




































American International Journal of Social Science Research 

Vol. 10, No. 1; 2021 

ISSN 2576-103X   E-ISSN 2576-1048 

Published by CRIBFB, USA 

 

41 

THE FAILURE OF TRANSITIONAL JUSTICE IN AFGHANISTAN: 

THE POLITICAL DIMENSION 
 

 

Bilal Badloon 

Assistant Professor 

Department of International Relations 

Law and Political Science Faculty 

Nangarhar University, Afghanistan 

E-mail: b.badloon@gmail.com 

  https://orcid.org/0000-0002-8894-8634 

 

 
Received: August 30, 2021           Accepted: October 30, 2021         Online Published: December 31, 2021  

 

DOI: 10.46281/aijssr.v10i1.1530                URL: https://doi.org/10.46281/aijssr.v10i1.1530 

 

ABSTRACT 

In every phase of the conflict in Afghanistan, serious War Crimes and crimes against humanity 

were committed, resulting in mass killings and forced displacement of millions of Afghan 

civilians and political opponents. Based on relevant literature, this article investigates the 

political factors responsible for the failure of transitional justice in Afghanistan, particularly 

internal and external factors. The article also brings to the fore the impact of the dual process of 

state-building and peace-building on the implementation of transitional justice. In addition, the 

paper investigates why the 'Peace first and justice later' strategy proved to be unsuccessful in 

Afghanistan as the Taliban continued their atrocities, fighting Afghan forces and killing innocent 

people in suicide attacks. The paper finds that the failure of transitional justice in Afghanistan is 

due to both internal and external factors. Further, the paper finds that Afghanistan has never 

been a post-conflict state, unlike other countries that have experienced transitional justice 

processes. Therefore transitional justice measures were never implemented. 

 

Keywords: Afghanistan, Transitional Justice, Peace, Conflict. 

 

JEL Classification Codes: F51, F5. 

 

INTRODUCTION 

In the past 30 years, Afghanistan has continuously been involved in a protracted conflict. During 

the long years of armed conflict, the people of Afghanistan suffered from gross human rights 

violations. The country has experienced mass executions, disappearances, tortures, ethnic 

persecution, internal and external migrations to Pakistan, Iran, India and elsewhere. Almost every 

Afghan has a story of suffering, struggle and loss to tell. 

After the fall of the Taliban regime in 2001, many Afghans were hopeful that the 

violence would end immediately and justice will prevail. However, the intensity of violence has 

slowed down but did not end totally. In the early stages of nation-building and peace-building, 

the government of Afghanistan and the international community totally ignored the concept of 



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transitional justice. After subsequent internal failed attempts to ensure transitional justice to the 

victims of the long conflict, the last door towards justice was recently closed when the 

International Court of Justice (ICC) refused to investigate War Crimes and crimes against 

humanity in Afghanistan. 

 

RESEARCH METHODOLOGY & DATA COLLECTION STRATEGY 

This study adopts the post-positivist qualitative methodology and applies empirical and single-

case study methods. The rationale behind the selection of Qualitative Research methodology is 

that "it has an unrivalled capacity to constitute compelling arguments about how things work in a 

particular context (Mason 2002). The selection of single-case study will provide "more 

comprehensive and more detailed contact with concrete instances of the events…. (C)ase studies 

also provide our best knowledge of how those [structural and institutional] changes come about 

(Odell 2001)." 

This research generally depends on primary and secondary sources. Sources of data 

include official declarations, speeches of public officials, news reports, relevant books and 

journal articles. 

 

TRANSITIONAL JUSTICE 

Transitional justice is 'the full range of processes and mechanisms associated with a society's 

attempts to come to terms with a legacy of large-scale abuses in order to ensure accountability, 

serve justice and achieve reconciliation" (Rush, Simic, 2014). It includes judicial and non-

judicial mechanisms used to address the legacies of crimes against humanity and war crimes 

after a conflict end or regime change. Transitional Justice is about conditions in which a nation-

state moves from a state of injustice to justice, from authoritarianism to democracy and an 

oppressive government that respects the rule of law. 

'At first, it referred to the judicial process of addressing human rights violations 

committed by dictatorial or repressive regimes in the course of democratic transition. Later on, 

the term also came to be used for processing war crimes and massive human rights abuses 

committed in violent conflicts' (Fischer, 2011). Today it covers the establishment of truth 

commissions and documentation for recognising the suffering of victims, establishing special 

tribunals for prosecuting the perpetrators of atrocities, reparations and also social and political 

initiatives devoted to reconciliation fact-finding, and cultures of remembrance. 

