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What Zawahri’s Death Tells Us About Afghanistan’s Future

August 5, 2022

By JONATHAN SCHRODEN

Politico

The killing is a valuable, if troubling, datapoint about a volatile nation.

The successful strike on Sunday against Ayman al-Zawahri —a man with no shortage of American blood on his hands — is a celebratory moment for President Joe Biden’s administration. For watchers of Afghanistan, it is also illuminating, like a flashbulb on the darkness that has enveloped Afghanistan since the American pullout a year ago.

According to initial reports, the Central Intelligence Agency used a drone to launch two Hellfire missiles at Zawahri after spotting him on the balcony of the Kabul safe house in which he was staying with his family. Even with the limited information now available, this assassination can tell us a great deal about the current security situation in the country, the state of U.S. capabilities to affect that situation and the future of Afghanistan and its people.

It also raises a host of questions that are yet to be answered.

Security is a growing worry

Since the U.S. withdrawal from Afghanistan and the Taliban’s nearly immediate takeover last August, the trend in security for the average Afghan has improved. Civilian casualties, for example, have declined as a result of the end of the long civil war waged by the Taliban against the U.S.-supported government.

However, the threat from terrorist groups of concern to the international community has steadily increased in the past year.

The most virulent of these is the Islamic State-Khorasan, an organization that was on the rebound even before the U.S. withdrew. Since then, IS-K has increased in size to between 1,500 and 4,000 fighters and is now one of the “most vigorous” regional networks of the Islamic State. The group, which routinely conducts attacks against Taliban security forces, has also engaged in horrific attacks against minority groups and rocket attacks against Afghanistan’s neighbors.

Al Qaeda is not as strong as IS-K in Afghanistan (likely numbering several hundred individuals). But unlike the adversarial relationship that IS-K has with the Taliban, al Qaeda enjoys close and abiding relations with the group that now governs the country. A recent United Nations report stated that since the U.S. withdrawal from Afghanistan, al Qaeda senior leaders had “enjoyed a more settled period” and had begun recruiting new members and funding in the country. That report further stated that the Taliban’s takeover had given Zawahri himself “increased comfort and ability to communicate” with al Qaeda’s followers.

The fact that Zawahri was killed in the middle of Kabul — in a neighborhood known to house senior Taliban figures — suggests that both he and the Taliban believed the country’s capital was an effective sanctuary for the world’s most wanted terrorist. Further, Zawahri’s habit of spending time on an open balcony, combined with reports that foreigners were detected in his neighborhood by local Afghans months ago, illustrates the increased sense of freedom that members of al Qaeda have enjoyed in Afghanistan over the past year.

‘Over-the-horizon’ counterterrorism is less effective — but it can work

Before the U.S. withdrew from Afghanistan, it was maintaining several thousand special operations forces in Afghanistan, accompanying counterterrorism strike platforms (e.g., drones), a CIA station and local partner forces such as the Afghan Army Commandos and the elite Ktah Khas. In the wake of the withdrawal, the U.S. lost all of those capabilities, and was left with no residual presence or partner forces in the country.

To mitigate those losses, the U.S. established an “over-the-horizon” counterterrorism cell in Qatar, intended to address threats in Afghanistan remotely. It has been flying routine drone sorties from its airbases there, through Pakistani airspace and over various regions of Afghanistan. Those drones provide the U.S. with some residual means of intelligence collection on terrorist activities in the country. But as of last December, according to the former commander of U.S. Central Command, the U.S. was “at about 1 percent or 2 percent of the capabilities we once had to look into Afghanistan.”

With a tiny fraction of the capabilities it once had, the U.S. has been far less effective at putting pressure on groups like IS-K or al Qaeda in Afghanistan, which accounts in large part for their expansion since last fall. And yet, the Zawahri strike illustrates that even with this small amount of capability, the U.S. remains able to find, fix and finish even the most elusive of terrorist targets there.

While the full details of Sunday’s strike have not yet been revealed, reports have emerged of the CIA having a “ground team” in place before and apparently after the strike was conducted. The infiltration or cultivation of such a team represents a notable expansion in U.S. intelligence capabilities in Afghanistan over the past six months and the successful strike will reignite the fears and reinvigorate the safety protocols of al Qaeda and IS-K leaders.

For Afghans, no good news

While Zawahri’s death is a victory for U.S. intelligence agencies and will likely hobble al Qaeda’s core cadre until a new leader is firmly at the helm, it nonetheless bodes ill for the average Afghan.

Over the past year, Afghanistan’s population of roughly 40 million people have suffered immensely. Financial aid to the country, which formed the predominance of its national budget before the U.S. withdrawal, has decreased precipitously and its economy has contracted by 30 to 40 percent since last August.

