Afghanistan Analysts Network
In this his first report, UN Special Rapporteur Richard Bennett writes that the Taleban have “effective control over the country” and so, even though they are not recognised by the countries of the world, are “responsible for fulfilling the obligations arising out of the various international human rights and humanitarian treaties to which Afghanistan is a party.” He reports that in his meetings with the Taleban they said they were committed to Afghanistan’s international obligations and also that the great majority of international human rights norms were compatible with sharia. Even so, Bennett finds much to say about breaches of these obligations.
What is in the report
Most significant – presented first in his report – is what the Special Rapporteur calls “the staggering regression in women and girls’ enjoyment of civil, political, economic, social and cultural rights since the Taliban took power.” In no other country, he says, “have women and girls so rapidly disappeared from all spheres of public life, nor are they as disadvantaged in every aspect of their lives.”
He writes about the sending home of most civil servants and the “numerous evolving rules” affecting women and girls: the suspension of secondary education for girls, the stipulation that women should stay at home unless necessary, the ban on certain travel without a mahram (a close male relative) and mandatory dress codes. The closure of specialist courts for women, and the sacking of female judges, he said, has also “adversely affecting women’s access to justice,” while an order that the “male family members are punishable for women’s conduct,” is “effectively erasing women’s agency and prompting increased domestic abuse.” He points out that
With the exception of one decree issued on 28 December 2021 (forbidding forced marriage, declaring widows have inheritance rights and the right to a dowry in a new marriage, and asserting the de facto courts will consider applications involving women), these directives violate the rights of women and girls.
He stresses that Afghan women “have faced severe discrimination throughout history.” Even so, his comments paint a picture of women not only being stripped of many of their rights and freedoms by the Emirate but also the creation of an environment which facilitates abuse within the home. There has been a “collapse of mechanisms,” he said, “for victims to seek protection, support, and accountability.”
The second area of concern for the Special Rapporteur is Afghans’ “increasingly precarious” access to food and livelihoods which he puts down to “drought, rising commodities prices, reduced incomes, supply chain disruptions, decreased supplies caused by conflicts, including the war in Ukraine, and lack of donor support.” He notes that the government is “responsible for the realization of economic, social and cultural rights to the maximum of their available resources, including through domestic and international cooperation, under the ICCPR [International Covenant on Civil and Political Rights]. He calls for more transparency from the Emirate over its revenues and spending and “notes with concern” that “reportedly a lower proportion of budget is allocated to basic services compared to the proportion allocated for military and security purposes.”
However, Bennett also raises “serious questions” over how “the relevant international actors” are applying the humanitarian exemption to UN Security Council sanctions (signed off in December 2021) and how this “appears to contribute to the humanitarian crisis.” One of Bennett’s recommendations is that UN member states should “continue to provide assistance and cooperation to ensure adequate resources are made available to realise human rights, particularly rights to adequate food, safe drinking water, sanitation, health and education without discrimination.”
This wide-ranging first report also covers conflict-related human rights violations – the arbitrary arrest, extrajudicial killing and torture of civilians, some amounting to collective punishment – and reprisal killings of former government officials and members of the security forces, and people the government associates with the Islamic State Khorasan Province (ISKP) or the National Resistance Front (NRF).
In a section on ethnic and religious minorities, Bennett looks at the situation facing Hazaras and other ethnic and religious monitories in Afghanistan. Hazaras, who are largely Shia Muslims, he says, have been subjected to continuing sectarian attacks by the Islamic State Khorasan Province (ISKP) as well as what he calls “multiple forms of discrimination, affecting a broad-spectrum of human rights, including economic, social and cultural rights” by the state.
The Taliban have appointed Pashtuns to senior positions in government structures in Hazara dominated provinces, forcibly evicted Hazaras without adequate prior notice from their homes and imposed religious taxation contrary to Shia principles. There are reports of arbitrary arrests, torture and other ill-treatment, summary executions and enforced disappearances. In addition, an increase in inflammatory speech is being reported, both online and in some mosques during Friday prayers, including calling for Hazaras to be killed.
Some of these allegations apply far more widely: it is not just Hazaras who feel excluded from an administration made up overwhelmingly of male, Pashtun clerics and, as Bennett’s report makes clear elsewhere, Afghan citizens of all stripes have been subject to arbitrary arrest, torture, enforced disappearances and other violent abuses. At the same time, the Sunni Muslim nature of the Emirate makes it inherently exclusionary for Shia Muslims and non-Muslims, and any discrimination or abuses they suffer are felt against the background of what Bennett calls the “historical persecution of Hazaras and other minorities.”
Fundamental freedoms and access to justice
Towards the end of the report, Bennett assesses the threats to what he calls the ‘fundamental freedoms’ – the right to free speech and assembly, and notes the shrinking space for human rights defenders and civil society activists to operate in. He also points to serious flaws in the Taleban’s administration of justice. There is “uncertainty of the applicable laws and process,” he says, with cases “handled idiosyncratically across jurisdictions and venues.” Cases may be heard in the provincial and district courts, with all judges now having a religious rather than secular training, but in the provinces, officials who are not judges are also “empowered to administer justice.” Crimes such as theft or assault, he says, are often “dealt with by security forces without involving prosecutors or judges. In some provinces, more serious crimes may be tried without the assistance of either a prosecutor or a defence lawyer.”
