United States Institute of Peace
14 June 2022
The Taliban’s takeover has increased the risk of mass atrocities. Here’s how the United States can help prevent them.
1. Provide resources to the special rapporteur for human rights in Afghanistan.
On April 1, the U.N. Human Rights Council appointed Richard Bennett as special rapporteur on the situation of human rights in Afghanistan to monitor and report on the human rights situation and make recommendations to improve it, including supporting the de facto government in fulfilling its human rights obligations and civil society in engaging the government and international bodies. Special rapporteurs operate in a personal, unpaid capacity, making them independent from U.N. human rights bodies, but they are still dependent on limited U.N. resources. Special Rapporteur Bennett is understaffed and underfunded to meet the scope and breadth of his mandate. The United States should strengthen his ability to fulfil his mandate through political and financial support, particularly in conducting outreach and collecting information from affected populations. Such support could include financing regular trips to Afghanistan, providing a secure storage platform for information collected, technological and forensic tools, or connecting the special rapporteur with affected communities.
Special Rapporteur Bennett might benefit from sharing experiences with the special rapporteur for human rights in Myanmar, Tom Andrews. Andrews, a former anti-genocide advocate and Maine congressman, issues regular public commentaries about the worsening human rights situation in Myanmar following the 2021 coup, is highly visible in the media, and has carried out his work with political and financial support from the U.S. government. His past experiences advocating to the U.N. and in Congress have allowed him to tailor his reporting and political messages to disseminate them more broadly. And he uses the language of mass atrocities in assessing the behavior of the junta, highlighting the severity of threats presented to civilians. Andrews’ mandate is also quite broad and includes support to the government and civil society, although he has prioritized civil society support in the wake of the coup. Andrews has led calls for sanctions against Myanmar officials and industries for the junta’s treatment of civilians, many of which have been adopted.
Special Rapporteur Bennett should similarly consider prioritizing protection of civilians within his mandate. This includes using the language of mass atrocities where applicable. As Naomi Kikoler, director of the Simon-Skjodt Center for the Prevention of Genocide at the U.S. Holocaust Memorial Museum, noted, invoking the language of mass atrocities is a powerful tool for recognizing the suffering of victims, particularly in Afghanistan where such crimes are often framed as terrorism.
2. Document atrocities now to identify perpetrators and risks to vulnerable communities.
Documentation is critical to any future transitional justice process in Afghanistan — even if prospects for accountability are currently slim. Farkondeh Akbari, a postdoctoral fellow in Monash University’s Gender, Peace and Security Centre, said documentation is crucial to recognizing the harm suffered by Afghan civilians. Documentation captures testimony from victims and witnesses and can strengthen transitional justice processes even if victims and witnesses are not able to participate directly. Transitional justice processes from Argentina to Cambodia to Guatemala have used documentation as a basis for criminal investigations, supporting truth and reconciliation efforts, and/or memorializing the harms suffered by victims.
The Taliban’s takeover and evacuation of many human rights defenders has made documenters’ work riskier and limited their capacity to operate, particularly in documenting ongoing crimes. This, in turn, requires more robust support from the United States and other members of the international community committed to atrocity prevention. U.S. supported, locally led documentation initiatives are ongoing in Syria, South Sudan and Ukraine, where documenters and victims face similar risks in collecting information related to ongoing atrocities. The United States provides capacity building assistance that has allowed these initiatives to operate professionally, transparently and securely, strengthening their ability to support ongoing or future transitional justice processes. Such expertise should be applied to Afghanistan. As U.S. Special Envoy Rina Amiri noted, the United States must “support human rights actors and local actors through funding, cybersecurity training, and other tools to give them a fighting chance to carry out their work under incredibly challenging circumstances.”
3. Create an independent U.N. investigative mechanism.
Creating an independent U.N. investigative mechanism to collect evidence of atrocities in Afghanistan would send an important message to perpetrators and potential perpetrators about the U.N.’s commitment to accountability and civilian protection. Human rights monitoring and reporting roles are currently split between the United Nations Assistance Mission in Afghanistan and the U.N. special rapporteur, but neither institution is explicitly charged with collecting, preserving and analyzing evidence of crimes in a way that could be used for future transitional justice processes. Bennett’s mandate allows him to “seek, receive, examine, and act on information from all relevant stakeholders,” which provides him authority to operate similarly to an investigative mechanism, but does not require it. Given his resource constraints, fulfilling this role would be a monumental task. Creating a U.N. investigative mechanism would fill that gap.
