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An Amnesty for Afghanistan
Presented by Hugo Warner,
Research Fellow, The British Institute of International and Comparative Law
Thank you, Mr Kendall. Good morning, ladies and gentlemen. I’m honoured to be here on behalf of the British Institute of International and Comparative Law in London. The Institute has cooperated with ICOS on a number of projects in the past, and it’s a real privilege to be involved in this current effort.
What I’d like to do is to briefly set out the findings from the research on amnesties which form part of the Feasibility Study, but more importantly to raise the issues which will arise in Phase II of this project when it comes to designing and implementing that amnesty.
Now: forgive my simplicity in going back to the basics of the concept of amnesties. Amnesties are a well-used and, in most circumstances, relatively uncontroversial legal mechanism. The institution of amnesty is found throughout history, appears to have been used in widely varying contexts, and has been used to fulfil a variety of purposes. In short, amnesties are as varied as the societies and areas in which one finds them. An amnesty can be best described as an act by which an individual or a group of people is granted immunity from criminal prosecution, and in some cases civil liability, for a crime committed in the past. Their common feature is simply that they adopt an approach that is restorative rather than retributive – they aim at reconciliation rather than punishment. They are adopted on the basis that there are benefits of non-enforcement that are sufficiently strong to merit circumvention of the normal legal process.
So how can we relate this to the Afghan situation? Well, given the entrenched nature of opium for heroin production and distribution in Afghanistan, the licensing programme - and an inbuilt amnesty - is really the only pragmatic solution to the current crisis. We have a significant number of people who are involved – many of them with no choice – in the production of opium for heroin. The activity is so widespread in Afghanistan that a comprehensive prosecution programme, or a large-scale eradication programme, could destabilize the economy and security, thus undermining moves towards good governance and the rule of law. Therefore it is necessary to create roles in a new legal framework for the individuals and communities involved in different stages of opium production. And we should note that the shift towards a licensing system will create tensions which an amnesty scheme is able to defuse.
The amnesty we’re looking at here has something in common with other amnesty schemes. It will systematically grant exemption from punishment in the interests of the future of the State in which it is implemented. The interesting aspect of this one is that it seeks to replace one activity that is presently illegal with one that is substantially similar, to be used as a tool for future development.
A number of benefits can flow from the amnesty scheme: it will form part of the incentive to shift to licensed cultivation; it will offer a response to the needs of justice, stability and economic development in Afghanistan; and it will ensure a continuous pattern of activity, but one with a more positive outcome. Legal security will be granted to farmers and other opium producing actors, enabling them to re-engage with the state under a more formal system of governance.
There are already indications that the conditions in Afghanistan are conducive to the implementation of amnesty measures. Large-scale pragmatic measures of this sort need to be considered favourably in a fledgling State such as Afghanistan, which has to bring about drastic shifts in patterns of activity whilst at the same time strengthening its law enforcement institutions.
One example is provided by the Disarmament, Demobilisation, and Reintegration of Ex-Combatants programme, which began in 2003 with the aim of replacing the former armed forces of Afghanistan with a new, professional Afghan National Army. Almost 63,000 soldiers and officers have entered into this agreement since its inception. Even more relevant, and just earlier this year, the Afghan Minister of Rural Rehabilitation and Development mooted proposals to grant amnesty to drugs traffickers on condition that they divert their funds into Afghan reconstruction.
Given this, what wider conditions are necessary for the amnesty scheme to succeed? The success and legitimacy of any amnesty depends upon a range of external factors. These include:
• Its compatibility with existing legislation – both domestic and international;
• Its duration and timing;
• The conditions for the amnesty (including perceptions of and tensions surrounding the crime(s) in question);
• The effectiveness of communication and publicity of the amnesty;
• The incentives for compliance; and
• Internal organisational planning and capacity.
We’ll come back to these criteria when talking about the design of the amnesty scheme. However, it’s key to stress that the amnesty requires substantial development of existing law enforcement structures; it must form a carefully defined exception to what has to be an otherwise rigorous justice system. This amnesty scheme aims to replace the current impunity with a system which allows exemptions from prosecution only in those instances where it would serve a positive outcome. This would then be followed by the prospect of enhanced enforcement of counter-narcotics legislation - for those who choose not to participate in the amnesty process.
Let’s look at the potential forms that the amnesty scheme can take. The amnesty has to be constructed in such a way that it will obtain maximum compliance with its objectives. So - amnesties can be said to fall into one of two categories: ‘general’ and ‘conditional’. This division reflects not to whom an amnesty is to apply, but the terms on which it is granted.
First, we have the notion of ‘general’ or ‘blanket’ amnesties, referring to amnesty given to groups of individuals, usually covering all crimes committed during a specific period of time.
Then we have ‘conditional’ amnesties, in which amnesty may be granted upon fulfilment of one or a number of conditions. This differs from a general amnesty in that individual responsibility must be determined. The downside is that the process is often made more complex and is likely to be more protracted as individual cases are examined.
