By Marlise SimonsNew York Times
September 29, 2005
Two former Afghan generals who had hoped to live quietly as political refugees in the Netherlands have found themselves in a Dutch court, accused of crimes committed almost two decades ago during the Soviet occupation of Afghanistan. Heshamuddin Hesam, 57, and Habibulla Jalalzoy, 59, were senior officials of the feared Khad secret police during Communist rule of Afghanistan in the 1980s and both are now accused of torture and war crimes at the first trial of its kind in the District Court of The Hague.
Judges have heard gruesome accounts from witnesses who said they had been beaten, starved, deprived of sleep for days on end and given hours of electric shocks until they passed out from pain. During such brutal interrogations of opponents to the regime, Russians were often present, witnesses said.
Human rights groups believe the trial is the first to investigate atrocities in Afghan prisons during the Soviet occupation. They say it is an extremely rare legal examination of Afghanistan's poor human rights record resulting from decades of warfare. One other trial, which took place in Britain, dealt with atrocities during the Taliban regime of the 1990s. In July, an English jury sentenced a former Afghan commander to 20 years in a British prison for torture and hostage-taking. "These are the only trials to date dealing with Afghan human rights crimes," said Patricia Gossman of the Afghanistan Justice Project, a human rights group based in Kabul, who was reached by telephone. "But they are critical because this is the first sign people see here that there is no complete immunity for the past. The Afghan judiciary is not capable of handling any such sensitive cases."
The current trial, held under a combination of Dutch and international law, is also another step in the widening application of "universal jurisdiction," which allows courts in one country to judge human rights crimes committed in another, regardless of the person's nationality. While international tribunals are dealing with large-scale atrocities such as those from the former Yugoslavia, Rwanda and Sierra Leone, it is also the national courts in Europe that are gradually taking on more cases involving asylum seekers living on their soil.
In recent years a Swiss court has sent a Rwandan to jail for war crimes, Danish and German courts have convicted refugees from the former Yugoslavia and a Spanish judge has handed a life sentence to a former Argentine military officer. Last year, a Dutch court sentenced a former officer from the Congo to 30 months in prison for torture.
The two Afghans on trial here have been charged under Dutch laws that flow from the Geneva conventions and from the 1984 United Nations Convention Against Torture. Although these treaties were ratified here long ago, the Dutch government set up its own war crimes investigation unit in the late 1990s - a result of more and more asylum seekers coming to the Netherlands.
Investigations of the two Afghan generals began when they sought political asylum in the 1990s, requiring them to describe their past professions. This landed them on a list of persons who claim persecution but who may have been involved in human rights abuses themselves. Close to 30 Afghans are known to be on that list, a fraction of the estimated 30,000 Afghans who have fled to the Netherlands over the past decade. The two men were refused asylum, but stayed on in the Netherlands, where their presence caused much unrest among other Afghan refugees who feared them, said Fred Teeven, the chief prosecutor.
Hesam was the head of the Afghan military intelligence from 1983 to 1991 and later served as military attaché to Moscow. His subordinate, Jalalzoy, was chief of interrogations. Both men have agreed that they held those jobs, but have denied giving any orders to mistreat prisoners. Hesam said that he followed the instructions of Russian military advisers.
Human rights groups say that more than 200,000 people were tortured by the Afghan secret police during that period and that up to 50,000 prisoners died. One witness, Same Khan, a former subordinate of Hesam, told investigators that in Afghanistan "suspects were always tortured because without torture they would not confess," Teeven told the court. Quoting from Kahn's testimony, he continued: "Electric currents were applied to fingers, toes, ears or nose. The most painful spots were the tongue and the testicles." One victim told the court that he had been subjected to more than 14 hours of electric shocks. Often people died.
The lengthy police investigation has been extremely difficult because it involved crimes that occurred a long time ago in a distant land and a different culture, according to Wim de Bruin, a spokesman for the prosecutor's office. He said that investigators had made numerous trips to Afghanistan and other countries to hear some 30 witnesses, 11 of them torture victims.
In court, Teeven said that the Khad secret police, which had military and civilian branches, was beyond any doubt a much-feared organization that had been created and financed by the Soviet KGB, whose members were often present during interrogations of important prisoners. Among the political prisoners were military personnel, civilians and members of armed Islamic groups, he said. Fear of the Khad remains deep-rooted among Afghan refugees in the Netherlands, Teeven told the court. During the investigations and even during the trial, he said, witnesses and court translators had been threatened by associates and relatives of the two defendants. Some witnesses had withdrawn their names from the record or changed their testimony, the prosecutor said.
Liesbeth Zegveld, a public defense lawyer for Hesam, said that a fair trial was not possible because the defense was not given enough time and funds to prepare such a complex case. She said the prosecution had unfair advantages and had made inappropriate use of immigration files. The defense team also argued that in a trial that depended largely on witnesses, rather than hard evidence, it was improper to pay money to witnesses. Zegveld criticized government investigators for paying witnesses the equivalent of $100 for each session."They call it compensation," she said in an interview. "I call it buying of witnesses in a country where people are very poor. We have not paid our witnesses. The situation is very politicized."
This week, as the prosecution asked for prison sentences of 12 years for Hesam and 9 years for Jalalzoy, the two sat motionless, listening to their interpreters. The verdict, expected in three weeks, will be handed down by a panel of three judges. There is no jury in the case.
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