Prior to this strike, the U.S. had been engaged in regular talks with the Taliban on issues such as humanitarian aid, opening of secondary schools for girls and the possible release of Afghanistan’s sovereign wealth to a modified Central Bank. Through these talks, the U.S. aimed to inject more resources into the Afghan economy — without directly aiding the Taliban government — to ease the suffering of Afghans.

Now, with the news that Zawahri was not only in Kabul, but being sheltered there by the Taliban’s acting Minister of Interior, Sirajuddin Haqqani, the relationship between the Taliban and the U.S. is likely to move into a cold, tense phase. The Taliban have already condemned the strike as a violation of Afghanistan’s sovereignty and the sole formal agreement between the group and the U.S. that the two sides signed in Doha in 2020. The U.S., for its part, called the Taliban’s harboring of Zawahri a violation of the same agreement.

Negotiations were previously healthy enough that U.S. Special Representative Tom West was able to exchange proposals with the Taliban that were designed to jump-start macroeconomic assistance to the country. In this new atmosphere, it is doubtful that he will be given the same degree of latitude to meet with the Taliban, and it seems likely that no further progress on any of the issues he had been discussing with them will be made soon.

In the meantime, the one constant of the past four decades of Afghanistan’s history — the suffering of its average citizens — is likely to remain.

With new knowledge comes new questions

While the Zawahri attack illuminates a lot about the current situation in Afghanistan, it also raises a host of additional questions. For example, why did the Taliban allow Zawahri to come to Kabul? Was it to keep him safe from discovery and U.S. strikes elsewhere? Or was it to keep tabs on him and his activities, so as to prevent al Qaeda from attacking other countries from Afghanistan, as the Taliban has repeatedly pledged it would do?

Even more important, looking forward: If Zawahri was brought to Kabul and sheltered by the Taliban, who else are they hiding and protecting? Other leaders of al Qaeda? Leaders of other militant groups? And when will the Afghan people see relief from the cycle of terrorism, violence and suffering that they have endured for so long?

Yesterday’s announcement was a moment to celebrate. But it was only a moment. Today brings new knowledge, new questions, new targets, new challenges and new collateral damage in the unending war between the U.S. and al Qaeda.

Dr. Jonathan Schroden directs the Countering Threats and Challenges Program at the CNA Corporation, a nonprofit, nonpartisan research and analysis organization based in Arlington, Virginia. The views expressed here are his and do not necessarily represent those of CNA, the Department of the Navy, or the Department of Defense. 

What Zawahri’s Death Tells Us About Afghanistan’s Future
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For the Taliban, a New Era of Isolation Has Arrived

August 4, 2022
By Christina Goldbaum and Thomas Gibbons-Neff

The New York Times

The group has promised moderation even while reinstituting its harsh rule of Afghanistan. Now, the revelation that the Taliban were sheltering Al Qaeda’s leader is likely to harden support for sanctions.

Hours after an American drone strike killed the leader of Al Qaeda, Ayman al-Zawahri, in downtown Kabul, Taliban security forces rushed to seal off the site. Green tarps were thrown over destroyed windows. Checkpoints were put up, and shops were closed.

But there was no hiding the damage that had been done to the Taliban’s nascent government, which had tried to shelter the world’s most wanted terrorist from the eyes of the American government.

The strike early Sunday morning — and the public revelation that the Taliban had sheltered a key plotter of the Sept. 11, 2001, terrorist attacks in the heart of the Afghan capital — was a watershed moment for the group’s new government. And it underscored the reality of their rule: The Taliban have not fundamentally reformed from their first regime in the 1990s, when their hard-line policies and relationship with Al Qaeda turned the country into a pariah state.

Retaliation against Al Qaeda and the Taliban allies who sheltered the terrorist group drove the United States to invade Afghanistan in 2001, beginning a two-decade-long war that ravaged the country. Now, the Taliban seem to be once more treading the same path, fueling criticism that their government should never be internationally recognized, and raising questions about whether a new era of U.S. strikes in Afghanistan has begun.

A statement from the Taliban condemned the American strike, without specifically mentioning al-Zawahri or Al Qaeda. “It is an act against the interests of Afghanistan and the region,” said Zabihullah Mujahid, a spokesman for the Taliban government. “Repeating such actions will damage the available opportunities.”

The strike comes at an already tenuous moment for the Taliban. Since seizing power, the group has promised to moderate as it seeks international recognition and aid from Western diplomats abroad, even while staying true to its hard-line ideological beliefs at home.

In recent months, the government has enacted increasingly oppressive policies, including restricting women’s rights to travel and work. And it has reneged on an early promise to allow girls to attend secondary school, a stark echo of its first rule.

Those measures have increasingly turned international attitudes against the government and have cost the country millions in foreign aid, worsening its dire economic crisis. Now, the strike against Al Qaeda’s leader in the heart of Kabul has opened a new chapter for the Taliban government, seemingly cementing its international isolation.