Bearing in mind that the amnesty has to achieve maximum compliance, it may have to incorporate elements of both general and conditional amnesty measures, depending on the persons or groups of persons to whom it is being applied. This said, the amnesty scheme overall would be insufficient if it were simply to apply a general measure of exemption to all past illegal activity by all actors in this area. For instance, undertakings that future opium production would only be in accordance with the licensing system would have to be given.
Let’s move on to the next aspect. Has this been done before? That is, can we draw anything from transitions made in other opium producing countries?
Well, none of the countries with a significant history of opium cultivation, and in which there have been measures to reduce or eliminate its production, such as India and Thailand, are able to supply examples of amnesty measures. Rather, what has been adopted is a policy of non-prosecution – not exactly analogous to a formal amnesty.
For example, India’s programme was one of unification and rationalization of the production of opium over a ten-year period, commencing with its establishment of the Narcotics Commission in 1950. The period of phasing out started in 1949, with a steady consolidation of counter narcotics law enforcement.
Thailand, after commencing its opium control project, essentially gave farmers a four-year period in which to end their opium cultivation and find alternative crops. This approach focused primarily on combating heroin processing and trafficking networks, and only penalised the opium farmers when that four-year period had elapsed.
So: the experience of these countries at least demonstrates the flexibility – the alternative approaches – required when undertaking a large-scale alteration of opium production.
Next, we have to look at how the amnesty is to apply to persons at all levels of the opium for heroin cultivation, production and distribution chain, on the basis that halting their involvement in illegal activities will help strengthen licensed production. In doing so we must bear in mind the provincial and regional variations in the way the opium and heroin markets are organised.
The design and application of amnesty measures to various members of the production and distribution chain needs to be consistent. Yet there can also be said to be varying degrees of criminality in the process – from the farmer driven to opium cultivation out of poverty to the ‘drug baron’ closer to the top of the value chain, whose opium-related activities may include other criminal acts.
The question is then: how best does one deal with these differing criminal activities? Offering amnesty to members of the illegal opium economy, such as opium creditors, local warlords and traffickers is a sensitive matter. And the benchmark for the amnesty’s success is its ability to address these current realities and integrate the opium actors into the legal economy. In doing so it has to strike an effective balance between appropriate incentives and the prospect of enhanced enforcement.
As part of the issue of whom the amnesty is to apply, I’d like briefly to address a sensitive aspect of the amnesty scheme, concerning state officials
Having addressed the main participants in the illegal opium economy, there is the more contentious issue of whether state officials, be they provincial governors, police or others in government benefiting from the proceeds of the drugs trade, should receive some form of exemption from punishment. This might be given, for example, in return for information concerning the production and supply of illegal opium.
After all, the interests of these individuals are served by a weak central government which allows them to participate in the illegal opium business. If applied, such a measure could be more like a ‘self-imposed’ amnesty if applied to servants of the State; this is quite contrary to current thinking. It could also detract from ongoing anti-corruption efforts in Afghanistan.
I’d like now to turn to the legal validity of the Amnesty Scheme. Is it compatible with the legal standards to which Afghanistan has to adhere? Amnesties are typically a matter for the State, but in the case of Afghanistan must be judged against Islamic and international law standards. Let’s examine these in turn.
Many countries have employed systems of amnesty in accordance with Islamic law; some even do so on an annual basis – Saudi Arabia, for example. Islamic law allows for much greater flexibility in how it punishes an offender, and Afghanistan is no exception in this regard. Put briefly – and I hope that the Islamic law experts in the audience will forgive this hasty analysis - the compatibility of an amnesty with Islamic law depends on the group of crimes it concerns. As many of you will know, there are three groups of crimes in Islamic criminal law – hadd crimes, retaliation crimes and ta'zir (or chastisement) crimes. Activities under the illegal opium industry most likely form part of the ta'zir crimes, for which punishments are variable, and from which individuals may even be absolved.
Further, the possibility of amnesty is directly envisaged by the Afghan Constitution and the Afghan penal code; and the provisions of both of these instruments necessarily adhere to the demands of Islamic law. Article 64 of the Afghan Constitution states, among the powers and duties of the president, the ‘[r]educing and pardoning penalties in accordance with law’. Articles 170 and 171 of the Afghan Penal Code allows for either broad or specific amnesties to be adopted by the president.
Moreover, as Professor Wardak’s contribution to the Feasibility Study so effectively conveys, traditional justice in Afghanistan resembles closely the spirit, values and principles of restorative justice. This creates perfect scope for the employment of amnesties, since their approach is restorative rather than retributive.
