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The Unwinnable War

November 14, 2022

By Laurel Miller

Foreign Affairs

November/December 2022 Issue

Book Review

The Fifth Act: America’s End in Afghanistan

By Elliot Ackerman

Penguin Press, 2022, 288 pp.

America’s Blind Spots in Afghanistan

In August 2021, Afghanistan was thrust back into the headlines. Taliban forces rapidly closed in on Kabul, and the United States began making its final military withdrawal. Suddenly, the world was confronted with images of desperate people squeezing their way into Kabul’s airport for a chance to flee. Almost overnight, nearly everything that the United States and its allies had accomplished in 20 years of fighting, spending, and building in Afghanistan disintegrated. For the one million or so Americans who had taken part in those failed endeavors, and for the millions of young Afghans who had grown up under a Western-backed democracy, flawed though it was, such losses were head spinning. With their livelihoods imperiled, and with many fearful for their lives, hundreds of thousands of Afghans sought to leave the country, posing a new challenge for withdrawing Western forces.

The United States didn’t expect to mount such a large evacuation, or at least not so quickly. Over ten days, the U.S. military and its allies airlifted about 120,000 people, including 80,000 Afghans, from Kabul, mostly to military bases in the Middle East, from where they eventually left for the United States and elsewhere. The effort was chaotic. For those without a U.S. passport or visa, often the only ticket out was a personal connection to someone who could pull strings with U.S. personnel on the ground. American veterans, former diplomats, aid workers, and journalists scrambled to find passage for vulnerable Afghans. Many Afghans who wanted to leave were turned away. Amid this crisis, many Americans who had served in Afghanistan were angry that the evacuation was so haphazard and left behind so many Afghans they believed to be at risk.

One of those Americans was Elliot Ackerman, who served in Afghanistan as a marine and later as an adviser to Afghan counterterrorism teams under a CIA-led program. In the final weeks before the U.S. withdrawal, he joined a series of impromptu efforts to help evacuate small groups of Afghans. Ackerman used his connections to the U.S. military and other agencies involved in the evacuation to help Afghans get into Kabul Airport and onto planes. In The Fifth Act, Ackerman describes these efforts, interweaving the account of the withdrawal with his combat experiences and views on what went wrong with the war.

For decades, U.S. veterans have written books that use their intimate experiences of war to challenge the prevailing wisdom of U.S. strategists and military planners in Washington. That is not the case with The Fifth Act. Paradoxically, in setting out to explore the missed opportunities of the U.S.- led war and the botched withdrawal, Ackerman ends up reflecting the same misguided mindset that drove the war’s architects. Looking at the conduct of the war through a narrow aperture, he focuses, as Washington did, largely on U.S. forces and U.S. policy; the politics, motivations, and experiences of Afghans are pushed offstage. In doing so, however, the book usefully, if inadvertently, reveals many blind spots that compromised Washington’s strategy.

CURTAINS UP

Ackerman’s book is divided into five parts, or “acts” (hence the title), and the drama proceeds by combining a number of disparate narrative strands. The most resonant one centers on Ackerman’s combat experience and describes two missions in which he participated as a Marine Special Operations team leader in 2008. In each mission, one of his comrades was tragically killed. This narrative intends to convey the importance of the “leave no one behind” ethos in the U.S. military, a theme that resurfaces in the evacuation narrative.

In the aftermath of a mission gone wrong, Ackerman is particularly haunted by having had inadequate personnel and equipment left to retrieve the body of one of his men. He decides to defer the task to another unit of marines, in the interest of protecting the lives of others under his command, but he writes that “a measure of guilt settled its weight on me.” More than a dozen years later, he still carries the weight of regret about this decision. Ackerman’s prose successfully transports the reader to the battlefield and into the midst of ambiguities facing young combatants required to make life-and-death decisions. He writes lovingly of his comrades, bringing them to life and heightening the poignancy of the stories he tells.

But that message about military valor is overshadowed by the powerful illustration he provides of wasted life. One of the missions on which one of Ackerman’s comrades died achieved no apparent military objectives. Ackerman notes that the team did not find the Taliban forces they were looking for, leaving readers with a sense of the counterinsurgency’s futility.

Yet, Ackerman’s war-fighting narrative fails to address why the United States lost. Ackerman skates over crucial problems with how the U.S. military carried out the war. For instance, in describing his work as a CIA paramilitary operator, during which he advised an Afghan counterterrorism unit established and funded by the agency, he does not seem to recognize that these teams were a double-edged sword. He celebrates their tactical successes, such as when they kill or capture enemy targets. But he ignores the mountain of evidence that their routine night raids on villages, including ones in which he took part, fomented bitterness toward foreign militaries and undermined the Afghan government’s ability to build popular support.

The real story is not only one of U.S. failure but of Taliban success.

Consider also an operation that Ackerman describes that took place in the Zerkoh Valley in Herat Province in 2008, when he was a marine. He briefly notes that a U.S. general had to pressure Afghan President Hamid Karzai to green-light the operation because Karzai had concerns about civilian casualties. He also dismissively refers to the “tribal politics that had allowed Zerkoh Valley to become a Taliban sanctuary.” But Ackerman leaves out the fact that a year earlier, U.S. airstrikes in the same area killed dozens of civilians, causing local outrage and demonstrations against the government. (Although the United States never made an accounting of the casualties, the Afghan government claimed that 42 had been killed, and Human Rights Watch reported at least 25 deaths.) Karzai’s concerns were justified, and no Afghan leader could simply brush aside tribal politics as Ackerman seems to propose.

In recounting another 2008 operation, this time in Farah Province, Ackerman refers to “a turbaned man and his family who we’d turned out of their home.” The man shouted at the marines searching his home each time he heard “the sound of an item crashing to the floor.” Ackerman misses a chance to discuss the corrosive effect of foreign invaders repeatedly harassing Afghan civilians—a mistake that U.S. policymakers and Pentagon planners made, as well.

The Fifth Act mirrors another flaw in the thinking of strategists in Washington about what U.S. forces could achieve in Afghanistan. Ackerman advised a large group of Afghan commandos as well as CIA-led counterterrorism units. Yet these men are no more than bit players in his story. Repeatedly, Ackerman refers to “our war,” “my war,” “us,” and “our Afghan tragedy.” In doing so, he calls to mind the habit of U.S. policymakers to see themselves as the primary protagonists of the war and to perceive the conflict in Afghanistan as an American initiative built around the United States bending Afghans to its will, rather than as one in which the actions and motivations of Afghans on both sides would hold ultimate sway.

In the face of the Taliban’s rapid reconquest of the country in 2021, Ackerman seems baffled by the “bitter” and “humiliating” defeat by a far inferior force. But he looks for answers only in U.S. policy errors and, to a lesser extent, in the failings of the U.S.-backed Afghan government. The Taliban, an enemy poorly understood by the United States, are largely missing from his picture. Ackerman tries to explain why the United States lost, yet he overlooks half the equation. The real story is not only one of U.S. failure but of Taliban success, owing to strong motivation, organizational resilience, and support from outside the country, particularly Pakistan.

BLAME GAME

Ackerman is least persuasive when he strays from his own memories of combat in Afghanistan. When the book comments on policy and politics, it offers no basis for its reasoning besides Ackerman’s personal experience. Ackerman leans heavily on the idea that the United States lost the war because “we never understood what winning meant.” But he never makes clear what, in his own view, “winning” meant.

A better explanation for Washington’s failures in Afghanistan is that the United States should have focused from the outset on how to end the war, not how to win it. That might have meant seeking to prevent an insurgency from gaining traction in the first place by including the Taliban early on as minority stakeholders in the post-2001 government. Or it could have meant negotiating seriously with the Taliban at the height of U.S. power, around 2011, rather than waiting to do so until 2019, at which point U.S. influence in the country was approaching its nadir and U.S. leaders had made clear their intention to pull out. Quiet negotiations with the insurgents began in 2009 but proceeded in fits and starts and lacked strong political commitment from Washington until it was too late.

In February 2020, the United States struck a deal with the Taliban that included a timeline for withdrawal. Ackerman blames the agreement for having “fatally delegitimized President [Ashraf ] Ghani and his central government.” That agreement was flawed and probably accelerated the government’s downfall. But it was far from a primary cause of the collapse. For all its problems, the deal should be credited as an effort to salvage the possibility of intra-Afghan peacemaking and for ensuring that the United States could withdraw without a fight. The agreement must be judged against the backdrop of President Donald Trump’s decision to pull out U.S. forces from the country. There is little evidence to suggest that the brittle Afghan government would have remained intact had the United States withdrawn without a deal.

Ackerman joins a sizable camp of critics who have blamed the United States for not being committed enough to fighting the war. But he fails to explain what being committed enough would have looked like, beyond creating an impression that the U.S. military would remain in the fight indefinitely. What should the United States have done that it had not already done—and for how much longer? Ackerman does not say.