The strike highlights what many analysts and experts have warned for months: that the Taliban have allowed terrorist groups, including Al Qaeda and the Pakistani Taliban, to exist freely on Afghan soil since the takeover despite an agreement with the United States in which the group pledged to keep Afghan territory from becoming a haven for terrorist plotting.

“No one is terribly surprised that the Taliban is playing footsie with Al Qaeda, and no one is terribly surprised the U.S. hit him with a drone,” said Graeme Smith, a senior consultant for the International Crisis Group who focuses on Afghanistan.

“The risk now is a slippery slope of ‘over the horizon’ strikes being a viable option dealing with very complicated threats that are coming from Afghanistan,” he added. “There is a rich history of airstrikes not having their intended consequences in Afghanistan.”

Following the U.S. withdrawal from Afghanistan last year, American officials have moved to reposition American forces in neighboring countries where they can launch strikes like the one on al-Zawahri. This strategy is still in its infancy, and talks about positioning forces in places like Uzbekistan, Tajikistan and Pakistan are still in their early stages.

It remains unclear whether the strike over the weekend will be the first of many, or a one-off.

“The strike doesn’t necessarily tell us much about the over-the-horizon strategy because it was clear that al-Zawahri was a big enough fish to go after regardless of the general policy,” Mr. Smith added.

For many Afghans in Kabul, news of the U.S. airstrike in the heart of the capital stirred deep-seated fears of a return to the era of American military intervention, after a relatively peaceful stretch over the past year since the U.S. troop withdrawal and end of the devastating two-decade war.

American officials insisted that no one other than al-Zawahri was killed or hurt in the strike over the weekend. But just a year ago, in the chaotic final days of its withdrawal in August 2021, the United States carried out a drone strike based on bad information that killed 10 civilians in Kabul — an error American officials acknowledged only after reporting by The New York Times.

Shafiq, 25, said he was arranging fruit at his stand in the Wazir Akbar Khan neighborhood of Kabul when he heard a powerful explosion. For a moment he froze, he said, seized by the fear that once again hundreds of people had been killed in a deadly attack. In time, he came to fear that it could be the beginning of yet another bloody conflict.

“I am personally very worried about the future of our country,” said Shafiq, whose full name is being withheld for security reasons. “We want peace and security in our country after this, and we do not want war to start in our country again.”

The Taliban’s history with Al Qaeda stretches back decades. Mullah Omar, the Taliban’s first leader in the 1990s, was largely deferential to Al Qaeda’s expanding existence in the country’s east during those years. Some Taliban factions had a closer relationship with the terrorist organization than others — especially the Haqqani network, whose senior leadership fought alongside and aided Al Qaeda’s founder, Osama bin Laden, during the Soviet-Afghan war.

As its terrorist camps spread, Bin Laden issued a “declaration of jihad” in summer 1996 that called for attacks on the United States. Omar was at times clearly frustrated with the negative international attention that began focusing on his government, but he still refused to eject Bin Laden, even after Al Qaeda’s Sept. 11 attacks set the United States on the path to invasion.

Both Bin Laden and al-Zawahri pledged allegiance to the Taliban’s leaders over the years, though al-Zawahri’s most recent pledge — in 2016 after Haibatullah Akhundzada rose to become supreme leader of the Taliban — was never publicly accepted or rejected by the group.

Over the course of the U.S. war in Afghanistan, American forces periodically killed Qaeda leaders in Afghanistan, despite the group’s having been mostly driven out of the country or into hiding in the mountainous border regions with Pakistan.

But a larger drift back into Afghanistan began in more recent years. In 2015, U.S. and Afghan commandos, backed by American air support, attacked an Al Qaeda training camp in the southern part of the country that military officials said was one of the largest ever discovered. One such camp sprawled over 30 square miles, and hundreds of Qaeda fighters were killed or injured in the battle, U.S. officials said at the time.

Less than a year before the United States left Afghanistan, and after U.S. and Taliban officials had signed the Doha agreement in 2020, Afghan government forces killed a senior Qaeda leader who was under the protection of the Taliban in southeastern Afghanistan. The raid was a clear indication that the Taliban had refused to sever ties with the terrorist group despite the commitments made in the Doha talks. Still, the American troop withdrawal continued.

Since the Taliban seized power, analysts and experts have warned that terrorist groups, including Al Qaeda and the Pakistani Taliban, have been able to operate more freely across Afghanistan.

Cross-border attacks launched by the Pakistani Taliban from Afghanistan more than doubled in the eight months after the Western-backed government collapsed, according to the Islamabad-based Pak Institute for Peace Studies. And this spring, United Nations monitors warned that the Taliban were providing “operating space for about 20 terrorist groups broadly aligned with Al-Qaida and Taliban objectives.”