 

THREE PHASES OF THE CONFLICT IN AFGHANISTAN 

Since 1978 Afghanistan has been continuously at war. The period of war up until the end of the 

Taliban regime is generally divided into three phases. The first phase started with a bloody top-

down coup launched by the Marxist-Leninist People's Democratic Party (PDPA) in 1978, 

followed by the Soviet Union invasion in 1979, which resulted in the repression of Afghan people 

by two factions of PDPA-Khalq and Parcham1 for a decade. Most of the atrocities, including 

forced disappearances, mass killings and forced displacement of ordinary civilians and political 

opponents, occurred during this   period of the conflict." (Nadery, 2007).  

The first phase ended with the withdrawal of the Soviet Union and the fall of the Afghan 

government under Najibullah. The second phase started with the formation of the Mujahedeen 

government in 1992. Soon after, the different factions of Mujahedeen became involved in 

fighting each other. The reason Mujahedeen parties did not come to a consensus was that they 

                                                           
1 Khalq and Parcham: two different factions of the PDPA. 



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had 'contradictory objectives: Hezb-e Jamiat(predominantly Tajik), Hezb-e-Islami(Pashtun), 

Hezb-e- Wahdat(Hazara) and Hezb-e- Junbish were fighting to gain local autonomy and control 

in the future government' (Dorronsoro, 2007, p.28). As a result, Kabul witnessed a civil war 

between political parties that fought against the Soviets. Chaos erupted once again, and Kabul 

was bombarded with rockets and RPGs, resulting in gross human rights violations such as 

killing, raping, and looting innocent people. 

The third phase is coincided with the emergence of the Taliban and then controlling 

major parts of Afghanistan between 1996 and 2001. During this phase along with the lethal 

violence inflicted on Afghans, the primary victims were women, religious and ethnic minorities. 

For the first time, the ethnic and religious violence institutionalised to the considerable extent 

where both the Taliban and the minorities massacred each other in heinous manners. 

In every phase of the war, serious war crimes and crimes against humanity, including 

massacres, disappearances, summary executions, indiscriminate bombings, mass rape and torture 

had been committed by almost all the armed groups that fought in the country. As a result, 'more 

than a million Afghans lost their lives, approximately two million were disabled by the conflict, 

and thousands more were detained and tortured for their political beliefs. And throughout three 

decades of war, more than seven million were forced to leave the country and take refuge in 

Pakistan and Iran and elsewhere' (Nadery, 2007). 

 

THE STATE OF TRANSITIONAL JUSTICE IN AFGHANISTAN 

The Bonn Agreement under the United Nations auspices in 2001 did not address transitional 

justice issues, and no mechanisms were discussed to deal with the past abuses. Rama Mani 

mentions that 'there were no motives made to address the causes of war and fears of not reaching 

an agreement resulted in silence' (Mani, 2003). Besides, most of the participants from 

Afghanistan in the conference were leaders who were part of the conflict and civil war. 

The United Nations Assistance Mission in Afghanistan (UNAMA) was established in 

2002 to facilitate the implementation of the Bonn agreement. Important issues such as human 

rights and national reconciliation were on the agenda of UNAMA. However, 'at least in the early 

stages, UNAMA did not give sufficient priority to the protection and promotion of human rights 

and the mission was reluctant to take forward the initiative on the investigation of past War 

Crimes and human rights abuses' (Uesugi,  2009). Barnett Rubin also shares this attitude as he 

wrote in 2003 that "No major human rights organisation… has called for the establishment of any 

special tribunal, international or mixed, to try war criminals in Afghanistan." (Rubin, 2003). Cries 

for transitional justice were not heard and muted in the initial days of post-Taliban Afghanistan. 

However, the establishment of the Afghanistan Independent Human Rights Commission 

(AIHRC) was another significant opportunity to address War Crimes. After discussions on past 

committed crimes, the AIHRC authorised the commission to launch a national consultation and 

propose a national strategy for transitional justice. "Based on a nation-wide consultation among 

6,000 participants, the AIHRC published its much-cited report "A Call for Justice" (2005), which 

established that almost 70% of Afghans consider themselves direct or indirect victims." (Saeed, 

& Parmentier, 2017). The Action Plan identified five key components of justice and 

reconciliation for Afghanistan, including 'truth-seeking, symbolic measures, accountability 

mechanisms involving vetting procedures, institutional reform, and reconciliation' 

(Winterbotham, 2010). The national action remained with its mandate expiring in March 2009. 

However, the Action Plan was not renewed and extended because of significant opposition from 

the parliament and government members. 



