Consultative Loya Jirga Aug 2020

Loya Jirga: an Attempt at Futility or Legitimizing Criminality

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Ashraf Ghani Ahmadzai convened a Loya Jirga on August 7th for three days. The purpose of the Jirga was to discuss the fate of the remaining 400 Taliban prisoners. During the US -Taliban negotiations, the US envoy, Zalmai Khalilzad with the approval of Mike Pompeo had promised that 5000 Taliban prisoners will be released after they sign the agreement with the US in, Doha, Qatar. It is interesting to note that the promise was made to the Taliban without the agreement or approval of Ghani’s government. Mr. Ghani refused to concede to the prisoners’ release but under US pressure he later agreed to release more than 4600 of the militants. The last 400 were considered hard-core criminals and dangerous and close to half of them being on the death-row. Mr. Ghani called a Loya Jirga.

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What is a Loya Jirga and what does it do?

Loya Jirgas throughout history in Afghanistan have been the gatherings of people convened at the behest of central authority, be it the amir, the king, or the president. They have no legal basis and most of the time including this latest one, the invitees have no inputs. The participants are mostly handpicked and are loyal supporters of the authority.  In some instances, the participants are not even aware of the proceedings, the issues under discussion, and what is expected of them. For the most part, the invitees are illiterate, common people with no other background except their capacity as farmers, shopkeepers, drivers, and others. They are herded together by their handlers and told to do what they are expected. They cheer and clap when they are signaled, put their mark or signature on a document presented to them and raise their hands in support of a motion, issue, or individual. In this latest theater, they did not vote or even raised their hand in acclamation.

Rows of Loya Jirga members sleeping during proceedings - August 2020
Delegates enjoying sleep during the proceedings of Consultative Loya Jirga (Source: EtilaatRoz)


Very rarely, people have spoken their minds or what they believe in and if their position is against the spirit of the convention, he or she is whisked out of the hall as happened in two instances in the latest convention. On the first day, on Friday, a woman member of parliament raised her hand to talk, but she was not given the chance and then she raised a placard saying: “Giving concession to the Taliban savages is national treason.” She was forcibly removed from the hall thrown on the floor and kicked out. On the second day, when another lady went to the podium to speak and as she wanted to apologize for the incidence of the previous day, a pro-Taliban member of the gathering went to the stage, threatened and denounced her with profanity.

Female delegate, Asila Wardak, redressing mistreatment of another woman delegate interrupted by a Talib using expletives for protesting delegate.
Female delegate redressing mistreatment of a woman delegate interrupted by pro-Taliban member with threats and profanity.


Why are Loya Jirgas held?

Loya Jirgas are convened when the ruler is supposedly incapable of deciding on an issue and wants to pass the measure without himself being blamed for the outcome or consequences. It gives a semblance of popular support to the issue. The majority of the jirgas have been nothing more than rubber-stamp gatherings. Starting from the first Jirga in 1747, when Ahmad Khan Abdali was chosen as the new ruler of the country to this latest one, the outcomes have always been as the ruler or authority had wished. Before this latest one, everyone knew the outcome except for some innocent souls who had no ideas about the issues at hand. Mr. Ghani was in favor of releasing the prisoners and he wanted to show that it is the people that decide on this important issue, not just him. He released more than 4500 Taliban prisoners on a whim and he could have released the remaining ones as well. At one time in his previous campaign for presidency, Mr. Ghani had said that 98% of the prisoners were speaking in one language, meaning Pashtu. So, he was eager to release as many of the prisoners as he could and he did so on various occasions, but this time the gravity of their crimes was too much for him to take the blame so he called the Jirga in order to share the blame with him.

What makes a Loya Jirga an attempt in futility is that it has no legal basis and validity in the face of law. In this particular case, by releasing the hardcore criminals, it makes a mockery of justice, pure and simple. Besides, when there is a parliament representing the people of the country there is no need for an artificial and ceremonial body of unelected and unqualified people to decide on issues of importance to the country.