The U.N. report added that Al Qaeda had found “increased freedom of action” in Afghanistan since the Taliban seized power and that al-Zawahri had been issuing regular video messages — a sign that he was feeling more comfortable since the Taliban’s takeover and his move back to Afghanistan.

Now, following al-Zawahri’s death at the hands of the United States, many are waiting to see how Al Qaeda and the Taliban will define their relationship.

“It’s interesting what happens next,” said Ibraheem Bahiss, an analyst with Crisis Group’s Asia Program. “If Al Qaeda chooses a leader that’s present in Afghanistan, then it doesn’t solve the Taliban’s conundrum.”

Safiullah Padshah contributed reporting from Kabul and Eric Schmitt contributed from Washington.

For the Taliban, a New Era of Isolation Has Arrived
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Killing of Qaeda Leader Crystallizes Debate Over Biden’s Afghanistan Strategy

August 4, 2022
By Peter Baker

The New York Times

President Biden now confronts the question of what, if anything, he will do in response to the revelation that the Taliban were again sheltering a leader of Al Qaeda.

WASHINGTON — The sunrise missile strike that shredded the leader of Al Qaeda on the balcony of a house in Kabul finally validated President Biden’s decision to withdraw from Afghanistan. Or perhaps the strike discredited it. Or maybe some combination of both.

The coming anniversary of the chaotic American withdrawal from Afghanistan was already sure to instigate a round of arguments about its wisdom, but the killing of Ayman al-Zawahri by a C.I.A. drone hovering over the Afghan capital has crystallized the debate in a visceral way.

To Mr. Biden and his allies, the precision operation that took out one of the patrons of the Sept. 11, 2001, attacks without civilian deaths demonstrated that war can be waged against terrorists without large deployments of American troops on the ground. To his critics, though, the stunning realization that al-Zawahri had returned to Kabul evidently under the protection of the Taliban made clear that Afghanistan has again become a haven for America’s enemies.

“The successful U.S. strike vindicates those who’ve argued for an over-the-horizon counterterrorism strategy in Afghanistan,” Kate Bateman, who helped write reports for the American government on corruption, drugs, gender inequality and other issues in Afghanistan, said in a discussion hosted by the U.S. Institute of Peace. “But Zawahri finding harbor in Kabul may also point to a graver threat than was assumed.”

The dual conclusions emerging from the strike complicated an otherwise heady moment for a president who just authorized the operation that took out one of the most wanted men in the world. Hunting down and killing al-Zawahri may not have resonated with the public in the same way the raid that dispatched Osama bin Laden did in 2011, but it was nonetheless seen across the board as a victory for the United States.

The implications of that victory, however, were still being sorted out the day after Mr. Biden’s nighttime address to the nation announcing the drone strike from over the weekend. The president now confronts the question of what, if anything, he will do in response to the revelation that the Taliban were once again sheltering the leader of a group dedicated to killing Americans.

The peace agreement that led to last year’s troop withdrawal, negotiated by President Donald J. Trump before he left office and then carried out by Mr. Biden, specified that the Taliban would not allow Afghanistan to become a launching pad for future Al Qaeda violence against the United States as it was before the Sept. 11 attacks.

While the Biden administration called al-Zawahri’s presence a clear violation of that deal, known as the Doha Agreement for the capital of Qatar where it was sealed, some analysts said the Taliban could maintain that it was not out of compliance because sheltering the fugitive head of Al Qaeda was not the same as serving as a staging ground for new attacks.

The White House did not see it that way. “The Taliban have a choice,” John F. Kirby, the strategic communications coordinator for the National Security Council, told reporters on Tuesday. “They can comply with their agreement” to bar terrorists from their territory “or they can choose to keep going down a different path. If they go down a different path, it’s going to lead to consequences.”

But neither Mr. Kirby nor other officials would specify what kind of consequences Mr. Biden had in mind. There is no appetite in the White House, or for that matter most of Washington, for a return of significant military force to Afghanistan. And the Taliban leadership that swept into power in the wake of last year’s American withdrawal has successfully defied international pressure as it has reimposed a repressive regime, including a renewed crackdown on the rights of women and girls.

“We’re back to where we were before 9/11, and unfortunately that means the Taliban and Al Qaeda are back together,” said Bruce Riedel of the Brookings Institution, an adviser to multiple presidents on the Middle East and South Asia who conducted a review of Afghanistan policy for President Barack Obama when he came into office. “Twenty years of effort were wasted.”

Al-Zawahri returned to Afghanistan earlier this year, according to American intelligence reports, moving with his family into a house in one of the most exclusive enclaves of Kabul, where American and other foreign diplomats lived not too long ago only to surrender the neighborhood to Taliban figures. “He must have felt very safe, 100 percent confident that nothing could harm him,” Mr. Riedel said.

