Afghanistan: Dismantling Human Rights in Afghanistan: The AIHRC facing a possible downgrading of status

The Afghanistan Independent Human Rights Commission (AIHRC) “has been until now”, said Navi Pillay, the United Nations High Commissioner for Human Rights (UNHCHR), “a critical, credible institution.” That ‘until now’ is significant: Pillay was visiting Afghanistan partly to discuss the risk to the Commission of losing its ‘A status’ when it comes up for international accreditation in November. The problem is the flawed way new commissioners were appointed earlier this year. Pillay said she had received no assurances from President Karzai that he might revisit those appointments. AAN’s Sari Kouvo and Kate Clark report.

It was Navi Pillay’s first visit to Afghanistan and she came partly because of the AIHRC issue. During her visit from 15 to 17 September 2013 she said she had made a “strong plea” to President Karzai for him to “rectify the problem” with the appointment of AIHRC commissioners, but admitted she had come away empty handed. In a press conference at the end of the visit, she urged an “extra effort by the president and his government to ensure that the human rights gains of the past 12 years are not sacrificed to political expediency during these last few months before the election.” She summed up:

… I end this visit to Afghanistan with mixed feelings. I had some good meetings, and heard some important commitments, particularly from the two new security chiefs. But my concern that the momentum of improvement in human rights may have not only peaked, but is in reality waning, has not been allayed.

(See a transcript of her press conference as an annex to this dispatch and online here)

These are strong words from the high commissioner and should set off alarm bells for all those committed to human rights in Afghanistan. While the flawed appointment process for the new AIHRC commissioners and the fact that the AIHRC now risks losing its A status accreditation with the International Coordinating Committee of National Human Rights Institutions (abbreviated to the ICC)(1) are not the only issues of concern, they are telling – and alarming – examples.

AAN has several times reported on the unilateral removal in December 2011 of three of the AIHRC’s commissioners and on the many back and forths in how the new commissioners were appointed (see here, here and here). The end result was that the head of the AIHRC, Sima Samar, was forced to accept appointments she was not happy with. Only one of the five new commissioners has a background in human rights; most controversially, one is a former Taleb.

A sense of how bad the atmosphere in the Commission is came on 17 September 2013, when one of the new commissioners, Qadria Yazdanparast, in a ToloNews interview (not available online) accused Samar and some of the other commissioners of undermining the newcomers. She criticized the Commission for “doing nothing for human rights” and asked all the commissioners to resign. Yazdanparast’s statement does not come as a surprise: as President Karzai chose to unilaterally appoint commissioners not approved by Sima Samar or vetted through any form of consultative process, the Commission is now weighed down by a rift between the old and the new commissioners.

The A status accreditation is the highest level possible and means a national human rights institution is in full compliance with the Paris Principles governing human rights institutions (seehere). Even at the time the AIHRC received its A status, the way the AIHRC’s commissioners are adopted was controversial: a by-law of the AIHRC gives the head of state the responsibility for appointing commissioners. This is not in accordance with the Paris Principles that foresee a more consultative process. National human rights commissions are not non-governmental institutions, but independent government bodies and need to enjoy some distance from the executive. The long delay in appointing the commissioners and the way in which they were appointed is what now risks the Commission’s A status accreditation.

Richard Bennett, who was the UNHCHR’s representative in Afghanistan when the AIHRC received its accreditation and who has since worked on issues relating to the accreditation of national human rights commissions in both Nepal and South Sudan, told AAN that “if the AIHRC loses its A status accreditation, this should be seen as a reflection on the government’s commitment to human rights and not as a reflection on the AIHRC’s work.”

Some donors may not want or, because of their own rules (eg the European Union), not be able to fund the Commission if it loses its A status. The AIHRC could find itself ‘punished’ for the president’s appointments, over which it had no control. It is conceivable that donors could instead respond to the new appointments by threatening to reduce general funding to the government, so that the AIHRC itself was not further damaged. The conditionality envisaged by the Tokyo Mutual Accountability Framework (see here) did give donors room for maneuver. It pledged the government to “… allow the Afghanistan Independent Human Rights Commission and civil society organizations to perform their appropriate functions.” However, a meeting of senior officials from government, donor nations, the UN and others which reviewed progress of the Framework in July 2013 ended merely with a message, in the words of the UN of “encouragement” to the government to “take the measures necessary to maintain the independence” of the AIHRC .(See also Amnesty International’s advocacy here and an analysis of why the Framework was always problematic).

For donors to take action would require them putting human rights above a myriad other considerations. This might be viewed as using a sledge hammer to crack a walnut or showing courage and commitment to Afghanistan’s future or amounting to unwarranted foreign interference. Pillay’s view is clear: the AIHRC is critical for the country, especially as it faces a year of international troop withdrawal, elections and leadership change:

Afghanistan needs to brace itself to ensure that the tumultuous changes that will take place before the end of 2014 do not trigger a serious deterioration in the human rights of any segments of the population, especially women. Afghans have suffered enough over the past 34 years of conflict, destruction, displacement, hunger, greed and deprivation. We all owe it to them to make an extra effort to ensure the fulfillment of their human rights, to which they are all entitled.