Now if I can attempt the briefest treatment of the international law element. Of the International Conventions to which Afghanistan is a signatory, the penal measures imposed by the 1961 Single Convention on Narcotic Drugs are of greatest importance here. They are the elements that the amnesty scheme might contravene. Perhaps unsurprisingly, the Convention does not address situations in which there might be exemption from prosecution. However, from Article 36 of the Convention it is clear that the obligation upon the State to punish these activities is contingent upon their being contrary to the provisions of the Convention; not every instance of opium production and distribution requires to be criminalized. After all, the Convention aims also to regulate the production of opium for medicinal purposes. If a State announces its intention to produce opium in accordance with the Convention, those activities in connection with licensed production fall outside the remit of Article 36.
Moreover, it is important to note that this provision is not phrased in terms of an obligation to punish every single offence. This does not interfere with the ability of a State to decline to punish individual offences. In addition, this route would ultimately result in more success in complying with the requirements of the Convention by Afghanistan, given the current, unregulated conditions of illegal opium production.
Finally, it’s sensible for us to look briefly at some of the practical elements in the design of the amnesty. The amnesty scheme must be rigorously defined in order for it to be successfully implemented at all levels. Based on reviews of other successful pieces of amnesty legislation, the following are put forward as some of the basic necessary elements for the amnesty scheme.
First: the conditions attached to the Amnesty. As discussed just now, the objectives of the amnesty scheme in Afghanistan would demand the attachment of a number of conditions (undertakings to cease illegal opium production or distribution, the surrender of illegal opium, provision of information, and the like).
Two: criminal proceedings. No criminal proceedings can be brought for specified offences in respect of anything done in accordance with the amnesty scheme. In addition, provisions for the following might be included: pending criminal proceedings; admissibility of evidence; and criminal acts committed during the amnesty.
Three, there are two issues of Implementation. One has implications for Afghan state institutions. The implementation of amnesty measures will require much effort and application of resources. It is likely that some form of amnesty commission should be established to oversee the process, verify the applicants for amnesty and to engage in subsequent monitoring. It’s logical that this should fall within the remit of the Counter Narcotics Ministry; doing so would ensure that the amnesty scheme is executed in accordance with intensified control of illegal opium production.
There is also the issue of communication. Publicising amnesty measures poses a challenge in Afghanistan given possible limitations on communication networks. Particular thought should be given to the means of informing the public via traditional institutions such as jirgas or shuras, for example, prior to implementation of the amnesty, and whether extension of the amnesty period may be necessary.
Fourthly, Timing of the amnesty is absolutely crucial; for instance, undue delay in implementing the amnesty scheme might result in its prospective abuse by those involved in the opium trade. Similarly, the licensing scheme should be fully operational when the amnesty period has come to a close. Additionally, we have to look at the time required to effectively communicate the amnesty scheme prior to its implementation and the length of the amnesty period itself.
Five: we come to adoption. To guarantee the scheme’s validity, it must be adopted both centrally and at all regional levels as part of a complete package with the licensing system. Its implementation must be as far as possible be in the hands of the Afghan people.
Six: Thorough enforcement of amnesty measures is vital to their legitimacy and success. Given that law enforcement measures under the ban on opium production have historically been weak. Needless to say, an amnesty followed by further lax enforcement would be ineffective at resolving the current situation.
In the process of enforcement, consideration must be given to social control mechanisms as well as institutional capacity. Weakness of the latter in Afghanistan has ensured the continued existence of traditional justice institutions – such as the jirga and shura. These may be instrumental in both decision-making and dispute settlement, and form part of both the incentive system and part of the control system.
Seven: The amnesty can also be used as a process of – for want of a better word – ‘rehabilitation’. It’s crucial to create new or equivalent roles in the legal framework for the individuals and communities involved in different stages of opium production. In many respects the structure of licensed production will differ from the current illegal system. In addition, the government will have to effectively monopolise production from its current fragmented state.
The final issue concerns Monitoring: Almost inevitably there will be unforeseen impediments to the successful implementation of an amnesty scheme. The incentives, for example, in terms of profits for reverting to illegal cultivation may render implementation problematic. This and other risks necessitate effective monitoring of the amnesty scheme, coupled with strong enforcement mechanisms, to ensure its long-term success. Such measures would probably be best taken by the law enforcement bodies currently in development.
So, if I can conclude: there are three simple questions posed by the amnesty proposal: one: is it a good thing? Two: can it be done? And three: how should it be done? I think that the one can answer in the affirmative to the first two questions, but the third poses challenges which have to be dealt with in Phase II of this feasibility study.
The feasibility study as a whole demonstrates the compatibility of the proposed system with Afghanistan’s domestic legal framework and its international obligations. Given these conclusions, further steps can then be made towards the successful implementation of the amnesty scheme.
Now: what I have presented is inevitably a rather schematic view of the amnesty proposal, focussing on its theoretical feasibility. I’m interested in hearing responses to this proposal, especially from the Afghan members of the audience. After all, this is your project. We need as frank a discussion as possible of the risks which this proposal faces; in doing so we can better guarantee its success. Thank you.
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