Three U.N. investigative missions are currently underway, in Myanmar, Syria and Iraq. Each relies heavily on partnerships with local documentation efforts. Of these, the U.N. Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD) — established through a Security Council resolution in 2017 — may provide the most useful framework, but also requires the most political capital to establish. UNITAD currently works in Iraq to support the Iraqi government in bringing perpetrators of ISIS crimes to justice and is the first U.N.-led investigative mechanism with an in-country presence. Its capacity to directly collect evidence lends additional credibility to its investigations. Because of its in-country presence, however, UNITAD required Security Council authorization and host-state consent to operate. While the Independent Investigative Mechanism for Myanmar and the International, Impartial and Independent Mechanism for Syria do not maintain an in-country presence — and as a result must rely on submissions from stakeholders for evidence collection — they were established by General Assembly and Human Rights Council resolutions, making them far easier to stand up.
To effectively respond to the needs of vulnerable communities, the United States should advocate for the establishment of an investigative mechanism empowered to collect evidence of crimes committed by all perpetrators in Afghanistan. In considering how best to develop an investigative mechanism for Afghanistan, the United States should consider both the needs of Afghans in interfacing with such a mechanism and the political feasibility of creating such a mechanism through U.N. bodies, particularly given the current dysfunction in the Security Council.
4. Break the cycle of impunity by supporting the International Criminal Court and universal jurisdiction cases.
Impunity is a major driver of atrocities. It emboldens perpetrators and drives victims away from justice processes. The legacy of impunity runs particularly deep in Afghanistan, where atrocities have been committed by numerous actors over decades with little — if any — accountability. As two of these authors recently noted, the international community has largely come to accept impunity for crimes committed in Afghanistan, a reality made all the more galling by the swift action taken to provide accountability for crimes committed in Ukraine. Breaking this cycle is essential to providing justice to victims of atrocities.
Accountability for atrocities in Afghanistan is not currently possible through Afghan courts. As Shukria Dellawar, the legislative and policy manager for the prevention of violent conflict at the Friends Committee on National Legislation, noted, “every time the government shifts, or a new government comes in, there is no rule of law.” The International Criminal Court (ICC) is typically viewed as the best prospect for international justice for Afghan victims, but the status of the ICC prosecutor’s investigation is unclear, and the ICC is unlikely to prosecute more than five to 10 defendants given its mandate and resource constraints. Afghan victims should continue to provide evidence and impact statements to the ICC to support its investigation and to hold those most responsible for atrocities accountable, but should also have clear expectations about the Court’s limitations in delivering justice.
Universal jurisdiction may provide an opportunity to hold perpetrators accountable, particularly given how many Afghans are currently living in the diaspora, and the United States should support such efforts through political and, where feasible, financial support. Universal jurisdiction cases are criminal prosecutions in states that have incorporated international crimes into their domestic law. They require that the defendant be physically present in the state’s territory.
Universal jurisdiction has been used to hold Syrian regime officials accountable for crimes committed in Syria. A German court recently convicted two former officials of Syrian President Bashar al-Assad’s security apparatus of war crimes for their role in torturing detainees — the first time regime officials have held formally accountable for such crimes. A similar strategy should be applied in Afghanistan, and several efforts are currently ongoing. Universal jurisdiction cases have been brought on behalf of Afghan victims of atrocity crimes in the Netherlands and Germany for abuses committed by officials prior to the Taliban’s rise to power in the 1990s. Germany has also pursued a case against a Taliban defendant, who is currently on trial for war crimes for his involvement in the murder of an Afghan police officer. While universal jurisdiction cases may not immediately address ongoing crimes committed by the Taliban, ISIS-K and other armed groups, these cases will set important precedents that perpetrators will be held accountable for their crimes, sending a message to Taliban leaders that they too may be held to account.
While the risks of mass atrocities in Afghanistan are high and the prospects for justice seem distant, responding to atrocities in Afghanistan is a moral and national security imperative for the United States and like-minded allies, particularly given the extent of U.S. engagement in Afghanistan since 2001. Actions taken now put pressure on the Taliban regime, provide moral support for victims, and increase the chances for accountability, breaking the cycle of impunity and establishing benchmarks for the Taliban for legitimacy and credibility in protecting civilians.