Ackerman decries the lack of a “social construct to sustain” the war, by which he means a war tax or draft that would have, in his view, entailed greater buy-in from the American public. But he leaves unclear how such steps would have helped and ignores their political implausibility. At the same time, he implies that the United States should have rationalized keeping troops in Afghanistan, instead of pulling out, by claiming they were not “at war,” such as the United States has done in Syria and parts of Africa. But it strains credulity to suggest that even keeping a relatively small number of U.S. troops in the country indefinitely would have meant that there was anything other than a war going on: in 2021 alone, there were over 35,000 war-related deaths in Afghanistan. What is more, to suggest that U.S. officials should have downplayed the war sits uneasily with Ackerman’s contention that they also should have encouraged ordinary Americans to personally invest in it more.

THE DENOUEMENT

Ackerman played a laudable role in helping Afghans escape their country as the Taliban advanced on Kabul in August 2021. And his depiction of the evacuation as chaotic is undeniably true. But his vantage point, from thousands of miles away, could offer only a limited view. He weaves descriptions of text messages, emails, and phone calls about evacuating Afghans with vignettes from his family vacation in Italy, which happened at the same time, a juxtaposition that is hardly illuminating.

Ackerman provides limited portraits of the Afghan evacuees he assisted; as he notes, he didn’t know most of them. His efforts to aid strangers in need were admirable. But the lack of a personal connection means that readers who want a rich account of the final days of the U.S. war in Afghanistan—including the experience of the Afghans whose lives were turned upside down—will need to look elsewhere.

Despite the book’s subtitle, its focus is not the end of the U.S. war in Afghanistan. Ackerman was not there during the withdrawal, and he does not suggest that he has closely studied the denouement. Nonetheless, he regards the timing of the withdrawal as arbitrary and its handling as a betrayal. He proposes that the United States should have extracted more Afghans, and sooner. But nothing would have precipitated widespread panic and the collapse of the Afghan government with greater certainty than the United States evacuating hundreds of thousands of Afghans well in advance of the withdrawal date—whenever that date was set to be. And it is doubtful that a more deliberate evacuation, rather than a quick and reactive one, could have been sustained with less chaos as the government crumbled and the Taliban rolled into Kabul.

Ackerman’s position presupposes that the United States should have risked this highly probable sequence of events. But Ackerman, like many critics of the withdrawal process, fails to acknowledge the dilemma that U.S. policymakers faced. It is undeniable that aspects of the emergency evacuation could have benefited from advance planning. For example, the U.S. government could have processed more Special Immigrant Visas, for which Afghans who worked for the United States are allowed to apply. But the notion that a massive evacuation could have been carried out well ahead of the August 31 deadline without turmoil is fanciful. Furthermore, since the withdrawal, the United States and private groups have arranged for passage out of the country for thousands more Afghans, including many who were vulnerable or who had worked with U.S. forces.

NO WAY OUT

In the final years of the war, it became clear that Washington’s choice in Afghanistan was between losing quickly or losing slowly. When U.S. President Joe Biden decided in April 2021 to completely pull out, he chose to lose fast, though how fast was uncertain. Ackerman claims that “the Afghan government had fought the Taliban to a stalemate when President Biden announced his withdrawal.” This is false; in fact, the Taliban had been gaining ground for years, especially since the United States began to draw down its forces after 2014. After that point, some U.S. officials called the situation an “eroding stalemate”—an oxymoron. Moreover, Ghani’s domestic legitimacy and grip on the political system had become shaky, and he remained dependent on foreign aid and military support.

Once Biden decided to withdraw, there were two plausible outcomes to the war that might have taken hold. In the first scenario, the Taliban would gain ground, sparking a protracted battle to control cities, which would possibly have devolved into a multifactional civil war. In the second scenario, which is the one that materialized, the withdrawal would provoke a crisis of confidence among Afghans, leading to a rapid collapse of their government and security forces. It would have been difficult for the United States to predict the likelihood of the second scenario because it depended on accurately evaluating how a vast number of Afghans would feel about continuing their fight—a measurement the U.S. had little capability to make.

There was always a risk that the chaos that blighted the denouement would have occurred in any withdrawal. Some critiques of how the Biden administration handled the pullout, including several leveled by Ackerman, are fair. But by dwelling so much on what happened during 15 days in 2021, his book implies that the principal failures had to do with how the United States got out of Afghanistan, rather than how it got in—and what it did while it was there. What the final days show most of all is the hollowness of the Afghan government and the security institutions that the United States tried so hard to build over two decades. If the story that Americans come to tell themselves about the Afghan war focuses not on those realities but on the organization and timing of the U.S. exit, it will distract them from the war’s most important lessons: there is a limit to what American money and willpower can achieve, and the best way to avoid having to get out of an unwinnable war is to avoid getting into one.

  • LAUREL MILLER is Director of the Asia Program at the International Crisis Group. From 2013 to 2017, she served as Deputy and then Acting Special Representative for Afghanistan and Pakistan at the U.S. Department of State.
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ICC Afghanistan Investigation Re-Authorised: But, will it cover the CIA, ISKP and the forces of the Islamic Republic, as well as the Taleban?

November 13, 2022

Ehsan Qaane 

Afghanistan Analysts Network

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The judges of the International Criminal Court’s Pre-Trial Chamber II have ruled that the investigation into war crimes related to the conflict in Afghanistan – which was stalled for two and a half years – can be resumed. However, the authorisation relates to “all alleged crimes and actors that were subject to” a request made in 2017 by the court’s previous prosecutor, which the Appeals Chamber authorised in March 2020. The judges’ ruling limits the scope of the investigation to those prominently named in that 2017 request to investigate, ie the Taleban, the United States military, the CIA and the forces of the former Afghan government, and excludes the Islamic State in Khorasan Province (ISKP), which the request named only in passing. The judges also want March 2020 to be a cut-off point for the investigation. The current prosecutor has appealed these restrictions. However, he had previously said he wanted to ‘de-prioritise’ all actors, except the Taleban and ISKP, something the judges’ opposed. Although not all is yet clear on the way ahead, as AAN’s Ehsan Qaane explains, the most important issue, which has been in doubt for one reason or another for the last five years, has now been decided: there will be an ICC investigation. It is something which victims and survivors, whenever they have been consulted, have consistently demanded. 

The ICC’s Afghanistan war crimes investigation has been authorised by the court’s Pre-Trial Chamber. Photo: Ehsan Qaane

The resumption of the Afghanistan investigation was authorised by the three judges of the ICC Pre-Trial Chamber II (hereafter ‘the judges’) on 31 October 2022. This was needed because the former government had requested a deferral, saying war crimes were being investigated in domestic courts and there was no need for the ICC to be involved. Following the overthrow of the Republic, the current ICC prosecutor, Karim Khan, had argued that this deferral request should be set aside.

The latest ruling by the judges is their response to Khan’s request for a resumption of the investigation, made in September 2021. It has taken them 13 months to reach this decision. However, their ruling sets limits on the scope of any investigation to: 1) crimes allegedly committed by actors who were mentioned in the prosecution’s original 2017 request to launch an investigation; and 2) crimes committed only up to the time when the authorisation was finally granted in 2020. After eight days of silence, on 7 November 2022, Khan responded to this ruling. He announced his disagreement with the restrictions and launched an appeal, which the ICC’s Appeals Chamber will hear at some future date.

Despite all this, the judges’ 31 October ruling is a milestone in the court’s dealing with Afghanistan, which for a decade and a half has continued to take a long and winding course, with multiple setbacks, delays and periods of waiting for decisions:

2006 The Office of the Prosecutor of the ICC begins a preliminary examination of war crimes and crimes against humanity in Afghanistan (see AAN report).

2017 The then prosecutor, Fatou Bensouda, requests the judges of the Pre-Trial Chamber to authorise an investigation (see AAN report).

April 2019 The judges turn down her request (see AAN report).

September 2019 The prosecution appeals the April 2019 decision of the judges (see AAN report).

March 2020 An appeal ruling finds in favour of the prosecution and an investigation is launched (see AAN report).

March 2020 The former government blocks the investigation by requesting a deferral, arguing that the alleged crimes were already being investigated domestically (see AAN report).

27 September 2021 New prosecutor Karim Khan requests the judges to reject Afghanistan’s deferral request and resume its investigation, but with a narrower focus than Bensouda had asked for – just the Taleban and ISKP – and for other actors (the CIA and US military and the Republic’s armed forces and intelligence agency) to be ‘de-prioritised’ (see AAN report).

31 October 2022 The judges grant Khan’s request, but stress the investigation should be according to the 2017 request.

7 November 2022 The prosecution appeals paragraph 59 of the judges’ decision which limited the scope of the investigation.

This report will first look at the bases for the judges’ decision to re-authorise the investigation, then look at two questions about the scope of the investigation into war crimes related to Afghanistan. First, will it include the CIA, US military and forces of the Islamic Republic, as well as the Taleban? Second, will it include the ISKP and alleged crimes in the post-March 2020 period? Finally, we conclude by looking at what happens next.

How the judges argued that the investigation should be resumed

The judges were asked to rule on how to respond to the deferral request of the old government and the prosecutor’s 27 September 2021 request to reject it and authorise the resumption of the investigation. They provided three arguments for authorising the reopening of the investigation:

  • “Afghanistan is not presently carrying out genuine investigations” of war crimes and crimes against humanity coming under ICC jurisdiction. 