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44 

In 2007 the Wolesi Jirga2 followed by the Meshrano Jirga3, passed a National Stability and 

Reconciliation Resolution (The Amnesty Law). Amnesty law was in many ways a death blow to 

the formal transitional justice process in Afghanistan, ensured blanket amnesty to all the political 

wings and hostile parties who had been in conflict before the formation of the interim 

administration, thus turning impunity into law. According to this law, 'all those who committed 

violence and human rights violations before December 2001 shall enjoy all their legal rights and 

shall not be prosecuted' (Human Rights Watch, 2012). The amnesty law shattered any hope for 

transitional justice that many Afghans were yearning to see. With the inability of the Afghan 

government to ensure transitional Justice to Afghan citizens, the last hope of the people was to 

an external authoritative organisation to investigate the committed crimes.  

The International Criminal Court (ICC) was established in 2002 to investigate crimes 

against humanity and War Crimes. Afghanistan joined the ICC in 2003, but until now, ICC has 

not been able to investigate cases of human rights violations from Afghanistan. Although, for the 

first time in ‘2017, a request was made by 'Fatou Bensouda to investigate crimes against 

humanity by the US forces, Afghan National Security Forces, and the Taliban. But the US 

challenged and threatened that they would revoke and restrict visas of ICC staff responsible for 

Afghanistan investigation, which eventually led to the rejection of investigation of human rights 

violations' (Human Rights Watch, 2019). 

 

THE FAILURE OF TRANSITIONAL JUSTICE 

Certain efforts were made to ensure transitional justice to the victims of prolonged conflict after 

the formation of the new government in 2001, with no result. The failure of transitional was due 

to the strong opposition of human rights violators, the reluctance of the international community, 

lack of stability and inability of the Afghan government to ensure justice to the victims of 

conflict. 

Special tribunals were formed for the former Yugoslavia and Rwanda in 1993 and 1994 

and the special tribunal to prosecute Saddam Hussain was established in Iraq. But in 

Afghanistan, no major organisation dealing with human rights issues initiated any process to 

bring justice and try war criminals. With the only exception of AIHRC recommending to 

establish a War Crimes Tribunal to execute those accused of war crimes but faced severe 

criticism from the Afghanistan parliament. Afghanistan became a member of the International 

Criminal Court (ICC) in 2003, but so far, ICC has not prosecuted a single person from 

Afghanistan and recently called off the investigation on war crimes committed in Afghanistan 

after receiving threats of revoking visas from the US. 

An important part of vetting "processes for assessing an individual's integrity as a means 

of determining his or her suitability for public employment", which countries in transition from 

war to peace, from authoritarian to democratic regimes, often employ in order to mark a new 

beginning. (Uesugi, 2009). Vetting and transitional justice are directly connected when the 

records of past committed crimes and human rights abuses are taken seriously in appointing 

public employees or candidates for public employment. Seeking accountability for past abuses 

and crimes can remove criminals from their prestigious positions. 

Although Afghanistan's constitution prohibits anyone convicted of crimes against 

                                                           
2 Wolesi Jirga: Lower House of Parliament 
3 Meshrano Jirga: Council of Elders 

 



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humanity to run for any public office' (Gossman, 2013), until now, no one has ever faced charges 

for such crimes. Also, the constitution does not provide a mechanism for vetting candidates. In 

Emergency  Loya Jirga (ELJ), held in 2002, impunity was entrenched further. In addition, the 

vetting criteria of ELJ required candidates to sign a paper swearing they were not involved in 

killing innocent people or engaged in drug trafficking or terrorism. Despite this, in the event, 

many known to have violated these conditions were present (Rubin, 2003). 

In contradiction to the outspoken wishes of the Afghanistan people for vetting 

government officials, some of the best-known human rights violators have taken up important 

official posts. 'One respondent consequently described Mohammad Qasim Fahim, implicated in 

both war crimes and drug trafficking as a "huge setback to the transitional justice initiative." The 

return to Kabul of Abdul Rashid Dostum, leader of Junbish-i-Milli, believed to be guilty of 

many crimes, including the massacre at Dasht-i-Leili in 2001' (Risen, 2009). 

The conflict Mapping project was launched in 2005 by the Afghanistan Independent 

Human Rights Commission(AIHRC), a mammoth report detailing crimes committed by all parties 

to the conflict- the Soviet forces, PDPA, Mujahideen, and militia. However, the commission was 

not permitted by the government of Afghanistan to publish the report. In 'December 2011, 

however, President Karzai took action against the commissioner overseeing the report, Nader 

Nadery, who had also been an outspoken critic of electoral fraud in Karzai's bid for reelection in 

2009. Karzai did not renew Nadery's term at the AIHRC, leaving the report's fate unclear' 

(Gossman, 2013). 