Indeed, the Taliban clearly knew al-Zawahri was there and safeguarded him. He was living in a house owned by a top aide to Sirajuddin Haqqani, the Taliban interior minister and part of the Haqqani terrorist network with close ties to Al Qaeda, according to two people with knowledge about the residence. After the strike, members of the Haqqani network tried to conceal that al-Zawahri had been at the house and restrict access to the site, senior American officials said.

Mr. Biden justified his decision to pull out last year on the grounds that Al Qaeda was no longer there. “What interest do we have in Afghanistan at this point, with Al Qaeda gone?” he said at the time. “We went to Afghanistan for the express purpose of getting rid of Al Qaeda in Afghanistan as well as getting Osama bin Laden. And we did.”

Mr. Kirby argued on Tuesday that the president meant that Al Qaeda was no longer a significant force in Afghanistan by that point, noting that government assessments at the time concluded the group’s presence was “small and not incredibly powerful.” Mr. Kirby added, “We would still assess that to be the case.”

As a result, he and other officials said, the strike on al-Zawahri showed that even without the Taliban living up to its commitments, the United States retained the ability to take out threats in Afghanistan by employing military forces based elsewhere in the region, or over the horizon, as the strategy is called.

“It has proven the president right when he said one year ago that we did not need to keep thousands of American troops in Afghanistan fighting and dying in a 20-year war, to be able to hold terrorists at risk and to defeat threats to the United States,” Jake Sullivan, Mr. Biden’s national security adviser, said on ABC’s “Good Morning America.”

Still, some counterterrorism experts expressed caution. “The strike proves that over-the-horizon” counterterrorism strategy “can work — emphasis on ‘can’ — but not that it will generally,” said Laurel Miller, a former acting special representative for Afghanistan and Pakistan under Mr. Obama.

“Zawahri was a special case, for which all the stops would be pulled out in terms of resources and level of effort,” added Ms. Miller, who is now at the International Crisis Group. “This operation does not automatically erase the assessment that” operating from outside the country “has significant limitations.”

Daniel Byman, a terrorism expert at Georgetown University who served on the staff of the bipartisan commission that investigated the Sept. 11 attacks, said the al-Zawahri strike proved that the United States could still wage war without troops on the ground and that without troops on the ground Afghanistan would become a sanctuary again for Al Qaeda.

“They’re both right,” he said of allies and critics of the president.

But what might be more concerning, he added, was that the flashy success of knocking off a marquee figure like al-Zawahri only goes so far in dismantling terror networks.

“From what has been reported, it does show impressive operational capacity,” he said. “However, much of the U.S. success against Al Qaeda and ISIS came from grinding decapitation campaigns that went after trainers, recruiters, planners and other lieutenants. Doing such a sustained campaign in Afghanistan seems quite difficult.”

At the same time, Mr. Byman said, whoever succeeds al-Zawahri will presumably be more cautious, limiting communications and meetings, making it harder to actually lead a global organization. “So even being able to threaten the very top,” he said, “does have some value.”

Killing of Qaeda Leader Crystallizes Debate Over Biden’s Afghanistan Strategy
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Al-Qaeda Leader Killed in Kabul: What might be the repercussions for the Taleban and Afghanistan?

August 4, 2022

Kate Clark

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President Joe Biden has announced the killing of the leader of al-Qaeda, Aiman al-Zawahri, in a drone strike. Zawahri was central to the founding of al-Qaeda, the intellectual and organisational force behind the group, key to the decision to attack US targets in east Africa, the Gulf, New York and Washington DC, and deputy and successor to Osama bin Laden. He was killed right in the centre of Kabul, in a house reported to belong to the Taleban’s acting interior minister, Serajuddin Haqqani. Hosting the al-Qaeda leader would appear a clear breach of Taleban commitments in its February 2020 Doha agreement with the US.

AAN’s Kate Clark looks at Zawahri’s life and the possible repercussions of his death.

Aiman Zawahri, an obituary for whom can be found at the end of this report, was killed by two hellfire missiles fired from a drone at 06:18 local time on Sunday, 31 July, according to US officials quoted by Reuters. One of the officials said Zawahri was targeted as he came onto the balcony of the mansion where he was living, in the Sherpur neighbourhood. US intelligence, the official said, had first identified Zawahri’s wife, daughter and her children as having been relocated to the house in Kabul, and later that Zawahri himself was living there as well.

Once Zawahiri arrived at the location, we are not aware of him ever leaving the safe house,” the official said. He was identified multiple times on the balcony, where he was ultimately struck. He continued to produce videos from the house and some may be released after his death…

US President Joe Biden announced the killing of Zawahri in a televised address to the American nation (transcript here). He said he hoped it would “bring one more measure of closure” to those who had lost family and friends in al-Qaeda’s attacks on New York and the Pentagon on 11 September 2001. It appeared that Biden also wanted to compensate for the debacle of the chaotic and unconditional withdrawal of US troops from Afghanistan in August 2021, which had paved the way for the Taleban takeover:

When I ended our military mission in Afghanistan almost a year ago, I made the decision that after 20 years of war, the United States no longer needed thousands of boots on the ground in Afghanistan to protect America from terrorists who seek to do us harm.

