of transitional justice and punishment by national and international courts are not effective, the study looks into the obstacles faced in this endeavor as well as the shortcomings of the process. The primary goal here is to identify the challenges faced thereof and provide a discussion on these challenges. Ultimately, the study will provide recommendations aimed at attaining effective transitional justice as well as approaches aimed at providing effective punishment by international and national courts on the wrongs committed in the previous regimes. Literature and resources In respect to the vast number of resources relevant to the issue and the word limit of the proposal it is impracticable to provide an exhaustive review of literature, however, other resources employed in the study are contained in the bibliography section. David Wisner Is Time Ripe for Transitional Justice in Afghanistan.2 Provides that transitional justice in Afghanistan has endured an uncertain progress and the advocates of transitional justice forced to fight for transitional justice it. Despite the acknowledgement of the achievements of the Afghan Independent Human Rights Commission (AIHRC), serious obstacles culminate from the political field. The article provides for the Bonn Agreement and goes ahead to give its shortcomings and the success of this agreement. It is noteworthy that the Bonn agreement is instrumental in the discussion of transitional justice, in Afghanistan. This agreement marks the beginning of the desire to attain justice and marks the onset of the concept of transitional justice in the country. The article also indicates the desire of the victims of these wrongs to get justice. The article also provides that the AIHRC plays a central role in the pursuit of transitional justice. This is exemplified by the Creation of A Call For Justice and the Action Plan and the programmed aimed primarily at promoting transitional justice. The article further goes ahead to highlight the challenges faced in the pursuit of transitional justice in Afghanistan. These obstacles are; weak and failed judicial system, lack of both domestic and international will to attain justice, the political climate in the country as well as the controversy associated with amnesty. The article also brings into focus the ongoing war against the Al-Qaeda and the Taliban as another factor to put into consideration in focus for an effective transitional justice system. The article concludes by providing recommendations on a comprehensive strategy aimed at a viable transitional justice. This article is indispensable in the context of the dissertation as it provides relevant literature in light of the research hypothesis. Husain Moen & Ahmad Zia Mohammadi International Criminal Court (ICC) in Afghanistan A Report of the Consultative Meeting on Obligations of Afghanistan under ICC.3 This report puts into context the case of Afghanistan in the international community more so the international criminal court (ICC). The report stipulates the obligations of Afghanistan under the ICC and provides the country’s adjustment of the national laws in accordance to the Rome statute, which forms the ICC. Alignment of the inconsistencies in national laws, in respect to the Rome statute, becomes necessary in meeting the obligations of the international Criminal Court. The report also provides for the implementation of the Rome statute in the country as a sign of the desire for transitional justice and punishment of wrongdoers by international courts. The report further goes ahead to provide for the crimes, which fall into the jurisdiction of the ICC. It also points out that only crimes committed after the ratification4 of the Rome statute by the country fall within the realm of the ICC. The report also points out that the civil society plays a role in promoting the ICC process and supports’ this assertion with the case of Omar Albashir.5 Civil societies also provide awareness to the public on these issues. Similarly, the international community has a function in the implementation of the ICC process especially the UN. However, the report indicates that the UN has played a passive role in the case of Afghanistan and justice non-inclusive in the agenda, in respect to Afghanistan. The report then goes ahead to point at the challenges faced by the ICC, which include the unavailability of political will, lack of public awareness, the culture of impunity, lack of a strong judicial system and others. The recommendations of the report go a long way in the development of chapter five of the dissertation. It is imperative to note that the report touches on the punishment of wrongs by the international court and as such provides support for the research hypothesis and, therefore, an instrumental contribution in the development of this dissertation. Emily, Winterbotham. The State of Transitional Justice in Afghanistan Actors, Approaches, and Challenges6 The paper puts into context the case of