As it stands, the Commission is facing a downgrading of status and concurrent loss of reputation, as well as a loss of funding, all of which would severely impede its ability to work at a time when an independent, credible, national human rights watchdog is becoming even more important.

(1) The ICC is a global network of human rights institutions which is not part of the UN, but liaises closely with it. (http://nhri.ohchr.org/EN/Pages/default.aspx)

Annex

Press conference

Kabul – Tuesday, 17 September 2013

Participants: – United Nations High Commissioner for Human Rights Navi Pillay – Director of UNAMA’s Human Rights Unit Georgette Gagnon – OHCHR Spokesperson Rupert Colville – Head of the Afghanistan Independent Human Rights Commission Sima Samar – UNAMA Spokesperson Nazifullah Salarzai

Nazifullah Salarzai: Good morning. Welcome to our press conference. I will briefly introduce our guest speakers here today and I will then hand over to Rupert to make some brief remarks:

· Navi Pillay, the United Nations High Commissioner for Human Rights,

· Dr. Sima Samar, the Chair of the Afghanistan Independent Human Rights Commission (AIHRC),

· Georgette Gagnon, UNAMA Director of Human Rights Unit, and

· Rupert Colville, who will take over from me now. Please.

Rupert Colville: Thank you very much. Just to explain very briefly what the High Commissioner is going to do is read a statement. I beg your patience, it is quite long and made longer by the need to translate. This is the way we always end country visits by the High Commissioner –there is this end-of-visit press conference and a statement. The statement is important because it is the final record.

Navi Pillay: Good morning and thank you for coming.

This is my first visit to Afghanistan, but it follows a lengthy one by one of my top officials, Assistant Secretary-General for Human Rights Ivan Simonovic in 2011. While it has been a pleasure to be in Kabul, and to see the extent of urban development since 2001, one can only gather so much from a fleeting visit to the capital city of a country as diverse and challenging as Afghanistan. I regret having been unable to meet people in other parts of the country on this particular visit.

Nevertheless, the UNAMA Human Right Unit includes senior staff from my office and has 80 human rights staff in 12 locations across the country, who talk to people on a daily basis. The Human Rights Unit reports to me as well as to the Special Representative of the Secretary-General, the SRSG. The Unit produces frequent reports on key issues, including the protection of civilians, violence against women, detention and torture. I have been heartened during this visit to see the strong support provided to the Human Rights Unit – indeed the whole issue of human rights — by the current SRSG as well as the acknowledgement by the Afghan authorities that these reports are helpful to them by pointing out both systemic problems and gaps in implementation.

I have focused on three main issues during the visit, which was triggered by some pressing concerns that have emerged during this crucial period leading up to the Presidential elections next April, and the subsequent rapid downsizing of the International Security Assistance Force (ISAF) scheduled to take place during the second half of 2014.

Afghanistan is clearly at a critical juncture with the ongoing political, security and economic transition concluding in 2014 – all of which will have an impact on the human rights of its citizens. There have been some distinct human rights achievements during the past 12 years, but they are fragile, and many Afghans are expressing fears that the overall human rights situation is deteriorating on several fronts.

Over the past two days I have discussed these issues with President Hamid Karzai, the Ministers of Foreign Affairs and Interior, the National Director of Security and the Deputy Chief Justice of the Supreme Court. I have also held talks with the Chair of the Afghanistan Independent Human Rights Commission (AIHRC), and with members of civil society, including several key umbrella organizations representing large nationwide groupings of NGOs. I also met with the diplomatic community and with the Deputy Commander of ISAF and NATO (North Atlantic Treaty Organization) Deputy Senior Civilian Representative.

My first aim has been to focus on the importance of ensuring that these gains are consolidated rather than undermined. This will take determination and courage on the part of the President and his Government, and on the part of many thousands of State employees at both the national and provincial levels, and of Afghanistan’s active civil society and media. They will need to stand firm, not only against rising political pressures as the election approaches, but also against the ominous background of a sharp climb in the number of civilian casualties during the first six months of 2013.

Causes of this include the increased indiscriminate use of improvised explosive devices, as well as a sharp increase in targeted killings of civilians, especially government officials, by anti-Government forces. Although the vast majority of civilian casualties are caused by anti-Government forces, the number of civilian casualties caused by actions of various Afghan security forces including police – has also risen, and in my discussions with the new Minister of Interior and National Director of Security, just hours after they were introduced to the lower house of parliament, I stressed the need to try to reduce the numbers of civilians killed and injured during military and police operations. They pointed out the tragic fact that the security forces themselves are suffering a constant stream of casualties at the hands of armed groups.