And I made a promise to the American people that we’d continue to conduct effective counterterrorism operations in Afghanistan and beyond.

Reports of some sort of strike emerged quickly on Sunday. The Taleban initially said a rocket had been fired and hit an empty house in Sherpur, leaving no casualties (see defence ministry spokesman quoted by Kharma Press). On Monday 1 August, spokesman Zabihullah Mujahed tweeted that, after investigation, the authorities had confirmed the attack was by a US drone. He condemned the strike, arguing that, whatever the motivation, it was “a clear violation of international principles and the Doha Agreement.” Yet, hosting Zawahri would seem to be a evident breach of that agreement, signed by the Taleban and the US on 29 February 2020, which committed the US to withdrawing its forces from Afghanistan and in return, the Taleban/Islamic Emirate to:

Prevent any group or individual, including al-Qa’ida, from using the soil of Afghanistan to threaten the security of the United States and its allies.

…will not allow any of its members, other individuals or groups, including al-Qa’ida, to use the soil of Afghanistan to threaten the security of the United States and its allies.

…will send a clear message that those who pose a threat to the security of the United States and its allies have no place in Afghanistan, and will instruct members of the [Taleban] not to cooperate with groups or individuals threatening the security of the United States and its allies.

…will prevent any group or individual in Afghanistan from threatening the security of the United States and its allies, and will prevent them from recruiting, training, and fundraising and will not host them in accordance with the commitments in this agreement.

Yet, the Taleban were hosting the leader of al-Qaeda in the centre of Kabul and also, US officials say Zawahri was making propaganda videos at the house. That may have included his most recent from April 2022 praising the Indian woman, Muskan Khan, for wearing hijab despite a ban in her home province and the jeers of Hindu extremists (see AP report on the video here).

Following Biden’s announcement, there have been no further statements from the Taleban, but one important allegation has emerged, as reported by Associated Press (AP): “The house Zawahiri was in when he was killed was owned by a top aide to senior Taliban leader Sirajuddin Haqqani, according to a senior intelligence official.” The allegation has been repeated by “a Taleban official,” speaking to Radio Azadi on condition of anonymity: editor Frud Bezhan tweeted that the official said:

Security was tight around the house, located in #Kabul‘s Sherpur area…. Only two senior Taliban officials — Interior Minister Sirajuddin Haqqani and Defense Minister Mullah Yaqoob Mujahid — visited the house.

Whether or not Zawahri was living in a house owned – or probably more accurately – expropriated by Serajuddin Haqqani, it seems inconceivable that he was not in Kabul at the invitation and with the full knowledge of the Emirate. If other senior leaders did not know that Zawahri was living in the capital, that would signify a dysfunction at the heart of their administration and a failure of the intelligence agency, given the significance of the man and the threat his very presence posed to the Taleban state.

Possible consequences of the killing

The UN’s Analytical Support and Sanctions Monitoring Team had already alleged that the Taleban were harbouring violent jihadist organisations on Afghan soil (its sources are UN member states). Its latest report published on 11 July said that “International terrorist organizations based in the country view the victory of the Taliban as a motivating factor for disseminating their propaganda in the neighbouring regions of Central and South Asia, and globally.” At the Great Gathering of Afghanistan’s Ulema, which was held in Kabul from 30 June to 2 July, Taleban leader Hibatullah Akhundzada had also said the Taleban’s victory was a source of pride not only for Afghans but also for the faithful the world over. He declared his intention, with the good counsel of the Afghan ulema, to spread ‘our sharia’ to mujahedin everywhere.

As to al-Qaeda/Taleban relations, the Monitoring Team’s report said the leadership “reportedly plays an advisory role with the Taliban, and the groups remain close,” and Zawahri himself had “increased outreach to Al-Qaida supporters with a number of video and audio messages, including his own statement promising that Al-Qaida was equipped to compete with [the Islamic State in Iraq and the Levant], in a bid to be recognized again as the leader of a global movement.” The Monitoring Team said al-Qaeda “enjoys greater freedom in Afghanistan under Taliban rule but confines itself to advising and supporting the de facto authorities.”

Strangely, President Biden did not mention the Taleban in his address, not even to blame them for harbouring al-Qaeda. His Secretary of State, Antony Blinken, however, did accuse the Taleban of having “grossly violated” the Doha Agreement. Another official quoted by The New York Times also called Zawahri’s presence a “clear violation” of the agreement, but, said the newspaper, “it was not evident what action, if any, Mr. Biden would take against the Taliban as a result.” Biden did issue a warning:

And to those around the world who continue to seek to harm the United States, hear me now: We will always remain vigilant, and we will act.  And we will always do what is necessary to ensure the safety and security of Americans at home and around the globe.