Juan Mendez mentioned that 'truth-telling mechanisms can be important instruments in 

the search for accountability, but he cautions that certain minimal conditions must be met for 

these mechanisms to be effective' (Méndez, 2006). In Afghanistan, no such consensus has been 

reached. The Action Plan on Peace, Justice, and Reconciliation outlined the truth-seeking and 

documentation mechanism. However, the plan was endorsed in 2006 but with no practical 

measures. In reaction to this initiative, parliament passed Amnesty Law and gave impunity to 

human rights violators. 

 

REASONS FOR THE FAILURE OF TRANSITIONAL JUSTICE 

Immediately after the defeat of the Taliban, little attention was directed to transitional justice. 

Any attempt to pursue transitional justice and to seek accountability for committed crimes faced 

various challenges. Firstly, justice for past abuses was of secondary importance because of other 

serious problems such as insecurity, instability, and poverty in Afghanistan. Secondly, ensuring 

justice to the victims was considered to be risking the achievements of the newly-formed Afghan 

government. Yuji Uesugi as a senior official of the UN, said in 2002 that "transitional justice only 

applies to the post-conflict situation and Afghanistan is not in a post-conflict phase" (Uesugi, 2009). After 

the defeat of the Taliban regime, Afghanistan remained unstable, and the waves of the violence 

continued while the United States and its coalition forces went on with the campaign for the 'War 

on Terror''.  

The crucial role of warlords in the government and power-sharing processes became a 

significant obstacle to transitional justice because any attempt to address the past War Crimes 

and violence would naturally point fingers at those in power. During the meeting for drafting the 

peace agreement in 2001, the clause that "there would be no amnesty for crimes against humanity 

and war crimes" met strong opposition from the Northern Alliance (NA) delegation for the 

reason that it would "defame the struggle of the mujahedeen" (Rubin, 2003). As long as warlords 

were able to secure important positions in the government, it was neither realistic nor preferable 



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to seek accountability for serious human rights abuses. 

After the arrival of the US-led NATO forces in 2001, their main goal was to defeat Al-

Qaeda and the Taliban. In order to defeat them, the cooperation of influential warlords who had 

fought against the Taliban was needed. Most of these warlords were allegedly responsible for the 

country's long war as well as for committing serious crimes not only in the past but also during 

the war against the Taliban. The cooperation of the warlords was necessary for the peace and 

stability of the country. Some of the human rights violators were appointed to the high ranks of 

the government. "Abdul Rashid Dostum who is reported to have "killed hundreds of Taliban 

prisoners while transporting them in sealed containers from Kunduz towards Mazar-e Sharif" 

(Human Rights Watch, 2003, p. 198), returned from exile and later on became the vice president 

in 2014 presidential election. 

Another important hurdle to the application of transitional justice was the lack of stability 

and security.  Ensuring security remained the priority after the defeat of the Taliban. The 

prioritisation of national security led to lenient attitudes towards human rights violators. In an 

interview, former president Hamid Karzai said, "We must first have peace, stabilise peace, make 

it certain, make it stand on its own feet, and then go for justice. But if we can have justice while 

we are seeking peace, we'll go for that too. He concluded: So... justice becomes a luxury for now. 

We must not lose peace for that" (Kolhatkar, Ingalls, 2011). It meant that warlords who have 

committed war crimes would not be held responsible. This was also reiterated by the Lakhdar 

Ibrahimi, head of the UNAMA by saying that, "our responsibility to the living has to take 

precedence over justice to the dead" (Uesugi, 2009, p.106). Without peace and stability 

guaranteeing justice for past crimes is regarded as dangerous and naive. 

In addition, immediately after the toppling of the Taliban regime, major countries, 

particularly the United States and the United Nations, paid only limited attention to the long-term 

aspect of peace-building in Afghanistan. The international community acted differently in 

Afghanistan compared to other post-conflict countries on the issue of transitional justice. For 

instance, the special Tribunal in Iraq prosecuted Saddam Hussain for war crimes and crimes 

against humanity. However, instead of prosecuting warlords and human rights violators in 

Afghanistan, they became part of the government. 

The main objective of eliminating the Taliban and Al-Qaeda did not allow the Afghan 

government and international community to seriously consider the long-term aspect of justice 

and reconciliation in Afghanistan. The US forces contracted many anti-Taliban Afghan warlords 

because they were needed against the Taliban and Al-Qaida. Barnett Rubin argues that along 

with the fighting, the United States armed, financed, and supported them; even after defeating 

the Taliban, this support continued in order to proceed with the war on terror (Rubin, 2003). 