In his September 2021 request, ICC Chief Prosecutor Karim Khan said his office was in possession of “undisputed facts” demonstrating that since the fall of the Republic, neither the Taleban as the de facto rulers of Afghanistan nor the fallen Republic whose diplomats still represent Afghanistan abroad were investigating the alleged crimes. The judges of the Pre-Trial Chamber echoed Khan in their ruling: the laws and mechanisms established by the Republic for domestic investigation were abolished after the Taleban takeover.

  • Afghanistan “has not acted in a manner that shows an interest in pursuing the Deferral Request.” [1]

Afghanistan could have challenged the ICC prosecutor’s request since its submission in September 2021 to cancel its request to defer the ICC investigation. Indeed, said the judges, it had been provided “ample opportunity,” through all possible legal means, to share its “observations.” [2]

However, the judges said neither the Taleban nor the diplomats of the fallen Republic had opposed the prosecution’s request. Three times, the judges said they had invited a response and there had been nothing but silence from the Taleban and ambiguity from the Republic’s diplomats. The two diplomats who had reacted, the judges said, had neither clearly opposed nor supported the prosecution’s request. That could have been because of their lack of decision-making power; the Afghan ambassador to the Netherlands, who is also the Afghanistan permanent representative to the ICC, wrote to the judges in March 2022 that he was “unable to provide any further observations or submissions” due to “security and political developments” in Afghanistan since the fall of the Republic. [3]

As for the Taleban, it could be said that there was no guarantee they would have been listened to even if they had opposed the reopening of the investigation due to their lack of international recognition.[4] (AAN has reported in detail about the judges’ failed attempts to seek ‘Afghanistan’s’ views).

  • The information and supporting documents provided by the Republic in its deferral request, in themselves, “cannot lead to a finding that the ICC investigation must be deferred.” 

In March 2020, the Republic had said it was able and willing to investigate war crimes domestically and so there was no need for an ICC investigation. Thus, the investigation had been put on hold until either Afghanistan proved its claim by providing tangible and detailed evidence of its investigations or the ICC prosecution proved otherwise.

After assessing 1455 documents submitted by the Republic concerning 518 cases which it claimed were evidence of domestic proceedings, the judges found that only 67 cases were “substantiated and relevant” and could be overlapped with the ICC’s investigatory scope. All “concern[ed] (alleged) members of the Taliban.” Of these, “only 11” were of “mid- or top-level perpetrators.” The Republic, the judges said, had not “adequately substantiated its Deferral Request” and had failed “to provide sufficient documentation demonstrating active and ongoing investigations or prosecutions.”

AAN has argued that the main aim of the Republic’s deferral request was to block the investigation and that it had never been serious about investigating war crimes itself.

The scope of the ICC’s investigation 1: the CIA, US military, the forces of the Republic

One of the key questions for AAN and others was whether the judges would agree with Prosecutor Khan’s contention that the ICC’s investigation should be limited to only the Taleban and ISKP, or also include the CIA and US military and the former government’s forces, as his predecessor Fatou Bensouda had requested in 2017. Khan contended in September 2021 that if an authorisation was granted, he wanted to ‘de-prioritise’ some aspects of the investigation because of the limited resources available to his office. In an online meeting with human rights activists, at which the author was present, in November 2021, Khan did subsequently say that de-prioritisation did not mean no investigation, but still, it was difficult to envisage other actors becoming the focus of the court in the distant future.

The author reads the judges’ 31 October decision as a signal to the prosecutor that he should not de-prioritise investigations into the personnel of the US or the Republic, which were authorised in 2020. They did indicate that the prosecutor was not under any obligation from them to pursue either a narrower or a broader investigation, [5] but they did highlight the concerns of “certain victims” who “fear that this focus may result in the Prosecution overlooking crimes allegedly committed by others, including members of armed forces or security and intelligence services of non-State Parties (to the ICC like the US).”

The judges here might be indirectly reminding the prosecutor of his obligation to fulfil “the interests of justice” which would be achieved, among other ways, by fulfilling the interest of all victims. The court collected their views twice, from 11,150 individual victims and 130 families from 8 November 2021 to April 2022 and 6,220 individual victims and 1,690 families from November 2017 to January 2018. On both occasions, the vast majority wanted the ICC to investigate (see AAN report on the first round). The legal representatives of some victims also made representations following Khan’s request to de-prioritise some investigations. For example, lawyers for three men allegedly held by the CIA said in a response published on 7 October 2021:

The gravity of the crimes which took place within the secret CIA detention facilities in Afghanistan, Poland, Lithuania, Romania and other countries, including by nationals of States Parties, as well as the manifestly ineffective nature of national proceedings, call into question the Prosecutor’s deprioritisation of those crimes. These factors rather justify the Prosecutor’s focus on and prioritisation of investigation of these grave and widescale crimes. 

Katherine Gallagher of the Centre for Constitutional Rights, who represents two alleged victims of torture by the CIA at its black site rendition facilities, also said in September 2021 that Khan’s proposed narrowing of the investigation would be “a real problem both because it undermines investigations and because it’s a backdoor way for member states to control the court through the budget.”

At the time, AAN expressed concern that Khan’s request created a ‘hierarchy of victims’, while Human Rights Watch pointed to “double standards” and Amnesty International said his strategy risked the legitimacy of the whole ICC:

In his stated approach, Prosecutor Khan appears willing to bow to political as well as resource pressure, applied by powerful states, whose actions would restrict the activities of a ‘universal’ ICC which may investigate situations where their nationals and interests are affected. 

We recall that, until April this year [2021], US government sanctions were applied on Former Prosecutor Fatou Bensouda and other [Office of the Prosecutor] staff with the overt intention of halting investigations into US nationals – despite the Court having clear territorial jurisdiction to do so. Having faced-down the US government’s egregious attacks, that the Prosecutor would take a decision which aligns with the objectives of those who had sought to infringe his Office’s hard-fought independence, is almost unfathomable. 

Whatever the reason for the judges’ message that Khan should include all actors mentioned in the 2017 request in his investigation, those concerned about universal human rights will welcome their stance.

The scope of the ICC’s investigation 2: ISKP and post-March 2020 war crimes

The judges, in paragraph 59 of their decision, reminded the prosecutor that, in their view, the authorisation to investigate covers:

[O]nly the crimes falling with the situation and the conflict, as it existed at the time of the decision authorising the investigation [2020] and based on the request to open it, can be the object of this investigation. Alleged crimes unrelated to such situation and conflicts or related to any new armed conflict(s)… and new parties to such a conflict, fall outside the scope of the investigation as authorised…

In this paragraph, the judges footnoted their reference to “new parties”:

Compare, e.g., the Prosecutor’s reference to the ‘Islamic State – Khorasan Province’ in his 27 September 2021 press statement.

To investigate any alleged crimes and actors as well as new crimes related to new conflicts [6] which they believe fall outside the scope of the investigation, the judges suggested the prosecutor file a new request for authorisation.

In Khan’s appeal, the prosecutor seems to understand from the judges’ argument in paragraph 59 and the related footnote that they see ISKP [7] as a ‘new actor’ and also that any alleged crimes which have been perpetrated since March 2020 as “unrelated” to the authorisation and therefore as falling outside the investigation. Khan argues that such a restriction was an error in law, and an error in fact, and as contradicting the April 2020 appeal judgement which had granted authorisation. Thus, the prosecution has requested the Appeals Chamber “to reverse and amend paragraph 59 of the Decision and to confirm the scope of the Court’s jurisdiction in this situation in the terms previously articulated by the Appeals Chamber.” The prosecutor said his appeal would not affect the resumption of his investigation into those alleged crimes which the judges’ 31 October decision has permitted.

According to Khan, paragraph 59 of the 31 October authorisation was an error in law because it violated the Appeals Chamber’s 2020 judgement, which said the scope of the investigation was not limited to the incidents provided by the prosecution in its 2017 request for authorisation. Also, the 2020 appeal judgement set no temporal limitation except the one mentioned in the prosecution’s 2017 request, which mandated the beginning of the investigation period as 1 May 2003, the date when Afghanistan became a state party to the Rome Statute, for alleged crimes that took place on Afghan soil and 1 July 2002 for alleged crimes that happened on the territory of other states parties to the ICC which were related to the Afghanistan armed conflict, ie those hosting CIA detention facilities related to the Afghanistan conflict, Poland, Lithuania and Romania.

The judges’ April 2019 decision not only rejected outright the prosecution’s 2017 request to launch an investigation – based on what was found to be an erroneous calculation that an investigation would be against the ‘interests of justice’ – but also set a standard for the scope of any investigation in the following paragraph, in which the judges said they were:

[D]uty-bound to determine in concrete terms whether the investigation of the specific incidents for which the authorisation is sought, and those which are closely linked to the former, must be allowed. Accordingly, the scope of the scrutiny could not encompass incidents and groups of offenders other than those for which the authorisation was specifically requested. Quite logically, the same applies for other alleged crimes that may have occurred after the date of the Request.

However, when the Appeals Chamber overturned the judges’ decision in 2020, they found that the judges’ ruling that any investigation should be restricted was an error in law and unnecessary, as it would impact the “truth-seeking function” of prosecution.