transitional justice in Afghanistan by looking into the policy-making environment. The entrenchment of impunity originating from the time of creation of the Bonn agreement provides a strong case for impunity.7 The lack of full implementation and the reluctance for implementing the action plan, on the other hand, restricts the attainment of transitional justice in the country. The paper notes that national integration poses controversy, as it tends to ignore the needs of the victims for the sake of getting peace quickly. The argument is that although reconciliation is a decisive factor this should not be attained at the detriment of the victims. The paper then provides for the actors in the process of transitional justice as the government, the international community and the civil society.8 Accordingly, the paper highlights the processes that inform transitional justice. These processes include judicial accountability, which in respect of transitional justice plays a vital role. The judicial sector in the country faces corruption and receives limited public confidence, as a result. The lack of proper training of lawyers and judges in the Afghan Islamic and secular law also possesses a challenge in the judicial process. Significantly, the paper looks into the crimes committed in the past and denotes repairing the past in order to achieve transitional justice in Afghanistan. This paper informs the dissertation hypothesis by putting into context the situation of transitional justice as well as provides an overview of the past crimes. Nikola Schmidt. The Flaws of Transitional Justice in Afghanistan.9 The author discuses the Bonn agreement, which is a fundamental agreement in transitional justice in the country as indicated earlier. The author indicates that the Bonn agreement failed in its expectation of transitional justice. The argument is that it alternatively focused on the interim administration and the process of transition into a democratic state and highlights the provision of amnesty on the contract. The emphasis on the flaws of the Bonn agreement by the author shows the ineffectiveness of the agreement in regard to the intended aims of the agreement. The author also highlights the lack of transitional justice and justice in the country. However, the presence of the Afghan Independent Human Rights Commission (AIHRC) signifies attempts for justice and transitional justice, but the lack of implementations of the recommendations by this bodies due to lack of interest within the local population pose a hurdle. The author provides a sound conclusion to the discussion on transitional justice in Afghanistan by providing arguments that are realistic and attainable in light of the Afghanistan situation. Patricia Gossman. Transitional Justice and DDR: The Case of Afghanistan10 The research looks into the connection between transitional justice demobilization, disarmament and reintegration programs, and the concept of transitional justice. The research explores the contribution DDR programs to transitional justice, and how these programs hinder the achievement of transitional justice in Afghanistan. Accordingly, the report looks initially at disarmament at the Bonn negotiations and reforms in the ministry of defense in the country. Another obstacle in the disarmament program as stipulated in the report includes compliance by commanders and delayed disarmament in other areas due to mistrust between militias. The report also provides for progress in transitional justice in the country and the challenges faced in the process. Putting into consideration the position of the country prior to the Bonn agreement, it is clear that transitional justice could not be attained immediately and required progressive realization. However, the report notes significant steps towards transitional justice despite these assumptions. Subsequently the report looks into the relationship between transitional justice and DDR and notes that the relationship between transitional justice and DDR programs was unlinked from the onset. This situation results due to the concern that attempts to seek accountability would hinder the entire peace process as the key players would abandon the negotiations aimed at peace and more so the Bonn negotiations. The report provides that it is noteworthy that the concept of transitional justice was a real distant objective of the Bonn agreement and that the international community acknowledged the same. Also, important from the report is the fact that institutional reforms especially reforms in the judiciary have lacked behind despite the weight placed on the institution in the post Bonn process. The police institution also needs reforms to ensure transitional justice. Ultimately, the report provides for the setback of transitional justice and efforts to end impunity on the passing of the amnesty law, which makes provisions to grant immunity for players who were in conflict before the establishment of the interim