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The release of 5000 prisoners as a goodwill gesture prior to peace talks and its implications

By Meetra Qutb

The ‘prisoner release’ has long been as a ‘goodwill gesture’ to show a willingness to bringing peace. It is worth learning from the experience of the conflict in Northern Ireland, Israel, India and Pakistan, as there the British and the Irish governments, together with the Irish parties that supported the arrangement, agreed to release most of the political prisoners, even those with “blood on their hands,” to advance their agenda to promote broad support for the political change. In the Good Friday Agreement, which was concluded in April 1998, it was agreed that all paramilitary prisoners belonging to the organisations that had signed the ceasefire agreement would be released within two years. In August 1998, following the passage of the Northern Ireland Sentences Act, a prisoner release committee began to discuss individual applications by prisoners for early release: 446 requests were discussed, and the massive release began a month later. In all, 433 prisoners were released by August 2000[1]. Recent instances of prisoner release include Pakistan’s release of 360 Indian prisoners as a “goodwill gesture” in April 2019, that was set to take place in four phases, amidst tensions between the two countries after the Pulwama terror attack[2]. Most recently Israel freed two Syrian prisoners as a “diplomatic goodwill gesture” following the transfer of an Israeli soldier’s body which went missing in battle during the 1982 Lebanon war. His remains were returned to Israel with the help from Russia in April 2019. The repatriation of bodies held by Syria and Israel, who are in a state of war, happens only rarely[3].

Recent peace deal signed between the United States and the Taliban called for the release of up to 5000 Taliban prisoners; President Ashraf Ghani promises to release 1500 Taliban prisoners as a “goodwill gesture” to get intra-Afghan negotiations started. This act of goodwill is not new by Afghan governments since 2001. President Karzai has quietly exercised his power of pardon. In many occasions he has pardoned prominent Taliban members who later joined back the Taliban. In addition, President Ghani has expanded his power of pardon and has pardoned a massive number of Taliban prisoners earlier in 2019 (887 prisoners) to encourage the Taliban to acknowledge Afghan government as a negotiating party willing to negotiate for peace. Surprisingly on Wednesday, 10th March Ghani issued a presidential decree promising to release around 1500 Taliban prisoners to make intra-Afghan negotiations happen. Under the presidential decree the release will take place in two phases: the first round of 1,500 prisoners will be selected based on their age, health, and the length of their sentences already served – a 100 prisoners will be freed each day. The released prisoners, who will be biometrically identified, will also have to give a written guarantee that they will not return to the battlefield. The remaining 3,500 prisoners will be released after intra-Afghan negotiations begin and 500 will be released every two weeks providing the Taliban reduce violence on the battlefield, Ghani’s decree stipulates for the second phase of release.

However, the Taliban have rejected Ghani’s two-phased prisoner release plan and have reiterated that there will be no intra-Afghan talks until all the prisoners are released.

The release of this big number of prisoners have negative implications for Afghans – the potential victims of atrocities by the Taliban, for the reduction of violence and is unconstitutional regarding the legality of imprisonment of ‘detainees of conflict’ as well as the restriction posed to fundamental rights of citizens, specially the victims of atrocities.

Looking back at the Irish-English Good Friday Agreement, the release of prisoners took place in two years, under a mandated framework, while Ghani’s decree states releasing of 1500 prisoners – 100 every day – and in a second phase after negotiations started, 500 prisoners every two weeks. On the other hand, the number of prisoners to be released by Britain. Pakistan, and Israel (as mentioned above) are not even comparable to the number of prisoners in Ghani’s decree (433; 360; 2 vs. 5000). The questions raise who accommodates the released prisoners (financially). It is evident that they will join the side of the conflict who pays more, as not for all Jihad is an aim, but financial gain. Moreover, given the past experiences of pardoning of Taliban members by Karzai and Ghani, most of the prisoners joined the Taliban after they were released; the violence never saw any reduction in Afghanistan. Who is going to guarantee that the ‘written consent’ that they will not return to battlefield, reduces violence and stop killing the civilians as well as the security forces. Most importantly among these prisoners are some perpetrators of gravest war crimes, committed murderers who are ready to fight the people of Afghanistan once they are freed. The BBC News report from inside the block six of Pul-e-Charkhi prison shows how committed these prisoners are who would love to join the Taliban once released. Based on this report one of the Taliban inmates, Mawlawi Fazel Bari interviewed said that he wasn’t born a fighter, but after five years in prison, he’s never felt more ready to die. He said “I have become so frustrated.  I never thought I would carry out a suicide motor-bomb, but now, by god I swear I will.” Bari stressed that once he is released, he will join his ranks again “Before I was a 20% [committed], but now I am a 100% committed to carrying on my jihad and defending my country.” [4]