My second focus has been on the issue of violence against women. The landmark law on the Elimination of Violence Against Women was a very significant achievement. However, implementation has been slow, and extremely patchy, especially in rural areas, with police reluctant to enforce the legal prohibition against violence, and prosecutors and courts also slow to enforce the legal protections contained in the law.

Violence against women remains endemic, and I have urged the relevant authorities to do their utmost to speed up and improve the implementation of this important law, which President Karzai passed by decree in 2009. I am encouraged by the ready acknowledgement by top officials that much more needs to be done, especially in rural areas, and their commitment to pursuing further improvement. I also noted the widespread concern among civil society groups that the momentum on advancing women’s rights has halted, and indeed may even be regressing.

I thanked President Karzai for his strong public stand against the use of torture in numerous Afghanistan detention facilities. I requested the Government, as well as the Deputy Chief Justice, to act more firmly to ensure that cases where torture has been used to extract confessions are thrown out and that perpetrators of torture are prosecuted. Until this happens on a regular basis, the extent of torture taking place in Afghanistan today is unlikely to diminish. As far as we are aware, there has not yet been a single successful prosecution of a state employee for torture, and few, if any, thorough investigations designed to result in prosecutions.

The third main topic of discussion during my visit has been the future of the Afghanistan Independent Human Rights Commission. This extremely important national institution succeeded, in an impressively short space of time after it was set up, in gaining the coveted ‘A’ Status under the Paris Principles – an international peer-run system of accreditation for these key national human rights bodies, which now exist in more than 100 states worldwide.

The status of the AIHRC will be reviewed this November during a rigorous examination by the cross-regional body of 16 “A” Status National Institutions, known as the International Coordinating Committee. There are real concerns — which I share — that the recent process leading up to the appointment of five new members of the Commission was sufficiently flawed for it to lose its “A” Status. This would be a very serious and regrettable setback for one of the current Afghanistan Government’s most notable achievements in the area of human rights. It is essential that the Commission is strengthened, not weakened, and I made a strong plea to President Karzai, who is in a position to rectify the problem, to do his utmost to strengthen the position of the AIHRC before it comes up for review in two months’ time.

To sum up, I end this visit to Afghanistan with mixed feelings. I had some good meetings, and heard some important commitments, particularly from the two new security chiefs. But my concern that the momentum of improvement in human rights may have not only peaked, but is in reality waning, has not been allayed. In addition to the issues I have already raised, related issues such as improvement of justice, development, alleviation of poverty and economic rights which are going to need continued attention for many years to come.

I urge an extra effort by the President and his Government to ensure that the human rights gains of the past 12 years are not sacrificed to political expediency during these last few months before the election.

Afghanistan needs to brace itself to ensure that the tumultuous changes that will take place before the end of 2014 do not trigger a serious deterioration in the human rights of any segments of the population, especially women. Afghans have suffered enough over the past 34 years of conflict, destruction, displacement, hunger, greed and deprivation. We all owe it to them to make an extra effort to ensure the fulfilment of their human rights, to which they are all entitled. Afghanistan itself was a pioneer on human rights: it was one of the initial group of nations responsible for the creation of the United Nations Charter in 1946 and the Universal Declaration of Human Rights in 1948. It is time its population drew the full benefit of the system its Government helped create all those years ago.

Thank you.

QUESTIONS AND ANSWERS

Tolo TV [translated from Dari]: First of all, I would like to welcome you to Afghanistan. And, secondly, I would like to know your assessment of the overall human rights situation in Afghanistan. How deteriorated is it according to your assessment? Secondly, there are peace talks going on. What will be your concerns, if the Taliban returns, with regards to human rights and, in particular, women’s rights? And, you mentioned that the structure of the Afghanistan Independent Human Rights Commission should be revised. If the Government itself is interfering in the work of the Human Rights Commission and, even some time ago, the Government did not allow the Commission to publish one of its reports which is based on some documents – I would like to know what will be your decision after the assessment and revision of t! he Human Rights Commission’s position.

Navi Pillay: There are many questions! This is why I have come here personally to assess the situation. This is why I sought reassurance from the Government that there will not be a deterioration in the gains in human rights achievements from the past 12 years. So, in my view, there has been commendable progress in some areas over the past 12 years, but I do have serious concerns that the human rights situation in the country is deteriorating.

I’ve had lengthy discussions with civil society activists. They have made it clear to me that they feel the gains of the 12 years are vulnerable and at risk of being reversed during and after the transition, and one of the examples they gave me is that the quota of women’s participation in political offices in provincial elections has been reduced from 25 per cent to 20 per cent.