process. This report is critical in developing the dissertation as it centers mainly on the Bonn agreement, which plays a critical part in the structuring of the concept of transitional justice in Afghanistan. Methodology: In undertaking this study, the main source of research material shall be secondary sources. The consideration of employing secondary research materials founded on limitation of time and further augmented by the availability of information relating to this concept in secondary sources. In light of this, the materials will include library searches, Books, Review of case law, statutes and any such relevant International treaties. The study will analyze the concept of transitional justice, including the challenges and recommendations, in the Afghan set up. These relevant sources will be employed to assess the concept of transitional justice and the punishment by the courts, as well as its effectiveness. A further analysis on the various judicial decisions and the interpretation thereof of the concept of transitional justice in Afghanistan will be undertaken with an aim of supporting the research hypothesis. The method of undertaking the research follows an analysis approach in order to satisfy the research hypothesis. Outline chapter heading; Chapter 1: Introduction and methodology 1.1 Introduction 1.2 Aim 1.3 Method and outline 1.4 Limitation 1.5 Literature review Chapter 2: transitional justice in Afghanistan 2.1 History of transitional justice 2.2 Bonn agreement 2.3 Current position of transitional justice in Afghanistan Chapter 3: Challenges to transitional justice in Afghanistan 3.1 Political environment 3.2 Lack of international and domestic political will for justice 3.3 Weak and malfunctioning judiciary Chapter 4: Interventions aimed at effective transitional justice 4.1 Truth and reconciliation commissions 4.2 Amnesty 4.3 Legal reforms 4.4 Lustration Chapter 5: Recommendations for effective transitional justice Chapter 6: Conclusion Bibliography Books Barnett R. Rubin. (2003). Transitional Justice in Afghanistan. University of London. Barnett R. Rubin. (2013). Afghanistan in the Post-Cold War Era. Oxford University press. David Wisner. (2008). Is Time Ripe for Transitional Justice in Afghanistan? Fletcher School of Law and Diplomacy Emily, W. (2010). The State of Transitional Justice in Afghanistan: Actors, Approaches and Challenges. Afghanistan Research and Evaluation Unit. International Crisis Group. (2003). Afghanistan: Judicial Reform and Transitional Justice. International Crisis Group. Linn Stokken Nielsen. (2011). Transitional Justice in Afghanistan - A Task for the International Community, Or a National Matter? Juridisk Institut, Aarhus Universitet. Michael Semple. (2009). Reconciliation in Afghanistan. US Institute of Peace Press. Michael Vinay Bhatia and Mark Sedra. (2008). Afghanistan, Arms and Conflict: Armed Groups, Disarmament and Security in a Post-War Society. Routledge. Ahmad, N. (2007).Peace or Justice? Transitional Justice in Afghanistan. The International Journal of transitional justice. 1 (1),pp, 173-179. Alexander, C. ( 2004). The Dilemma of Humanitarianism in the post-Taliban Transition. Bloomfield, CT : Kumarian Press. Husain Moen and  Ahmad Zia Mohammadi. (2009). International Criminal Court (ICC) in Afghanistan A Report of the Consultative Meeting on Obligations of Afghanistan under the ICC. Afghan watch. International Center for Transitional Justice. Laura D. (2002). Transitional Justice in Afghanistan: The Promise of Mixed Tribunals. Denver Journal of International Law and Policy, Vol. 31, No. 23, 2002. Matteo Tondini. (2007). Rebuilding the System of Justice in Afghanistan: A Preliminary Assessment. Journal of Intervention and Statebuilding, v1 n3 (November 2007): 333-354 Patricia Grossman. (2009). Transitional Justice and DDR: The Case of Afghanistan. Sari Kuovo. (2009) Transitional Justice in the Context of Ongoing Conflict: the Case of Afghanistan. International Center for Transitional Justice. Sari, K. and Dallas M. (2011). Reconciliation, Justice and Mobilization of War Victims in Afghanistan. The International Journal of transitional justice. 5 (3), pp, 492-503. Schmeidl, S. (2011). The quest for transitional justice in Afghanistan: Exploring the untapped potential of customary justice. Journal fur Entwicklungspolitik, v27 n3 (2011 11 16), pp, 43-63 Web Lucas Manley. (2011). Afghan Panel on Human Rights and Transitional Justice. [Online]. (Url http://physiciansforhumanrights.org/blog/guftegu-afghan-panel-on-human-rights-and-transitional-justice.html). (Accessed 25 February 2013). Nikola SchmidtBottom of Form.(2013). The Flaws of Transitional Justice in Afghanistan. [ Online]. (Url http://www.globalpolitics.cz/clanky/the-flaws-of-transitional-justice-in-afghanistan?en=1) (Accessed 25 February 2013). Sima, Samar. (2013). Transitional Justice and the Role of Forensic Science. [Online]. (Url http://afghanproject.phrblog.org/). (Accessed 25 February 2013). Read More