[T]he Appeals Chamber considers that restricting the authorised investigation to the factual information obtained during the preliminary examination would erroneously inhibit the Prosecutor’s truth-seeking function. Such a restriction is also unnecessary to fulfil the purpose of article 15(4) of the Statute in ensuring that the Prosecutor does not embark on a frivolous or politically motivated investigation in that she remains restricted in her investigation to the contours of the situation authorised by the pre-trial chamber. Therefore, the Appeals Chamber considers that authorisation for an investigation should not be restricted to the incidents specifically mentioned in the Prosecutor’s Request and incidents that are ‘closely linked’ to those incidents in the manner described by the Pre-Trial Chamber.

In other words, both prosecutors and the Appeals Chamber have held the view that the judges’ attempt in 2019 to restrict the scope of any investigation was not in accordance with the provision of articles 42, 54 and 58 of the Rome Statute, the ICC founding document, which ensures for independent and objective investigations and prosecutions by the Office of the Prosecutor of the ICC.

Furthermore, according to Prosecutor Khan’s current appeal, paragraph 59 of the judges’ 31 October decision, when it referred specifically to the ISKP as a ‘new actor’ to the conflict, was an error in fact. He said this was a “misreading” of the 2017 request. In that request, he said, it was “expressly clarified that the scope of the investigation included both subsequent crimes and crimes committed by the group known as ‘Islamic State-Khorasan province’, among other groups.” [8] In other words, although the main emphasis was on the Taleban and Haqqani network, the US CIA and military and the forces of the then government, ISKP was also mentioned. It cannot be considered a new actor, therefore.

As explained above, this disagreement over the scope of any investigation is an old fight between the prosecutors and the judges. However, the Appeals Chamber decided in favour of the prosecution in March 2020. Knowing that, it is odd that the judges have yet again brought up an old dispute that had been resolved two and a half years ago.

By appealing paragraph 59 of the judges’ decision, Khan is attempting to regain the prosecutor’s investigatory power over alleged crimes that have occurred – and will occur – since the ratification of the Rome Statute by Afghanistan. They include alleged war crimes reported during the Taleban takeover of power in August 2021 and since. (See Human Rights Watch report and Amnesty International report as examples). It also intended to be able to investigate all alleged actors, including ISKP which has claimed responsibility for many grave crimes, including those the Hazaras and Sikhs (see this AAN report, Human Rights Watch report and the UN Special Rapporteur on Human Rights Situation in Afghanistan’s first report for examples).

What happens next?

The ICC prosecutor has appealed the part of the judges’ decision which says no authorisation to investigate crimes allegedly perpetrated since March 2020 and/or by ‘new actors’ like ISKP which the judges assert were not named in the 2017 request of the prosecution, although the prosecutor contends this. When the appeal hearing will happen has not been publicly announced yet. However, in light of the March 2020 Appeals Chamber decision, the result of the prosecution’s appeal is foreseeable. The Appeals Chamber articulated then that the prosecution’s investigation should not be restricted to the incidents and alleged perpetrators which were prominent in the prosecution’s 2017 request for authorisation to investigate. On the basis of that decision, it is the author’s understanding that to investigate any new conduct and/or actor should not require a new request of authorisation.

For the next couple of weeks, the judges’ decision of 31 October is anyway preliminary: under article 18 (2) of the Rome Statute, Afghanistan has a month to challenge it. The Afghan embassy in the Netherlands, as the agreed-upon diplomatic channel between Afghanistan and the ICC, was notified of the judges’ decision on 31 October 2022. Asked by AAN about his intentions, ambassador Muhammad Asif Rahimi said on 2 November 2022 that the embassy had always supported justice, reparation for victims and prevention of atrocities and he hoped the ICC would be able to satisfy Afghan war victims and the Afghan nation with its impartial and holistic efforts. He confirmed that the embassy would not take any further action instead would wait for the positive efforts of the ICC and its prosecution.

The Taleban have not reacted to the ICC decision, as yet. Even if they did respond, it is not clear how their action would be received, legally, by the ICC as they have not been internationally recognised as Afghanistan’s government. Article 19 of the Rome Statue provides “Afghanistan’ with the right to challenge specific cases during the investigation, as was mentioned by the judges in their decision.

After that, even as the appeal request proceeds, the prosecutor can resume his investigation of the crimes allegedly perpetrated up to March 2020 by four main actors, namely the Taleban, the Haqqani network, the US military and CIA, and the forces of the Republic, which the judges have authorised. Karim Khan could still go with his de-prioritisation investigatory strategy, however. The judges’ emphasis on not de-prioritising the aspects of the investigation, which cover the allegations against members of the US military and CIA members of the former government’s security forces, has no legal implications for the prosecution.

How the prosecutor pursues his investigation has yet to be publicly shared. With an unrecognised, de facto government in power which is one of the main alleged groups, it looks unlikely that the prosecutor would be able to open an office on the ground. Investigating incidents with no on-the-ground access would be difficult. However, this aspect of the investigation was always going to be complicated, even during the Republic, which always publicly acknowledged its support to the ICC, while trying not to give any actual support, and when there was also a widescale and ongoing armed conflict. However, there are enough alleged victims living outside Afghanistan, some already with lawyers and detailed evidence, that an investigation should still absolutely be possible.

Edited by Kate Clark

References

References
↑1 The judges said: In light of the foregoing, the Chamber considers that Afghanistan is not presently carrying out genuine investigations and that it has not acted in a manner that shows an interest in pursuing the Deferral Request. The limited number of cases and individuals prosecuted by Afghanistan, as shown by the materials submitted and assessable by the Chamber, cannot lead to a finding that the ICC investigation must be deferred. The Chamber therefore grants the Prosecution’s Application and authorises the resumption of the investigation in the Afghanistan Situation.
↑2 To make their decision on whether to authorise the investigation, the judges had an obligation to seek Afghanistan’s view about the prosecution’s request.
↑3 Afghanistan’s permanent representative to the United Nations in New York told AAN that in May 2022, that the judges had contacted him and he had advised them to contact the Afghan Embassy in the Netherlands – which is the agreed-upon channel for communications between Afghanistan and the ICC.
↑4 Since 15 August 2021, Afghanistan has been ruled by the Taleban, who came to power by force and have not been internationally recognised, while the country is presented abroad by the diplomats appointed by the fallen Republic. It is not clear, therefore, who should or could speak for Afghanistan in dealing with the ICC.
↑5 The judges said that “the legal framework does not envisage their undertaking a judicial review of the Prosecution’s conclusion,” and that “… the Prosecution’s Application does not contain any fact or circumstances that might justify or explain narrowing the scope of the investigation as authorised by the Appeals Chamber, nor does it specify why the Prosecution does not intend to pursue the investigation in its entirety.”
↑6 One issue which might become relevant is whether any war crimes committed in the context of the ongoing conflict between the Taleban and the National Resistance Front (NRF) or any other armed opposition group which emerges could be covered by the current investigation. Is it the same conflict, already falling under the current authorisation, or a new one?
↑7 The main alleged perpetrators include the Taleban, the Haqqani Network, the Afghanistan national security forces (Directorate for National Security, National Police, Local Police, National Army of the fallen Republic regime), as well as the members of the US armed forces and members of its CIA. Other groups like Islamic State for Khorasan Province (ISKP), Lashkar-e Taiba and Tehrik-e Taleban Pakistan, which their conduct had not been addressed in the 2017 application, were also named as alleged perpetrators.
↑8 The 7 November 2022 appeal referred to paragraph 38 of the 2017 request to back up its argument: 

In any event, the above considerations do not alter the Prosecution’s conclusion that an investigation into the situation in Afghanistan is warranted. Indeed, should the Pre-Trial Chamber’s decide to authorise an investigation under article 15(4), this should not limit the Prosecution’s investigation into only the specific crimes set out in this Request; rather, the Prosecution should be able to conduct an investigation into any other alleged crimes that fall within the scope of the authorised situation. In particular, the situation in Afghanistan is one in which crimes allegedly continue to be committed on a near daily basis, by a wide range of armed actors, including some newly emerging entities, both in support of and against the Government. Accordingly, if an investigation is authorised, the Prosecution should be permitted to expand or modify its investigation with respect to the acts identified in this Request or other alleged acts, incidents, groups or persons and/or to adopt different legal qualifications, so long as the cases brought forward for prosecution are sufficiently linked to the authorised situation.

ICC Afghanistan Investigation Re-Authorised: But, will it cover the CIA, ISKP and the forces of the Islamic Republic, as well as the Taleban?
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When I set foot inside the MCG, I felt a joy myself and other Afghan refugees won’t forget

November 13, 2022

The Guardian
10 Nov 2022

I will never forget seeing our world-class players on the international stage after all Afghanistan has been through

Mohammad Nabi of Afghanistan takes photos with fans at Melbourne Cricket Ground
Mohammad Nabi of Afghanistan takes photos with fans at Melbourne Cricket Ground. Photograph: James Ross

Sitting inside the magnificent arena, I felt every moment of the experience. The joy of seeing my team up close lifted the gloom that I and other Afghan refugees had been feeling, bringing us, momentarily, back to life. I’ve never seen a single resettlement program deliver such joy and sense of belonging, and it made me desperately want to see more of it in the coming days as our team battles for survival – just like us refugees.