Failure of the Afghan government to take hold of perpetrators of severe crimes resulted in 

retributive violence and paved the way for more grave crimes. Although not a single person has 

been brought to justice in post-Taliban Afghanistan, in contrast, amnesty became 

institutionalised through the Amnesty Law of 2007. 

 

THE APPROACH OF "PEACE VS JUSTICE" IN AFGHANISTAN 

The concept of 'peace vs justice' was first introduced by the former General Secretary of United 

Nations Kofi Annan in a report on transitional justice and the rule of law in post-conflict 

countries. He stressed that justice and peace are not contradictory forces. Rather, if properly 

pursued, they promote and sustain one another. The question, then, can never be whether to 

pursue justice and accountability (Secretary-General, 2004). Annan's ideas that peace and 



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47 

justice are complementary have not taken roots in the context of Afghanistan. Rather, the Afghan 

government and the international community sacrificed justice for achieving peace. The 

justification for sacrificing justice is that ensuring transitional justice could disrupt the peace 

process. 

As expressed by Nobel peace laureate Rigoberta Menchú, 'Peace without justice is only a 

symbolic peace' (Gunson, 1996). While the relationship between peace and justice seems almost 

undeniable, it is no simple matter of remarrying the two once violent conflict has ripped them 

asunder. Afghanistan has witnessed the 'adoption of six peace agreements in the last 40 years, 

each accompanied by blanket amnesties for perpetrators of the most heinous crimes in the name 

of peace." (Dwivedi, 2017). Today Afghanistan has neither peace nor justice for the victims of 

past atrocities and thousands still suffering from the waves of violence in Afghanistan. The 

transitional justice has been hampered by the concept of peace in the context of Afghanistan, 

especially with the gradual increase in the insurgency. Without addressing past committed crimes, 

bringing peace is proven to be wrong in the context of Afghanistan. 

The approach of "peace first and justice later" remained the core policy of Afghanistan till 

the present time. It is quite visible in Ashraf Ghani's move towards Hezb-e-Islami of Gulbuddin 

Hekmatyar and the Taliban. In a peace agreement between 'National Unity Government and 

Hezb-e-Islami in 2016, its criminal records were cleared, and its prisoners were released from 

jails' (Tolo News, 2018). The reason behind signing the peace treaty with the Hekmatyar without 

holding him responsible for crimes he committed was to persuade the Taliban. 'Peace first and 

justice later' proved to be unsuccessful in Afghanistan, when the Taliban continued their 

atrocities, fighting Afghan forces and killing innocent people in suicide attacks. 

 

CONCLUSION 

In the past 30 years, Afghanistan has continuously been involved in protracted conflicts. During 

the long years of armed conflict, the people of Afghanistan suffered from gross human rights 

violations. The country has experienced mass executions, disappearances, tortures, ethnic 

persecution, internal and external migrations to Pakistan, Iran, India and elsewhere. The failure of 

transitional was due to the strong opposition of human rights violators, the reluctance of the 

international community, lack of stability and inability of the Afghan government to ensure 

justice to the victims of conflict. However, the failure cannot be attributed to the Afghan 

government alone, but the international community also acted indifferently. The international 

community paid little attention to the long-term aspect of peace-building in Afghanistan and 

acted differently compared to other post-conflict countries on the issue of transitional justice. 

The decades-long strategy of "peace first, justice later" proved that peace would not be 

achieved until justice is not sought simultaneously with peace. Sustainable peace will require 

accountability and punishing those who are guilty of severe crimes. However, in the context of 

Afghanistan, the human rights violators became the government's decision-makers after 2001. 

Transitional Justice is not merely a matter of past and present, but in fact, ignoring justice pave 

the way for future crimes. 

 

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AUTHOR CONTRIBUTIONS 

Conceptualization:  Bilal Badloon 

Data Curation: Bilal Badloon 

Formal Analysis: Bilal Badloon 

Funding Acquisition: Bilal Badloon 

Project Administration: Bilal Badloon 

Software: N/A  

Validation: Bilal Badloon 

Writing – Original Draft: Bilal Badloon 

Writing – Review & Editing: Bilal Badloon 

 

CONFLICT OF INTEREST STATEMENT 

The author declare that he has no competing interests.  

 

Copyrights 

Copyright for this article is retained by the author(s), with first publication rights granted to the 

journal. This is an open-access article distributed under the terms and conditions of the Creative 

Commons Attribution license (https://creativecommons.org/licenses/by/4.0) 

 

 

https://www.tolonews.com/afghanistan/details-peace-agreement-mapped-out

