Editor’s note: To mark the anniversary of the Taliban’s second takeover of Afghanistan and withdrawal of NATO troops, Just Security has published a series of essays on the developments of the last year and the prospects for the future of Afghanistan. This reflection concludes our series, but our past and future coverage of Afghanistan can be found in our archives, here.
A year since the Taliban military reoccupation of Kabul and the withdrawal of the NATO military presence, justice seems even further away for victims of war in Afghanistan. While there has been a reduction in conflict-related violence, terrorist attacks as well as the fighting between Taliban and the armed resistance in Panjshir, Baghlan, and earlier in Balkhab, Saripul has continued to cause civilian harm. Ongoing violence, coupled with lack of accountability, shrinking space for reporting and documentation of violations, and dismissal of rights institutions has created a bleak situation for victims in Afghanistan. Additionally, despite the catastrophic human rights situation inside the country, the international community and United Nations (U.N.) mechanisms have continued with their “business as usual” approach to accountability in Afghanistan, failing to take meaningful steps to deliver justice, ensure accountability, and counter impunity for gross violations of international humanitarian law in the country.
Afghan victims of war have been waiting for justice for a long time. Afghanistan has been in war for over 40 years, with direct international involvement for the past 20 years. Almost every family has experienced some form of harm by the various parties to the conflict, including the international military forces. In these past four decades, neither national governments and local actors, nor the international community that proclaimed commitments to human rights and democracy have taken meaningful steps toward justice and accountability for civilian victims of war in Afghanistan.
A year since the end of intense fighting, any attention to the victims of war in Afghanistan has faded and the discourse of victim-centered justice seems to be forgotten. Domestically, Taliban have dismantled the existing legal system, dissolving the Afghanistan Independent Human Rights Commission, replacing trained lawyers with their own members and fighters who only have religious training, and excluding female staff from the judiciary. It is unclear what legal framework is being upheld, with laws around protection of women from violence, and detainees from torture, being scrapped. The justice sector has been gutted, with professionals forced out, leaving the sector voluntarily, or fleeing the country, and decisions by Taliban judges are taken on an arbitrary basis. The legal framework and institutions that once offered some protection or legal remedy to victims of war, flawed as they were, have now been completely abolished and abandoned. Afghan civil society actors and the local human rights community are mostly now in exile or keeping a low profile in Afghanistan, unable to advocate for a just peace or victims’ rights. Even the memory boxes – exhibits honoring the memories of victims of the past four decades of war, which had been on display in Kabul until last year – and the activists collecting them have been forced into exile following the takeover by the Taliban.
While the justice sector is being dismantled and the space for documentation and advocacy has completely closed, the violations continue to cause civilian harm. Executions, enforced disappearances, allegations of torture and mistreatment by Taliban have become daily news. Taliban are exercising collective punishment against communities from Panjshir and the Hazaras. They conduct “cleaning” operations in areas of conflict such as Balkhab where they raid houses and arrest civilians on suspicion of affiliation with their enemies, including the former international coalition.
Despite the catastrophic human rights and justice crisis in Afghanistan, the international community has failed to take meaningful action for accountability. Repeated calls for an international investigative mechanism by the U.N. Human Rights Council were finally met with the appointment of a Special Rapporteur for Human Rights in Afghanistan in May 2022. While a welcome step, this measure is insufficient in face of the ongoing crisis of impunity in Afghanistan. Members of the Afghan human rights community have continued to advocate for a stronger investigative and accountability mechanism mandated by the Human Rights Council. The United Nations Assistance Mission in Afghanistan (UNAMA)’s full exercise of its human rights mandate is also essential for holding the Taliban publicly accountable for their violations, although UNAMA has so far tread carefully for the safety of its employees and to ensure humanitarian access for U.N. agencies.
While there are ongoing violations by the Taliban, members of the Security Council have shown a continued willingness to renew travel ban exemptions for Taliban leaders, though some members of the Security Council have sought to limit such waivers in recent days. Reinstating and maintaining targeted travel bans would signal reinvigorated international political will for accountability, and would send a message of hope and solidarity to the many victims of Taliban’s ongoing atrocities.
The International Criminal Court (ICC), the court of last resort, also continues to fail Afghan victims. Sixteen years after the ICC opened its preliminary examination into the situation in Afghanistan, it has taken barely any action to pursue justice for victims. The investigation has been delayed by disputes between the Office of the Prosecutor and the Pre-Trial Chamber; by persistent political opposition from powerful States including the United States; and by the Afghan government itself, which requested in March 2020 that the Court defer its investigations to allow for domestic investigations. Following the fall of Kabul, the Court has been contemplating (since last October) who now represents Afghanistan. Earlier, the prosecutor had faced criticism for limiting the scope of the investigation to Taliban and ISIS-Khorason crimes. In sum, the ICC has so far come to represent selective and delayed justice to many victims of war in Afghanistan.
The Afghan parties to the conflict are not the only ones getting away with impunity. A year after the withdrawal of international forces and many “lessons learned” exercises, key troop contributing countries such as the United States, the U.K., and others in NATO are yet to reflect on the legacy of impunity they left behind. There are no signs of ongoing, independent investigations or accountability for civilian harm caused by the international forces, except the investigation in Australia into alleged offenses by Australian special forces, which had been initiated prior to the Taliban’s military takeover. Just last month, the BBC released a documentary with horrific details about alleged systematic killings by the British special forces in Afghanistan. And yet the possibility of a full, independent investigation into allegations of abuse by the British – or other coalition forces – remains remote.
As the Afghan human rights community and victims’ groups reorganize in exile, recover from the trauma of the Taliban’s military takeover, and/or attempt to operate in an environment of intimidation and fear inside the country, the international community can and must do more for justice and accountability for Afghans. For the many victims of both the international forces and the Afghan parties to the conflict, as well as the victims of Taliban’s ongoing atrocities, the international human rights system has utterly failed in its duty to protect civilians and offer any justice or remedy to millions of Afghans. Supporting the establishment of a U.N. mandated investigative mechanism, initiating a fully empowered and comprehensive ICC investigation, scrutinizing and prosecuting as appropriate the full range of allegations of abuse by the international forces, providing reparations to the victims by the international community, and supporting ongoing documentation by the Afghan human rights community are just some of the steps that the international community could take in support of Afghans’ demand for justice and accountability.