I hardly cared about the weather, which was a typical Melbourne day with the sun playing hide and seek with the clouds before the rain washed away the entire game. What meant most to me was seeing our world-class players on the international stage after all our country had been through. They brought with them a connection to the land that we were forced to flee when the Taliban took over last year. Many of us still remain torn apart from our families, who are waiting, anxiously, for visas.

The wait for the game began many days earlier. My housemates and I had gone on a hunt for T-shirts, flags and any other Afghan paraphernalia. We had very little success, apart from securing a few T-shirts from an eager online seller. The most important purchase was a tricolour flag. I know it sounds ultra nationalist, but, take it from me, it meant so much for the millions of Afghans watching the live broadcast around the world to see it hoisted high in the MCG in Australia, while it remained banned in Afghanistan under the Taliban. This was so much more than just a cricket match.

Keen on holding it high enough to grab the attention of the cameras, my housemate bought a large plastic pole, only to have to surrender it to security at the entrance. Before that, we threw a ball in Yarra Park to Afghan music as streams of colourfully dressed new Melburnians from various directions gathered around the gates.

Wearing the national T-shirts and carrying the flags, we got plenty of surprised glares on our way into the city from the south-eastern suburbs. A curious man had a nice chat with me and admired what an excellent player Rashid Khan is. Two young women on the train were surprised by the blue colour of the Afghanistan team’s jersey, which contrasted the green, red and black of the national flag.

I was constantly posting photos to social media, as well as texting and calling people, urging them to tune in so as not to miss this once-in-a-lifetime opportunity. On the walk to the stadium from Richmond train station, we got many return calls from friends who we hadn’t heard from in months.

Once inside the venue, the view of the world’s biggest cricket ground under the floodlights was mesmerising. We grabbed some local coffee and quickly found our seats.

I have never seen young Afghan men, women and children so happy since arriving in Australia. It made us miss our loved ones back home. Eventually the rain burst in and the covers were brought over to protect the pitch. We turned that into an opportunity to explore the MCG as it wasn’t fully booked and there were no restrictions to move around. What a wonderful place this is, I thought to myself.

The rain paused. The boys in blue came out on to the field. Afghanistan was supposed to play against the favourite, New Zealand. The greats, Rashid Khan and Mohammad Nabi, were warming up alongside emerging talents like Rahmanullah Gurbaz, Ibrahim Zadran and Fazalhaq Farooqi. But then the rain came again and never stopped. The match was eventually abandoned.

Caught between a mix of joy and sadness, we decided to count our blessings. We headed back home, leaving the Afghan cricketers to battle with the thundering skies.

  • Shadi Khan Saif is an Afghan journalist based in Melbourne
When I set foot inside the MCG, I felt a joy myself and other Afghan refugees won’t forget
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Stability in Afghanistan: Prioritize human rights and women’s rights

November 9, 2022

Opinion by Fawzia Koofi

Opinion contributor 
The Hill
9 Nov 2022

I was recently jolted awake at 3 a.m. by a call. As I answered the phone, at first all I could hear was girls screaming in terror and sharp banging on a metal door. Seconds that felt like hours passed before I heard the trembling voice of a teenage girl on the line. “Help us Ms. Koofi, please help us! We are locked inside our dorms by the Taliban, they are going to kill us,” she told me.

Stability in Afghanistan: Prioritize human rights and women’s rights

Stability in Afghanistan: Prioritize human rights and women’s rights© Provided by The Hill

The caller was among 10 or so teenage girls from Afghanistan’s northern city of Mazar-i Sharif whom the Taliban held in their dorms to prevent them from protesting. The protests of these girls represented an existential threat to the Taliban.

From thousands of miles away in Washington, D.C., I tried to comfort the girls by promising them that I would not let their suffering, which is the reality for countless women and girls across Afghanistan, go unheard. With a heavy heart, I hung up the phone. I tweeted about these girls and their terrifying experience. I then reached out to my contacts inside Afghanistan and nearby countries, seeking help to try and save these brave yet petrified girls.

The Taliban finally agreed to release the girls from captivity after videos of their treatment circulated on social media. I was relieved to see them released, yet the horror that these teenage girls went through that day provides only a small glimpse into the tragic saga of the fearless girls and women of Afghanistan who are languishing under Taliban’s gender apartheid regime.

Since returning to power last August, Taliban leaders have issued more than 30 edicts banning, banishing, sanctioning, and restricting girls and women in Afghanistan from life, liberty and the pursuit of their hopes and dreams. Although the Taliban’s ban prohibiting teenage girls from going to school seems to occasionally make the international news these days, the tragic and painful reality of Afghan women’s lives under Taliban is far more horrific. The Taliban have created an ecosystem of violence aimed at strengthening their gender apartheid regime to eliminate women and girls from all realms of public life. The ban on girls’ education is only one element of this.

I know this from personal experience. In 1996, I had just enrolled in medical school with high hopes of becoming a doctor. That same year the Taliban took over Kabul, banning me and millions of other girls across Afghanistan from education, employment and personal freedom. The Taliban’s first regime lasted five years before it was ousted following the Sept. 11 attacks, but it took me more than 20 years to readjust and recover.

After Taliban’s ouster in 2001, I enrolled in law school so I could contribute to creating a legal basis where women would never have to endure the unspeakable pain and suffering inflicted onto my generation. We came together as women and called for 25 percent of the seats in the parliament to be reserved for women, which was included in the new democratic constitution. We went door-to-door in remote villages to inform women and girls of their rights. We fought for inclusion of women in the media and for free press so we could educate the next generation.

Yet even in those early days of hope in 2000s, it was not easy! Although the Taliban had been ousted from power, the shadow of their dark ideology was still lingering. For example, when I was elected to the parliament, women MPs were not given the same amount of time to speak. And if we fought back, our mics would be cut off. We were regularly subjected to verbal abuse. But we remained steadfast and marched onwards.

Today, Afghanistan has changed drastically since 2001. Despite the Taliban’s ongoing brutal crackdown on girls and women, protests led by women for basic human rights continue in the country, the best evidence that the seeds of liberty planted and nurtured over the past 20 years have taken root, we have created our own Identity, in a country the base of politics is ethnicity or religious group, we the women of Afghanistan created women ethnic group with the aim to look beyond the initials causes of divisions among us!

While international attention has largely moved on since the US withdrawal from Afghanistan last year, there is an urgent need for the US and international community to adopt engagement policies with the Taliban that go beyond security concerns and focus on human rights instead. If the Taliban are allowed to continue grossly violating Afghan women’s rights, Afghanistan will always remain dangerously unstable, and millions of Afghans will continue to flee the country to secure a better future for their female family members. And violence will never cease. After a brief respite last year, violence is once again rising. According to a recent report, nearly 3000 people have been killed and injured since the Taliban took over Afghanistan. If we consider undocumented killings carried out by the Taliban; estimates are substantially higher.

The situation in Afghanistan seems like a quagmire but righting the ship should begin with prioritizing human rights and intra-Afghan dialogue which pave the way for a political settlement between Taliban, a marginal reality of Afghanistan empowered by force and violence, and the larger reality which reflects the diverse society of my country. A similar space like Doha process, which provided Taliban with an address to engage in talks in 2013, should be made available for all anti-Taliban political opposition, including Afghan women and civil society, to lead the dialogue with the Taliban to reach a political settlement that provides a meaningful path to economic and political stability and protects and builds on the gains of the past 20 years.

Sadly, from my meetings with US officials and UN member states, it is clear that many in the international community see Afghanistan as a complete failure. However, the continued struggle and bravery of women in Afghanistan tirelessly fighting for their rights contradict this misperception.

It’s important to remember that lack of government inclusivity, gross violations of human rights, and unprecedented repression of women under the Taliban’s first regime in the 1990s had turned Afghanistan into the world’s top destination and safe haven for regional and international terror groups. This eventually culminated into the tragic events of 9/11.

The international community cannot afford to let Afghanistan return to pre 9/11 situation again. We cannot allow the seeds of freedom and women’s rights that were so carefully cultivated over the last 20 years to be uprooted by the Taliban. And we cannot stand idly by waiting for another 3:00am phone call.

Fawzia Koofi served as an Afghan parliamentary lawmaker and is an accomplished author and internationally known outspoken advocate for the rights of women and children, democracy and moderate Islam. Koofi was also one of the few women on the Negotiation Team of the Islamic Republic of Afghanistan in Doha.

Stability in Afghanistan: Prioritize human rights and women’s rights
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In Afghanistan, Was a Loss Better than Peace?

November 9, 2022

BY: Kate Bateman

United States Institute of Peace

Thursday, November 3, 2022

By the time the United States started pushing for a political settlement, it was too late. Washington can draw lessons from that experience.