Confusion over the law and who administers it facilitates wider abuses of human rights – as does curbing the freedom to speak and protest. For this reason maybe, Bennett’s first recommendations to the Taleban authorities are to do with the legal framework: restore the constitutional order; review the rules and directives issued since the takeover bringing them in line with international human rights standards; restore clarity and certainty of applicable laws, judicial independence and capacity; protect judges and lawyers, especially women, from reprisals.
What happens next?
Bennett is due to present his report at a session of the UN Human Rights Council on 12 September. While much of the report is addressed to the Taleban, he also has strong words for the international powers that supported the Republic for twenty years and which will be among those addressed at the Council:
The international community must acknowledge its own role and responsibility for the situation unfolding in Afghanistan today. While much was done in the past 20 years to strengthen institutions designed to promote and protect human rights and to ensure the enjoyment of those rights by the people of Afghanistan, reflection is needed on what more could have been done to prevent the human rights crisis and what should be done now to resolve it.
As to what happens next, Bennett says his first responsibility is “to report on the developing situation of human rights and to make recommendations to improve it” and this is the principal objective of his first report. He envisages undertaking research on thematic issues, working closely with other institutions, so that “the situation of Afghanistan continues to be kept high on political and human rights agendas.”
The UN does already have another entity on the ground working for human rights, UNAMA’s Human rights office (read its first report on human rights in Afghanistan after the Taleban capture of power here published in July 2022; AAN analysis here). It was established as part of UNAMA’s mandate from the UN Security Council and reports to the UN Secretary General and the Office of the High Commission for Human Rights (OHCHR). The Special Rapporteur position was created by the UN Human Rights Council and while it also has the support of OHCHR, it is independent. Bennett says he plans to “work with and complement other UN mechanisms, including UNAMA and UN agencies present in Afghanistan” and urges a strengthening of international support to UNAMA, “in particular its human rights service.”
Having two UN entities pushing for human rights in Afghanistan undoubtedly strengthens the cause. Additionally, Special Rapporteurs serve in a personal capacity, and do not receive salaries or any other financial compensation for their work. That means that Bennett with his independent voice can speak more freely.
He has also used his report to sow a seed for the idea that his mandate should be strengthened. In recommendation 99b he calls on UN member states to:
Take necessary measures to strengthen accountability for human rights violations and abuses, including through this mandate and others, including potential mechanisms to address impunity, provide redress for survivors and victims, and bring perpetrators to justice.
Behind the scenes in Geneva, there have been discussions about whether to strengthen the Rapporteur’s mandate, or create an additional mechanism with accountability powers. A group of NGOs released a joint letter on 9 September calling for the renewal of the Rapporteur’s mandate, agreeing that it should be strengthened, as well as calling for the creation of a stronger accountability mechanism, which would be able to investigate and gather evidence of crimes and perpetrators. What Bennett suggests here is that his mandate could be given similar powers, not least because, in his words, his mandate already has “an important accountability component” and that he “plans to take this forward.” At the same time, he says he is not opposing additional mechanisms, which he also makes reference to. It will be interesting to see how far the Human Rights Council is prepared to move. Clearly, given the scale of human rights violations, many human rights defenders argue that while the Rapporteur mechanism is a welcome addition, it is not sufficient, at least in its present form.
So far at least, the Taleban have facilitated Bennett’s work, meeting him at a senior level and providing him with access to some places of detention, education and medical treatment during his visit to Afghanistan in May. He was also able to meet representatives from civil society and minority communities in Afghanistan, as well as people with disabilities, children and members of women’s groups. Bennett believes there must be fundamental changes to the Taleban’s approach if Afghanistan is to stop “descending into authoritarianism.”
The Taliban still has an opportunity to redeem the situation, which requires a substantial change of approach. The Taliban must be more inclusive, respect women’s rights, accept diversity and differences of perspective, protect the population, renounce violence, acknowledge and address human rights abuses and violations, rebuild the rule of law including oversight institutions, and accept, demand and provide accountability. They must close the gap between their words and their deeds and will continue to be judged on the latter.
Thus far, the Taleban have proved fairly immune for calls to change what they see as their basic principles, for example policies on women and girls, or to address abuses they deny exist, for example extra-judicial killings and discrimination against ethnic or religious groups. Nevertheless, this is an administration conscious of how it is perceived by the wider world. It will be interesting to see if Bennett can get any more traction than donors, Afghanistan’s neighbours or Afghan civilians in pushing for change.
Finally, Bennett appears to see his role as looking to the past as well as the future, for example in this call:
The international community should pay particular attention to the calls from Afghans across all walks of life for accountability and justice, for concrete and effective challenges to the impunity pervasive in the country and to remedying the wrongs of the past to prevent their recurrence in the future.
Edited by Rachel Reid