From the Taleban came not so much a warning as an attempt to cast the drone strike as an attack on mutual interests. Such actions, spokesman Mujahed said in his Monday tweet, “are a repetition of the failed experiences of the past 20 years and are against the interests of the USA, Afghanistan and the region.” Repeating such actions, he said, “will damage the existing opportunities.”

Just how dangerous Zawahri was is argued over. A BBC biography described him as “a remote and marginal figure” in recent years, “only occasionally issuing messages” and with “relatively little sway as new groups and movements such as Islamic State have become increasingly influential.” US officials, however, have insisted that Zawahri was still a threat. After his killing, reported AP, the White House “underscored that al-Zawahri had continued to be a dangerous figure,” continuing to “’provide strategic direction’” including urging attacks on the US, even while in hiding, urging “members of the terror network that the United States remained al-Qaida’s ‘primary enemy’.”

The UN Monitoring Committee thought it unlikely that al-Qaeda and its affiliates would seek to mount direct attacks outside Afghanistan in the near term “owing to a lack of capability” and restraint by the Taleban. However, “Al-Qaida is considered a significant threat to international security over the long term, especially relative to [the Islamic State in Khorasan Province], which poses the greater threat in the short and medium term.” Moreover, al-Qaeda’s influence, it said, “depends on having a safe haven, improved communications and resources to distribute.” The Taleban’s victory in August 2021 must have boosted al-Qaeda morale, as well as hopes for a second period of glory. Sunday’s drone strike has suddenly made Afghanistan a much less safe haven for al-Qaeda and other groups and dented their prospects for regrouping and growing again in influence and activity.

Whether the leader of al-Qaeda was dangerous or might have become dangerous, the fact that he was killed on Afghan soil in the heart of Taleban-controlled Afghanistan in a house reportedly owned by the Emirate’s acting interior ministry will surely have consequences for the Taleban and for Afghanistan.

If the US had been looking for a partner after August 2021 that could just look after its most basic core interests in Afghanistan – which are not girls’ education or a free press or an inclusive government, but ensuring the country would not again be a base for internationally-minded terrorists threatening US security interests – it will just have concluded that the Taleban cannot be that partner. Instead, the Taleban appear to have decided once again to throw their lot in with people whom no American administration can stomach. If they had handed Zawahri over, they might now be on the road to international recognition. Instead, they have made the same choice as Mullah Omar did in the years up to 2001, of looking after their ‘guests’, or at least of only trying half-heartedly to get rid of them, or in this case (possibly) of not making a decision on what to do about this most dangerous of guests.

As well as international recognition now appearing to be absolutely off the table, there could be other consequences. In the wake of the now indisputable evidence that the Taleban have been harbouring al-Qaeda, it may become more difficult for the US and other donors to contemplate giving Taleban-controlled Afghanistan anything more than humanitarian aid. The current plan (details and analysis here) to funnel money via the World Bank, UN agencies and NGOs for healthcare and other development spending could falter. The drone strike on Zawahri comes off the back of the Taleban’s stony refusal to countenance other demands from western donors – as well as countries in the region and many of their own citizens – to let older girls go to school, women to work, and to form an inclusive government.

In turn, the Taleban will surely also be anxious about the willingness and ability of the US to conduct other armed strikes on Afghan soil. The threat from the air, which caused so many deaths to Taleban during the insurgency, is not over. “You know,” said Biden, “it [Afghanistan] can’t be a launching pad against the United States. We’re going to see to it that won’t happen.” Emirate officials may also be pondering the implications of this comment by a US official speaking to AP: “a CIA ground team and aerial reconnaissance conducted after the drone strike confirmed al-Zawahiri’s death.”

It is not a promising prospect for Afghan citizens contemplating their future. They were already living in a collapsed economy with borders that are difficult to cross and must now be wondering whether the Taleban have just managed to confirm to the West that their country should remain isolated and treated as a pariah. At the same time, they must also fear that their rulers will become more edgy, more suspicious and more dangerous.

A postscript: who lives where since August 2021

And finally, for those interested in where Afghan elites live, it is interesting that Serajuddin Haqqani appears to own a mansion in Sherpur, while other senior figures in the Emirate have been named during the reporting of the drone strike as living nearby, including the interior ministry’s chief of staff, Mawlawi Zainullah and Kabul chief of police Mawlawi Hamza (see this Twitter thread by Afghan journalist, Bilal Sarwary).