The American war in Afghanistan incurred staggering costs — for the United States, Afghans and others — over two decades. The U.S. government spent $2.3 trillion, and the war led to the deaths of 2,324 U.S. military personnel, 3,917 U.S. contractors and 1,144 allied troops. For Afghans, the statistics are nearly unimaginable: 70,000 Afghan military and police deaths, 46,319 Afghan civilians (although that is likely a significant underestimation) and some 53,000 opposition fighters killed. Almost 67,000 other people were killed in Pakistan in relation to the Afghan war.
The full extent of the indirect costs is greater still, considering injuries and illnesses, displacement, war widows and orphans, malnutrition, destruction of infrastructure and environmental degradation due to the war. Given these immense costs and the Taliban’s total victory, it is worth examining closely whether it was possible to achieve a compromise with the Taliban that would have preserved U.S. and Afghan government political objectives.
In a discussion at USIP, U.S. government officials and academic experts noted that for a long time the U.S. did not seek political negotiations because U.S. officials thought victory was possible and the political risks of talking to the Taliban too high. By the time that thinking changed, impatience and weak U.S. leverage made it impossible for Washington to secure any interests beyond the withdrawal of troops. Interagency silos, biases toward a need for vengeance and a focus on total victory fed misjudgments that ultimately resulted in a lack of meaningful attention to pursuing a political settlement.

Prioritizing Short-term Counterterrorism Above a Political Settlement

Over the course of four U.S. administrations, counterterrorism remained the United States’ primary goal in Afghanistan. “The peace process was never our priority,” said Tamanna Salikuddin, the director of South Asia programs at the USIP, during the discussion.

Dipali Mukhopadhyay, an associate professor at the University of Minnesota and a senior expert at USIP, noted that the primacy of counterterrorism put “the Afghan government in an impossible position. It demanded of them to engage as if they were a sovereign state when, in fact, they were a territory that was being used by the U.S. in service of this war. And the Taliban understood that.”

The reasons for U.S. inattention to a comprehensive political settlement shifted over the 20-year intervention. In the immediate wake of the attacks on 9/11 and the swift ousting of the Taliban government, “the focus was on building a new government in Kabul” and its legitimacy, Salikuddin said. “Even when senior Taliban leaders offered to surrender in exchange for amnesty, there was no space for consideration of it because ‘we were winning’ and ‘we would beat the terrorists.’ No one expected the Taliban would come back as a major threat.”

Mukhopadhyay observed that “logics of vengeance, triumphalism and political expediency” drove U.S. strategic decision-making in the early years of the war, and in large part persisted through 2021. Salikuddin similarly recalled that the failure to prevent 9/11 energized U.S. national security and intelligence institutions, and U.S. activities mirrored the need for vengeance. This contributed to a political climate in which talking to the Taliban “was just not acceptable,” and even in the Obama administration when U.S. officials pursued secret channels for talks, “it was taboo,” said Salikuddin. “We had sold the American public this idea that the Taliban were the worst terrorists … and there was no way we could negotiate with them. How would we then politically acknowledge that we were going to talk with them?”

U.S. government perceptions of the battlefield also continued to shape thinking about negotiating with the Taliban, even when those perceptions were flawed. Chris Kolenda, a retired U.S. Army colonel and adjunct senior fellow at the Center for a New American Security, pointed to critical factors that the United States misjudged or failed to appreciate: the Taliban’s external sanctuary in Pakistan, a degree of indigenous support for the Taliban and the Afghan Republic government’s inability to win the battle of legitimacy in insurgent-controlled or contested areas.

These factors were stacked against U.S. goals to degrade or defeat the insurgency and build a national government with an army and police forces capable of standing up to the Taliban. As Kolenda underscored, historically, no counterinsurgency effort has been successful when those factors were pointing in the wrong direction. The U.S. exit strategy, however, was premised on the vain hope that it could overcome those factors.

At crucial junctures, like the Obama administration’s troop surge, the U.S. government failed to invest in alternative, political paths to end the war. According to Salikuddin, who was a senior advisor to the U.S. special representative for Afghanistan and Pakistan from 2014-2017, the policy debates were about counterterrorism versus counterinsurgency, how to get Pakistan to cooperate and how to strengthen the Afghan government and security forces.

On the other hand, very few U.S. officials advocated for a comprehensive political process as the main line of effort. Indeed, for many years, some held on to a glimmer of hope that the United States would win the war. The low numbers of U.S. casualties meant that keeping troops in Afghanistan became an acceptable status quo.

The irony is that the idea of a political process to end the war gained traction and acceptance within U.S. policymaking circles at the same time that U.S. leverage was on the decline, as the American troop presence dwindled. By the Trump administration, the American public was increasingly war-weary and there was desperation to end America’s longest war. This in turn “made the peace process an expedience, a way to get out, not really a way to get a settlement,” said Salikuddin.

Kolenda stressed the consequences of U.S. impatience: “As soon as the U.S. began unilateral troop withdrawals, it became clear that the U.S. just wanted to get out. Then the Taliban could play for time and play hardball.” Nor were the incentives right for the Afghan Republic to negotiate an end to the conflict, Kolenda observed; the imperative for Republic leaders was to do everything they could to keep U.S. forces in Afghanistan.

U.S. Bureaucracy Not Set Up to Pursue a Political Settlement

Salikuddin, Kolenda, and Mukhopadhyay concurred that there are significant structural obstacles within the U.S. government that militated against efforts to align political and military strategies, or even to conceive of ending a conflict through a negotiated settlement.

“The U.S. has no organized way of thinking about war termination beyond decisive, zero-sum victory,” Kolenda argued. Part of the problem is resource imbalances that privilege military tools of national power. U.S. agencies often operated in silos and without a strategic vision of a realistic end state. “We have nobody functionally in charge of our wars. There is nobody on the ground in Kabul in charge of all U.S. efforts on the ground. [Those efforts] are all silos reporting to Washington, and all doing their own things,” Kolenda said.

From the intelligence community to the Defense Department to the State Department to the U.S. Agency for International Development, each bureaucracy was focused on its own goals without an overarching strategy driving toward a common goal. These agencies may have been achieving milestones, Kolenda said, and therefore believed they were being successful. Meanwhile, the overall mission was in drift. “Instead of being a fist that moves as one, we’re like five fingers that we keep getting jammed.”

Why Did Lessons Go Unlearned or Ignored?

From the outset of the war, a vast amount of relevant knowledge could have informed U.S. policy, Mukhopadhyay said. For instance, empirical evidence existed on the role that spoilers could play in derailing peace, the importance of third-party peacekeeping forces, the risks of holding elections too early, the perverse effects of aid and the salience of sanctuary in the success of insurgencies. “Yet at every step of the way” she said, “the lessons within those empirical findings seem to have been ignored.” Even much of the evidence and research produced throughout the war seemed largely irrelevant to policy on the ground.

The use of knowledge and research, Mukhopadhyay said, emerged later as an attempt to do two things: “[T]o clean up messes that had already been made by decisions that were locked in early on, and to affirm or confirm a set of biases that were driving the spending of money, the movement of troops and the unrolling of one doctrine versus another.”

New research then fed into a “wartime information economy” that often “enabled projects, programs and ideas that maybe were working in a micro sense but weren’t actually shifting political facts on the ground in a meaningful way,” Mukhopadhyay said. Again, like the siloed “fingers” of agencies that Kolenda described, particular forms of research and evidence were used to justify certain activities, with the sum of the parts being less than the whole.

Much of this research was conducted by outsider organizations and individuals, who lacked a deeply rooted understanding of the country.

Mukhopadhyay pointed to numerous structural dynamics in how policy was made and implemented, which also “do not lend themselves to deeper reflection” and reassessment. These include the ways in which personnel were assigned, short tours, force protection and the insulated ways that embassies and organizations operated.

Mukhopadhyay described a kind of clash of civilizations between the worlds of the academy and of policymakers. The way academic work is published, its long timelines, decisions on hiring and tenure, and what kind of research gets funded do not correspond to the way policy is made or incentivize relevance to policy or timeliness. Further, the parameters of policy decisions tend to be complex and opaque to outsiders, curtailing their ability to contribute to those decisions.

Nevertheless, there were exceptions in Afghanistan: research on drone warfare, civilian casualties and the role of contractors “shed light on problems, shifted the needle in public discourse, and created debate within military and civilian institutions that seemed productive and important,” Mukhopadhyay said.

In the end, though, it wasn’t enough to move the needle in Afghanistan. The hope now is that these lessons can inform policy in future conflicts, preventing a repeat of the immense costs in blood and treasure seen during the Afghanistan war.

In Afghanistan, Was a Loss Better than Peace?
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Biden, Democrats’ downward spiral began with Afghanistan

November 9, 2022
OPINION
Published 
Historians will pinpoint Biden’s chaotic withdrawal from Afghanistan as the moment when Americans began to lose trust in their president

When historians look back at the pivot point for the Biden presidency—and what originally set up the coming expected Democrat meltdown in Tuesday’s midterms—they will point to Afghanistan, and the series of disastrous decisions the president made in July and August 2021. They not only led to the worst foreign policy debacle for the Unite States since the fall of Saigon in 1975.  They also led the public to wonder whether the president they had just elected, was truly fit for office.  It’s a question that’s only gathered negative momentum since.  placeholder

Although Biden and the media would try to blame the chaos that resulted from his mishandling of Afghanistan on President Donald Trump, the truth was Biden had inherited a stable if uncertain situation in Afghanistan. While Trump had made it clear he was pulling American troops out of Afghanistan and winding up America’s longest war, he had also not set a timetable for departure.  And no one—least of all the Taliban—doubted whether Trump would send U.S. troops back in-country if needed.  The man who had stamped out ISIS was not a person to mess with.