An Ominous Precedence

The US in its agreement with the Taliban left ominous precedence that is dangerous for future dealings with similar groups in the world. First, the US gave a terrorist group legitimacy in the eyes of the world. At least five members of the Taliban delegation were ex-Guantanamo detainees that the US itself had incarcerated for their crimes against the people of Afghanistan. They could have been charged with war crimes and crimes against humanity if brought to in an international court. Contrary to its numerous pronouncements that it does not give in to terrorist demands or that it will not negotiate with terrorists, the US did negotiate for exchange of an army deserter and released the five criminals. Later they were let to became part of the Taliban delegation and the US team sat across from them at the negotiating table. So again, the US did sit with one of the worst terrorist groups and made a deal. This was after years of saber-rattling and fanfare that the US showed in trying to fight the War on Terror. The main point of the deal is that the Taliban will renounce terrorism and that they will not cooperate with or let terrorist groups such as al Qaeda and others in the region use Afghanistan as a base against the US. Very easily said than done.

Secondly, the US not only negotiated with terrorists but also agreed to release more than 5000 Taliban from prisons. These are not ordinary criminals that are incarcerated for petty thefts or drug dealings or some other minor misdemeanors. They are terrorists that were captured on the battlefields by the security forces or caught in their hideouts. They have committed multiple murders of innocent civilians, they have kidnapped people for ransom or political reasons, they have raped women and men that they had access to, and they have done drug dealings in a large scale. Of the 400 hundred that are slated to be released under the Jirga 156 of them are on death row, 105 of them are sentenced to long term prison for murder, 34 of them for kidnapping that ended in murder, 51 of them for drug dealings, and  44 of them are on the Afghan as well its allies blacklist.

Who has the right to their release?

In Afghan jurisprudence, a person is convicted on two bases: the so-called God’s right (Haqullah) and human right (Haqul Abd). A court can decide on the first right but the second right is for the individual to decide. According to one report, a soldier who was a Taliban infiltrator in August 2012 killed three Australian soldiers in Uruzgan province and managed to escape. He was captured in Uruzgan province in 2013. The victims’ families demand justice and the Australian government wants that Trump administration block his release.

No one can forgive both cases under any circumstances. These criminals are already tried in court and convicted so they cannot be released or their convictions overturned. The US while preaching law and order to the rest of the world, violates the most basic tenets of law and pushes for the release of these criminals. Imagine if in the US for any reason, 400 hardcore criminals of the type mentioned above are released from prison and sent out into the society without their sentences completed. They would do exactly what they did in the past and were convicted for. In fact, in Afghanistan at least 35 Taliban that were released earlier under the US-Taliban agreement are said to have died fighting the security forces. Among them are six individuals who were senior province-wide commanders. In a similar ceremonial Jirga which Hamid Karzai held under the banner of Peace Consultative Loya Jirga in 2010, scores of Taliban were released who went to their only business of death and destruction.

During the last two decades, the Pashtun leaders have been keen to release Taliban prisoners. One main reason for the release of these killers is that they share the same ethnicity and believe in Pashtun hegemony. Hamid Karzai, who at times is considered as the God-father of the Taliban, never called them criminals or terrorists. He called them “dissident brothers,” and Ghani called them “political opponents.” By the same token, Khalilzad, although being the US envoy is first and foremost a Pashtun with tribal loyalty and he, also due to ethnic affiliation, is prone to favoritism. Both Karzai and Khalilzad have been associated with the Taliban in the past. So, there is nothing abnormal there. It is the behavior of the US administration that is abhorrent, as it feigns to be the moral preacher to the world, yet when it comes to its interest it violates every law in the book.

Convening a meeting of more 3400 people at the age of the pandemic to decide about the fate of the killers and murders who have killed mostly innocent civilians is wrong under any pretext or circumstance. They had no right or clue or even information as to why they were brought in. Not a single person represented the victims and their families. Some of those families live within an earshot of the palace in abject poverty because their bread earners were killed by those killers.

Dealing under duress with a notorious terrorist group does not bring peace to Afghanistan. Agreeing to concessions to release the convicted criminals is not only morally reprehensible, but practically futile because if anything it would strengthen their resolve to continue their campaign of terror because they know it works. The real culprit behind the Taliban terror group is their sponsor that cannot rest until and unless Afghanistan is secured as its strategic depth.

If the Taliban have their ways, as all indications are pointing to that direction, all the achievement of the last 19 years will be reduced to ashes. The US once it leaves, will not look back as the Trump administration has announced the reduction in American force to 4000 levels by November. The Taliban will raise the notorious flag of the Islamic Emirate of Afghanistan with support from Pakistan. What will come after that is too painful and disturbing to fathom?

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