Since the fall of the Republic of Afghanistan in mid-August 2021 and the Taliban’s takeover, the people of Afghanistan live not only in a multiplex of dire humanitarian crisis but also in  deep legal uncertainty–for the people of Afghanistan, it is totally unclear what rights, obligations, and legal remedies (if any!) they have at their disposal under the rule of the  terrorist group. Under the Republic’s constitution of 2004, the authorities’ power was limited by the law, and in the event of a violation of the rights, the constitution established an “independent” judiciary to provide a remedy. However, under the Taliban regime, such a judiciary system not only does not exist but is rejected. 

The Taliban has neither dismantled the Ministry of Justice as they did with the Ministry of Women’s Affairs nor have they officially announced the 2004 constitution as void. On the Taliban’s Justice Ministry website, it still states that the 2004 constitution is enforced. Nevertheless, the regime has changed the whole structure of the judiciary enacted under the 2004 constitution. For example, they have claimed to invoke part of the 1964 constitution (from the monarchy era) in their conduct, but Taliban’s edicts never invoke  the constitution(s) at all, rather referring solely to Sharia Law as the source of law. The Taliban’s so-called Sharia Law, however, remains completely undefined and unclear for both the people and the regime itself, since it is not clear what rights and obligations it constitutes for the de facto authorities or the people. 

Taking the Taliban’s ideology into consideration, it seems that even their own self-proclaimed Emirate is underspecified as well as its interpretation of Sharia Law or religious jurisprudence. However, according to experts such as Haroun Rahimi (a law Professor at Bocconi University School of Law), the Taliban’s Chief of Justice has attempted to theorize the Emirate in his newly published book–“Islamic Emirate and its Order”. The book distinguishes between two types of states: one focused on taxation and enrichment, and the other on guidance, particularly towards religious and ethical principles. The author claims the Islamic Emirate belongs to the latter. Only a quick overview of the Taliban’s edicts since their return to power is required to confirm this view. Edicts concerning women and girls’ affairs entailing instructions on how they have to dress  or the  justifications  used to ban them from the education system after primary school or prohibiting them from working are prime examples of realizing a state aiming guidance. Therefore, even if the Taliban has adopted an approach of vague communication regarding the constitution and judicial system, it is obvious that the people of Afghanistan live in a state of  legal uncertainty,  and are being deprived of a judicial system that could accommodate claims against the violation of their basic human rights. 

So far, the regime has breached several International Human Rights Law, including crimes   falling under Art. 7 and Art. 8 of the Rome Statute. These include the crimes of “gender” apartheid, sexual violence against women, collective persecution of women and minorities, enforced disappearance of persons, murder, forced displacement of non-Pashtuns from Central and North Afghanistan, torture of political dissidents, members of the former security forces and officials, breaches of the Geneva Conventions, and much more!

The Taliban’s crimes are repeatedly reported by different entities of the UN, in particular by the Special Rapporteur on the situation of human rights in Afghanistan, UNGS reports to the UNSC, and many other international organizations such as Amnesty International and Human Rights Watch. Such crimes are also documented by both international and domestic media outlets. These reports have repeatedly called upon the international community to take measures to end the impunity and bring the perpetrators to justice in accordance with international law. Nevertheless, no significant measure has been undertaken to meet such calls. The reactions from the international community have remained limited to mere condemnation and/or calls upon the Taliban to halt such violations and respect human rights. Such an approach towards the terror Regime is often portraited as a lack of possibilities for the international community to take measures.

Afghanistan has signed and ratified several core human rights conventions (even the Taliban’s Justice Ministry on their homepage acknowledges this), and more importantly, is party to the Rome Statute. This in turn obliges the states to lodge complaints to the treaty body in case of violations. Taking into account that legal actions against Afghanistan State might imply recognition of the regime, the international community can refer to the situation in accordance with Art.1 of the Rome Statute (individual responsibility), pursuant to Art.13 of the statute. However, the office of the prosecutor has already announced its  investigation of  the crimes under its jurisdiction enlisted in Art.5, in particular prioritizing its investigations on crimes committed by terrorist groups–the Taliban and Islamic State- Khorasan (IS-K). Nevertheless, the state’s party can provide sufficient support to the office of the prosecutor and the UN mission in Afghanistan to enable expedited investigations. For instance,  targeted support to form an administrative body within the UN Mission in Afghanistan with the sole focus of assisting the court’s investigation within Afghanistan would have a significant impact. 

The ICC’s prosecutor, Karim A.A. Khan, before the next Assembly of States Party called for urgent help and support for his office and the court, stating that “victims around the world expect a properly funded ICC and to see the law on the front line.” Taking the political situation of Afghanistan into consideration and the limits emanating from it, the issue of sufficient support, both politically and economically, cannot be ignored. For instance, according to the court‘s report on its activities from 16.09.22 to 15.09.23, the Office of the  Prosecutor filed a total of 24 cases, none of which were related to Afghanistan. Additionally, during this period, 16 arrest warrants were issued for individuals, none connected with Afghanistan. Furthermore, The Office of the Prosecutor conducted a total of 430 outreach meetings, only one in Afghanistan. Hence, if the court’s undertakings are not supported through a well-coordinated collective effort, bringing the perpetrators of these crimes to justice would be unattainable, and thus, in addition to the absence of domestic legal remedy, the people of Afghanistan would be deprived of a possible legal remedy within the international law as well.

Providing support to the people of Afghanistan within the framework of international law would have a significant impact on the overall situation of human rights in Afghanistan. First, as the Taliban see their authority unchallenged within Afghanistan, criminal legal proceedings against their officials will shatter such perception. Even if an arrest warrant of Taliban officials might not be enforced, it would definitely limit their mobility.  More recently in Germany and the Netherlands, the representative of the Taliban’s government could participate in meetings and propagate for the regime in Europe. If found in violation of international law, this would no longer be possible. 

Second, legal actions within international law frameworks would encourage the civic resistance movements against the regime. At the present moment, Afghanistan’s civilian population, in particular the civil opposition movements, feels abandoned by the international community. The support declaration by the international community to them, especially to the women’s rights movements, has not been manifested in action. Putting the Taliban’s officials on trial would substantiate the declared support.

Third, resorting to legal tools available to the international community would also provide another useful tool to  deal with the Taliban. This could, in turn, marginalize the most radical individuals within the group, and may put them under pressure to change their course.    

On the other hand, in times as turbulent as the present, where the geopolitical rifts among the great powers and regional powers undermine  international law, in particular human rights law, adherence and demonstrating the enforceability of international law is needed more than ever. Furthermore, a speedy legal process against the Taliban as  was seen in the case of Putin, would at least increase the credibility of the court and would counter the criticism of a double standard approach.  

Written by Mansoor Ayubi, Edited by Anna Riggs

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