When Biden took charge, however, he threw out any pretense of a carefully staged or thoughtful withdrawal.

First came the decision on July 2 to shutter Bagram Air Force base, the central hub of the U.S. presence and security.  Six days later Biden shocked everyone, including the Afghan government, by announcing he was speeding up the U.S. withdrawal deadline to August 31—two weeks earlier than originally planned. By July 21 the Taliban controlled half of Afghanistan, despite Biden’s assurances to Americans that the collapse of the country was “not inevitable.” Three weeks later the Taliban took the capital Kabul, where the remaining American presence had shrunk to the U.S. embassy perimeter.

What happened next was a human tragedy and a series of disastrous optics. While Biden assured the public there would be no images of helicopters leaving the U.S. embassy roof as happened during the abandonment of Saigon in 1975, what they did get were images of desperate Afghans chasing after a U.S. C-17 on the Kabul airport runway–even clinging to the plane’s wheel wells as it took off, then falling to their deaths.  Meanwhile, the embassy grounds were swamped by thousands of Afghans fleeing Taliban retribution.

Biden’s other broken promise was that no Americans would be left behind.  In fact, hundreds of Americans were stuck in-country along with thousands of Afghans who had loyally served with us against the Taliban. It required private agencies like Project Dynamo to do what the Biden team was unwilling or unable to do, namely making sure Americans who wanted to get were able to get out.

Then on August 16 came the suicide bomber attack that killed 13 U.S. service members, followed by a botched attempt to take out another would-be bomber, which resulted in the death of an Afghan aid worker and seven children.

At the same time, Biden’s statement in an interview that none of his generals had disagreed with the decision to flee Afghanistan, turned out to be another falsehood.

But perhaps the final blow to Biden’s reputation came with the air strike on Al Qaeda leader Zawahiri as he was visiting Kabul. If the president and his team hoped this would make Biden look bad and bold—as when Donald Trump had taken out IRGC head Suleimani–the public realized this really meant Al Qaeda was back in business in Afghanistan.

In effect, we had come full circle, back where we were when Operation Enduring Freedom was first launched more than 20 years earlier.  The Taliban decided to underline our humiliation with a victory parade with some of the $7 billion of captured US equipment, from Humvees to attack helicopters. That video became the emblem of the worst U.S. foreign policy disaster in more than 40 years—and the image of Biden as not only incompetent but dishonest.

That impression was reflected in the polls. When Biden first announced plans for a withdrawal from Afghanistan in April, his approval rating stood at 52.5 percent. By the end of August, an NPR/PBS NewsHour/Marist poll showed his approval had slumped to 43 percent.  It’s never recovered since.

If the Tuesday midterms turn out to be a disaster for Democrats, they can blame their policies on crime, on the border, on COVID lockdowns, and their promotion of CRT and drag queens in kindergartens.

But in the end it’s their president’s decisions in Afghanistan that set them off on their downward spiral.  It was during July and August 2021 that–to paraphrase Winston Churchill–those terrible words were first pronounced against them: Thou art weighed in the balance and found wanting.

Starting with their chief executive.

Biden, Democrats’ downward spiral began with Afghanistan
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No Justice in Afghanistan for Slain Journalist 2 Years On

November 8, 2022
Patricia Gossman
Associate Asia Director
Human Rights Watch
November 7, 2022
Yama Siawash, Other Attack Victims, Their Families Deserve Answers, Accountability

Two years ago today, former Tolo News TV presenter Yama Siawash was killed in a car bombing on November 7, 2020, moments after he climbed into a government-owned vehicle in Kabul. Despite the high-profile nature of the attack, the former Afghan government failed to carry out a thorough investigation or prosecute anyone for the crime.

Siawash was known among Afghans for engaging in heated debates with government officials on live television. He uncovered corruption and exposed the shortcomings of then-President Ashraf Ghani’s government, journalism that earned him threats from senior Afghan officials.

In April 2021, Afghan authorities claimed to have arrested 11 suspects who had allegedly confessed to the bombing and other crimes. Afghan authorities have a history of obtaining coerced confessions through use of torture. None of the 11 were prosecuted. A parliamentary inquiry concluded that the authorities also failed to carry out a forensic investigation and preserve critical evidence from the scene of the attack, including the remains of the car.

Siawash’s killing took place during a period of skyrocketing attacks on Afghan journalists. According to a United Nations report, 33 Afghan media professionals were killed between 2018 and 2021. The Taliban and groups linked to the Islamic State (ISIS) admitted responsibility for many of these, but the perpetrators of other attacks, including the one that killed Siawash, remain unknown. The UN found that impunity for these attacks had been “total.” With the Taliban’s takeover of Afghanistan in August 2021, access to justice has further narrowed as the group has dismantled the justice system and continues to carry out serious abuses against journalists.

The second anniversary of Siawash’s killing follows the International Criminal Court’s announcement that it can resume its investigation in Afghanistan. This investigation needs to address serious crimes by all parties to the conflict, including those for which former Afghan government officials may be responsible. The Siawash family is still seeking justice. His killing, and all attacks on journalists, activists, and other civilians should be at the forefront of any investigation.

No Justice in Afghanistan for Slain Journalist 2 Years On
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Is There a Way Out of Afghanistan’s Economic Nightmare?

November 8, 2022
by Masom Jan Masomy
National Interest
November 6, 2022
Despite the supply and delivery of humanitarian aid to Afghanistan, the people continue to experience acute food insecurity and economic tensions.

In its recent report, the World Bank has estimated that Afghanistan’s economy ‘faces critical challenges’ in which the country’s total Gross Domestic Product (GDP) is projected to contract further, with an accumulated contraction rate of around 30-35 percent between 2021-2022, in addition to having no improvements in per capita income. Moreover, since the re-establishment of the Taliban administration in 2021, Afghanistan has received around $1.8 billion in humanitarian aid from the international community. The United States has provided $1.1 billion in funds to assist the Afghan people during these tumultuous times. However, through relevant agencies of the United Nations, donor countries continue to provide aid to Afghanistan. Yet, despite this assistance, the Afghan communities continue to live in dire conditions accompanied by acute food insecurity, rising food prices, drought, and a lack of jobs.

Since the Taliban forcibly retook power in Kabul, the flow of humanitarian aid, provided primarily by the United States and European countries, has not effectively addressed the deepening economic dilemma of Afghanistan. According to UN calculations, twenty-five million people need urgent assistance, showing an increase compared to 18 million people from last year’s economic meltdown in Afghanistan. Public hospitals are also running out of medicine, and people, particularly children, have been infected by epidemic diseases such as cholera, measles, and malaria throughout the Taliban rule. Meanwhile, private investment has been fleeing the country. Because of economic hardships, no external financial support subsidizing private enterprises, and the reinvestment reluctance of investors and businessmen, the Public Private Partnership (PPP) status is at a zero level. These all have exacerbated the public mindset greatly.

The torn case of the Afghan economy substantially originating from the Covid-19 pandemic, political impasses, massive corruption by elites, and lingering insecurities in Afghanistan in 2020 continued to undermine the country’s economic growth. With the increased insecurity and the scheduled withdrawal of NATO and U.S. forces from Afghanistan in 2021, the country’s economy started to decline further, encompassing a wide gamut of critical areas and industries, such as education, health, investment, and trade, impacting daily living and the productivity of markets. Foreign organizations also steadily reduced their activities in Afghanistan and closed their missions in different working areas before the complete withdrawal of Western forces.

U.S. sanctions and the central bank’s $9.3 billion in frozen assets contributed to the economy’s sharp decline, resulting in the restriction of the Afghans’ interactions and engagements with the rest of the world. Sanctions and a weakened economy have intensely affected many people in Afghanistan. Some have reportedly resorted to selling their organs and children to buy food, and some even committed suicide. Furthermore, the massive flow of Afghan refugees to neighboring and western countries reflects the increasingly troubled economy, persecution, insecurity, and, more importantly, the ambiguous future of the country under the rule of the Islamic Emirate of Afghanistan (IEA).

Although the Islamic Emirate of Afghanistan (IEA) announced its annual budget for the first time in May, this year essentially rests on collecting national revenues and a significant dependency on coal exports to Pakistan for funding. However, more is needed to address the current economic catastrophe and the challenges ahead. Rising global prices coupled with Afghanistan’s crumbling economy after Russia’s war in Ukraine exacerbated Afghans’ social and economic conditions due to increasing inflation. The facts on the ground illustrate that many families will continue to suffer and endure poverty and food shortages if they do not receive considerable attention. In the latest Global Hunger Index 2022, Afghanistan ranks 109 out of 121 countries and has fallen six spots signaling a precarious future.