As I have said I am also concerned that civilian causalities have increased in the first six months of this year and also that the efforts that seem to be underway to weaken the protection of women’s rights because the statute on the Elimination of Violence Against Women is not being implemented. Torture is still an ongoing problem in Afghan-run detention facilities and I fear that the recent appointments to the Afghanistan Independent Human Rights Commission will result in weakening of that institution. The criteria under the Paris Principles are that the appointees must be independent and have an understanding of human rights issues, at least some experience in human rights.

So, then this is the moment for human rights to be strengthened, not weakened or sacrificed. The Afghan Government has made many statements proclaiming their commitments to strengthening human rights which is reassuring but action is needed now more than ever.

New York Times: You spoke to President Karzai I assume about theHuman Rights Commission. What did he tell you? Did he give you any hope at all that he’s willing to undo the damage done?

Navi Pillay: Well, I made convincing arguments for him. I left in the hope that he will revisit the matter. He did not specifically say that he would. The human rights agenda is an Afghan agenda and the Afghanistan Independent Human Rights Commission has been, until now, a critical, credible institution dedicated to furthering that agenda. The President agreed with me that human rights are very important for Afghanistan and therefore I expect him then to bolster this one institution that would address the human rights concerns here. I did raise many concerns publically before my visit here about these recent appointments to the Commission, urging that action be taken to address these concerns before the institution undergoes its periodic accreditation review. If the Commission is downgraded, it will be damaged in a number of ways and the funding may also be affected.

BBC: I wonder what your view is of the former warlords that are in power in Afghanistan, that are in positions of high office, and whether there is any opportunity for war crimes trials? There is a groundswell of civil society opinion that there should be criminal actions for the events, particularly of the 1990s, here.

Navi Pillay: So let me say that it has always been my consistent position as High Commissioner for Human Rights that justice is a very essential component of peace, that past atrocities must be investigated as well as current ones addressed. In my discussions with the President, I noticed the emphasis he was placing on peace so I countered that it is not political expediency that is important now and that justice and human rights should not be sacrificed.

BBC: So would you back trials were there to be a real movement in this country for that to happen?

Navi Pillay: I would back investigations, prosecutions and trials.

Al Jazeera English: You have mentioned before, and in your statement, that you feel as though you would urge human rights achievements of the last 12 years not to be sacrificed for political expediency. Do you believe, more particularly to women’s rights, that those rights are really likely to be sacrificed and are being sacrificed in the wake of the elections next year? Are human rights going to be an important issue next year or do you worry that people will forget about those for political survival, especially considering the dangers of a more bolstered or more influential power [inaudible]?

Navi Pillay: In all my discussions and, in particular my discussions with President Karzai, there is an understanding on the part of the Government that it is women and children who have suffered most in the conflict. Civil society or actors whom I spoke with are extremely concerned about losing their rights and this is why I mentioned political expediency – that the rights of women in particular must not be sacrificed, they must be particularly protected. And so I want to repeat to you some of the things I said at these meetings: that any peace process must be inclusive and just in order to be durable and lead to a stable Afghanistan and that means ensuring the full and active participation of women in all aspects of any peace process. The Foreign Minister said himself that Afghan women have suffered a huge ! amount in the armed conflict and I countered therefore that a solution to resolve the conflict is by the full inclusion of women.

Reuters: The right to vote is basically human rights. Yesterday, the President announced the appointment of five members of Independent Electoral Complaints Commission. Are you concerned about the fact that all these five people are or will be quite close to either Karzai or his two Vice-Presidents?

Pillay: Well, this is then a question that should be addressed to the Chair of the Human Rights Commission, who is here. But I did raise it and civil society informed me that they had put up a list of 60 names and none of these were selected.

Reuters: Does it concern you, the appointment of these five people?

Pillay: I raised these concerns, but this will now be reviewed by the Coordinating Committee of National Human Rights Commissions.

Sima Samar: Thank you very much everyone and thank you particularly to the Human Rights High Commissioner for her visit and also for her emphasis on the strengthening of the Afghanistan Independent Human Rights Commission.

With regards to the appointments to the ECC [Electoral Complaints Commission], the new structural law allows that a selection committee comprised of representatives from the Upper House, the Lower House, the Supreme Court, the Independent Human Rights Commission, and also the Chairman of the Constitution Oversight Commission and a representative of civil society, get together and introduce 15 candidates to the President and then the President will select six members out of these 15 suggested candidates. As to who would be selected by the President, of course are the ones they know would be selected. But as a citizen of the country, I consider it a positive step forward rather than one person to be deciding on the appointments. Voting is the right of every citizen of the country and the turnout of the people in the elections ensures both the transparency and! the security of the elections.

Georgette Gagnon: May I just clarify your question? The High Commissioner was talking about the appointments to the Human Rights Commission, not the Election Commission. The UN, UNAMA, is going to make a statement about these appointments shortly.