Further on that, the release of 5000 prisoners as a ‘goodwill gesture’ puts the liberty of the citizens at risk. The civilians have been the direct victims of the atrocities carried out by Taliban since years. The decree does not contain any provisions as to the rights of the victims, verification of the types of crimes committed by the prisoners, as well as an accountability mechanism and a clear framework for release. A part of the larger discussion is the balance between security and liberty. In the beginning of 2014 National Unity Government, president Ghani introduced indefinite detention by issuing a presidential decree aiming at striking a balance between liberty for the sake of collective security in an era of war. The decree does not include due process rights for the detainees as it allows for detention without trial, if it is presumed that the suspect of terrorist crime might commit a crime if released, and even if he has served his sentence there is a probability that the person might commit a crime. It is asserted that the way balance is employed in criminal justice is associated with limitations and has potential for abuse. Fundamental rights are non-derogable; that to give up liberties is allowing the terrorist to win; that pragmatic objections that liberties sacrificed for security are not regained easily; and that the abuse of a suspect’s rights fosters the terrorist cause. Thus, such sacrifices are unnecessary and ineffective in improving security.[5] The politicians and policy-makers hold the power of the state and individual liberties in equilibrium. Restrictions posed to liberties will affect the process and help the “guilty walk free”.[6]  This legislation now proved to be ineffective, as it did not only regained the security for the citizens, in contrary allows for guilty to walk free.  It is not clear, if these prisoners entitled to release have been convicted at a court of law, have served their term or are detained for an indefinite period of time. On the other hand, the rights of victims are at stake too. The unfair treatment of the victims by the government as well as raising a feeling of intimidation once these prisoners, some of whom are dangerous criminals, is a grave breach of human rights. Through such draconian measures the Afghan government has gone beyond the balance of security and liberty, by first decree it sacrifices the liberty of suspects, and through the second decree it compromises citizen’s security. Therefore, the luxurious powers granted to the president by the constitution have always had unexpected implications on both the so-called perpetrators and the victims. Both decrees are unconstitutional as both do not lead to an end to violence and as a result security is not established. The fundamental rights are non-derogable and here giving up fundamental human rights to show ‘goodwill’ causes the terrorist to win, raises wide intimidation among people and does not guarantee a long lasting peace.

A further argument concerns Kabul’s political turmoil. Ghani had initially objected the Taliban’s precondition for the release of as many as 5000 Taliban, and said that it is the sole authority of the Afghan government to release any prisoners and it would not agree to such a move. Now Ghani’s shift of stance happened in a tensed week, as American diplomats shuttled between Ashraf Ghani and his rival in the recent presidential election, Abdullah Abdullah, to prevent a split in the country’s government, but failed as Abdullah Abdullah also swore himself as the president of Afghanistan – literally in the next door[7]. Ghani changed his mind and pointed to a compromise deal to kick start intra-Afghan talks; presumably the United States had used the release as a bargaining chip with Ashraf Ghani to recognize his victory fully, something American officials had refused to do for weeks after election results were announced. In addition, in an attempt to strengthen his position inside the country and beat his rival, Abdullah Abdullah, with whom he seems to be doing NO COLLABORATION, Ghani is pleading to Taliban to join him and eventually make a power-sharing government. Given the Taliban’s rejection of ‘conditioned release’ of prisoners, Ghani is still left to deal with the critical political situation in Kabul and a lack of a strong negotiating team.

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