Fundamental Challenges to Afghanistan’s Economy Recovery

The Taliban has still not achieved international recognition because it has not met the pledges made to the international community concerning human rights, women’s rights, and inclusive governance in Afghanistan. It has also created domestic dissatisfaction with the Taliban and significant trauma to national legitimacy. Therefore, non-recognition has inevitably resulted in Afghanistan being internationally isolated along with critical trade curbs, banking systems fallouts, and constrained people-to-people contacts, all a considerable blow to the already weakening economy of Afghanistan.

Notwithstanding the improved security after the Taliban takeover, the Islamic State Khorasan Province (ISKP), an opposing group to the Taliban, has become a dominant and rising threat to Afghanistan’s security and stability, killing 700 and wounding 1,406 Afghans by carrying out bombs and suicide blasts coinciding with the Taliban’s rule. Such insecurity and threats have triggered apprehensiveness throughout all classes of Afghan society, particularly the wealthy businessmen, traders, and investors who show no interest in investing in Afghanistan’s private or public sectors. More importantly, Afghanistan has become ignored after the asymmetric media attention given to Russia’s war in Ukraine and the burgeoning ‘Great Powers Competition’ coming along with it.

Alternatives for Economy Recovery

Despite the supply and delivery of humanitarian aid to Afghanistan, the people continue to experience acute food insecurity and economic tensions. It implies that foreign assistance for Afghanistan’s people has been temporarily advantageous but not effective enough to resuscitate the devastating socio-economic conditions of the country. Hence, the international community should consider a unified, consistent, and balanced mechanism to address and encompass Afghanistan’s multi-dimensional challenges. Such potential models include developing community-based small and large projects in sectors such as health and education and subsidizing private enterprises through UN-affiliated agencies. Permitting foreign investment would be an effective and helpful approach that would create job opportunities for laborers instead of humanitarian assistance. Such microeconomic and grassroots techniques will actively help poor people to have income for their families.

In this regard, rather than China and Russia providing diminutive humanitarian assistance, the United States and European countries can play a more significant role in financing Afghans. This strategy will allow for a further loosening of the Taliban’s draconian laws and motivate them to uphold principles towards engagements. Accordingly, proactive engagements through efficient diplomatic channels and other interactions with the Taliban are critical to compelling the Taliban to abide by the pledges made to the international community for the prosperity and development of Afghans. Otherwise, there is a possibility of a further downward spiral reaching more instability, emerging threats, the spread of extremism under religious beliefs and ideology, and opium poppy cultivation that can spill over throughout the world.

Masom Jan Masomy is an assistant professor at the Regional Studies Centre, Afghanistan Academy of Sciences in Kabul, Afghanistan. He writes about Afghanistan, Central Asia and South Asia.

Is There a Way Out of Afghanistan’s Economic Nightmare?
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If the U.S. supports the idea of an inclusive government in Afghanistan, then it needs to have an inclusive engagement with all Afghan factions

November 4, 2022

Afghanistan: The Next Chapter

Cornerstone Forum Series

RFI/Religious Freedom Institute

November, 2022

More than one year after the Taliban’s nearly unimpeded takeover of Afghanistan, religious freedom and associated rights in the country are spiraling towards an all-time low. The modest gains in these freedoms made over the past two decades risk complete erasure. The withdrawal of NATO forces and subsequent rapid fall of the previous government in 2021 sparked an emergency evacuation of the international community and of Afghans who supported their work. With energies focused on the closure of diplomatic offices and the withdrawal, there has been limited contact with actors remaining in Afghanistan.

This series invites scholars, diplomats, and regional and policy experts to share their insights into the country and provide recommendations to ensure protections for religious and ethnic minorities and other vulnerable communities, including women and children, across the country. 

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After capturing Kabul in August 2021, the Taliban essentially had two options in dealing with their rivals and the local population: suppress them into silence or negotiate a settlement. The Taliban regime has chosen the former strategy. They banished Afghanistan’s constitution, appointed an all-male, all-Taliban acting cabinet, replaced the national flag with their party banner, and excluded women from public participation.

The rebel group signed a deal with the U.S. in 2020 which was a pivotal moment in running their violent campaign home. And, after forcefully seizing power, they harbored Al-Qaeda’s al-Zawahari in the capital of Afghanistan against the provisions of this deal. America subsequently killed al-Zawahiri by a drone strike.

Washington may wish to announce at home that “the war” in Afghanistan has come to an end, but reality dictates that we acknowledge it is not over yet.

Global Response

For twenty years, the United States and its global allies backed the former government of Afghanistan to fight terrorism with a narrow focus on Al-Qaeda, which had orchestrated the September 11 attacks in America. Then Washington assessed that Al-Qaeda was degraded enough to not have the capacity to target America, and that threats of terrorism were no longer confined only to the geography of Afghanistan.

Thus, the U.S. not only shifted its sights to withdrawal but also it negotiated  with the Taliban—which had in the first place provided the breeding ground for Al-Qaeda—for safe passage on their way out. The U.S.-Taliban deal, which was endorsed by the United Nations, paved the way for the latter to overrun Afghanistan last year.

Ever since, the world, including the U.S., appears to remain in a season of policy drought regarding the country. The American administration has been grappling with one major question: engage the Taliban or isolate them?

Washington officials have run toward both poles at different times. But largely, the administration in America has hidden behind a pragmatic engagement as a middle ground to define its policy toward the Taliban.

This approach may have seen some short-term gains, but only in two areas: evacuating certain at-risk people and providing some humanitarian relief to the local population.

While it’s true that the US has imposed sanctions on the Taliban, which have been upsetting to the regime, it has also engaged the Taliban and lifted travel bans at times, upsetting anti-Taliban forces. Rather than doing whatever is most expeditious for the U.S.’s own interests in a given moment, the U.S. should maximize their efforts toward policies that understand their own well-being is bound up in the well-being of Afghanistan.

But engaging the Taliban alone is not the way to mutual well-being.

This tentative approach falls short of the U.S.’s policy, which also aims to counter terrorism and promote human rights in Afghanistan. The insufficiency of this approach is starkly depicted in recent and ongoing events inside the country. Neighboring Uzbekistan was hit by rockets fired from Afghanistan’s soil repeatedly over the last year. Al-Qaeda’s leader al-Zawahiri was found sheltered by the Taliban in Kabul when he was eliminated in July. The Taliban have continued to impose restrictions on women including their ban on education of teenage girls.

Conditions for Armed Conflict

A study of rebel regimes at the Kroc Institute for International Peace Studies shows that weak institutions, arms availability, and economic and political grievances—which are all existent in Afghanistan—create the conditions for new cycles of armed opposition. Suppression provides the motivation for the public to revolt.

U.S. officials have said they do not back another armed conflict in Afghanistan. However, they have also stated that it is not a matter of if but when the armed conflict reemerges. Their assertions have been supportive of forming an inclusive government to prevent the recurrence of full-scale violence. Pursuing these policies will require a more active effort than mere statements. Beyond the current tenuous policy, Washington should contribute to fostering the conditions for a political process that leads to the formation of a government that is shaped by all Afghans, not just the Taliban. As a start, the U.S. should adjust the degrees of its engagement with local factions in such a way that does not favor the Taliban over others.

When achieved, a peaceful political settlement will counter terrorism, advance human rights, stem further displacement of Afghans, and stabilize the humanitarian crisis.

Inclusive Engagement

Neither total isolation of the Taliban nor pragmatic engagement is conducive to these ends. The United States should instead proactively engage with all Afghan stakeholders including political factions, civil society activists, women, youth, and anti-Taliban armed groups.

Turning a blind eye to the existing and emerging opposition groups will not make them disappear. America should instead communicate with them, resisting the dichotomy of either ignoring or supplying these factions, to balance the scales of political engagement that currently weigh in favor of the Taliban. Congress needs to step in should the American administration shy away from such a stance.

It is true that the Taliban regime has actual power now: control over state institutions, government revenue, and arms. Opposition—be it political, civil society, or armed—may be in their initial stages of formation, but they carry a powerful potential: the ability to mobilize and threaten the regime.

America’s engagement with all Afghan factions, among other methods, can serve as a tool to exert pressure on the Taliban to consider talks with other local factions. It also broadcasts a confident message to the people of Afghanistan that America stands with them in their fight for a free and peaceful country, that America has not abandoned them.

This is the time to create history by actively promoting a settlement or allow the momentum toward conflict to determine the fate of Afghanistan and the world by extension—again.

Aref Dostyar is a Senior Advisor for the Afghanistan Program for Peace and Development (AfPAD) at the University of Notre Dame’s Kroc Institute for International Peace Studies. 

Previously he worked as Afghanistan’s Consul General in Los Angeles, USA. Prior to that, Dostyar served at Afghanistan’s Office of the National Security Council in the positions of Director General for International Relations and Director of Peace and Reconciliation Affairs. 

Dostyar’s writing and interviews can be found in the New York Times, the BBC, the Foreign Policy Magazine, the Middle East Institute, and several other publications.

Born and brought up in Afghanistan, Dostyar earned a master’s degree in International Peace Studies from the University of Notre Dame through a Fulbright Scholarship.

If the U.S. supports the idea of an inclusive government in Afghanistan, then it needs to have an inclusive engagement with all Afghan factions
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