For centuries, we wrote in 2010, Sherpur “was part of the finely woven agricultural fabric surrounding Kabul. It was only in 2003, that the traditional mud houses, small pieces of farmland and a historical garden were all bulldozed.” The land was seized in September 2003 from poor Afghans by the Republic’s first defence minister, General Fahim Khan, the leader of the Shura-ye Nizar faction of the Northern Alliance which had captured Kabul after the Taleban fled. Fahim distributed the prime real estate to his cronies and fellow cabinet ministers, both commanders and civilians – then finance minister Ashraf Ghani was a notable exception in refusing a plot on principal, saying “when land is taken like it was in Kabul a few days ago, this creates a crisis of governance.” Fahim’s ally and Kabul chief of police, Abdul Basir Salangi, himself led the bulldozing and dispossession of the poor people’s mud-built homes in an unannounced operation which caused injuries and misery and destitution for its victims. Fahim argued the homes had been built illegally on Ministry of Defence land in defiance of the Kabul City master plan.

The Afghanistan Independent Human Rights Commission bravely spoke out about the scandal. However, ISAF largely and diplomats almost entirely stood by, having decided it was an internal matter. The then UN Secretary General’s Special Representative, Lakhdar Brahimi, even reproved the UN Special Rapporteur on Housing and Land Rights, Miloon Kothari, for publishing the names of those who took plots. It was an early indication that corruption would thrive in the Republic and its international backers would do little to stop it or protect citizens from the abusive actions of those they had helped bring to power.[1]

Today, we see that senior Emirate officials have taken over the homes which had formerly been occupied by the previous elite. This is something of a tradition when Afghanistan changes hands: the mujahedin commanders who seized homes in the equally upmarket Wazir Akbar Khan district, which neighbours Sherpur, when they captured Kabul in 1992, saw their houses taken over by Taleban, Arab and Pakistani commanders when the Taleban, in turn, captured the capital in 1996, only to seize them once again in 2001. It would be interesting to see who is living in those homes now.

Annex: Obituary for Aiman al- Zawahri[2]

Aiman Muhammed Rabi Zawahri was born in the Egyptian capital, Cairo, on 19 June 1951 into a prominent family; his grandfather had been the grand imam of al-Azhar, widely considered to be the centre of Sunni Islamic scholarship, while an uncle had served as the Arab League’s first secretary-general. His father was a university professor of medicine.

Zawahri was first arrested while still at school, for membership of the world’s oldest Islamist organisation, the Muslim Brotherhood. He went on to study to become a doctor and a surgeon and, in 1972, to join the more militant and more violent Islamist group, Islamic jihad. After the assassination of President Anwar Sadat in 1981, he was one of hundreds to be arrested and tortured by Egypt’s security services; like others before him, notably Sayed Qutb, the revolutionary theorist of violent jihad, Zawahri’s torture reportedly persuaded him of the need for even more extreme and violent action in the cause of establishing an ‘Islamic state’.

Zawahri left Egypt in 1985 after a spell in prison, travelling eventually to Pakistan and Afghanistan where he worked as a doctor during the mujahedin’s fight against the Soviet invasion. In 1993, he took over the leadership of Islamic Jihad and led a fresh violent campaign to topple the Egyptian government. It is thought, a BBC biography says, that he “travelled around the world during the 1990s in search of sanctuary and sources of funding.” Eventually, in 1997, he came to Jalalabad where he joined his old comrade from the 1980s, Osama bin Laden.

On 23 February 1998, Zawahri, bin Laden and three leaders of other violent jihadist groups issued a religious ruling, a fatwa, ordering all Muslims to take up armed jihad against “Jews and Crusaders,” asserting that “to kill the Americans and their allies – civilians and military is an individual duty for every Muslim who can do it in any country in which it is possible.” (Arabic text can be read here; translation here). Later that year, on 23 August, al-Qaeda carried out the bombings of two US embassies in east Africa. At that time, Zawahri and bin Laden were still being hosted by the mujahedin faction, Hezb-e Islami Khales, but from September 1998, after the Taleban captured Jalalabad, they became guests of the Islamic Emirate. Zawahri was later to be a key figure behind the planning of the attacks on New York and the Pentagon in 2001.

Aiman al-Zawahri was officially number two in the al-Qaeda hierarchy, second only to Osama bin Laden, but always very much a co-equal, key to al-Qaeda strategy and organisation and with his Islamic Jihad Egyptian followers having formed a core component of al-Qaeda. AP reported:

The 2001 attacks on the World Trade Center and Pentagon made bin Laden America’s Enemy No. 1. But he likely could never have carried it out without his deputy. Bin Laden provided al-Qaida with charisma and money, but al-Zawahri brought tactics and organizational skills needed to forge militants into a network of cells in countries around the world.

After the 2001 US invasion of Afghanistan, al-Qaeda members fled or were killed or captured. According to AP, it was Zawahri who ensured the organisation’s survival:

He rebuilt its leadership in the Afghan-Pakistan border region and installed allies as lieutenants in key positions. He also reshaped the organization from a centralized planner of terror attacks into the head of a franchise chain. He led the assembling of a network of autonomous branches around the region, including in Iraq, Saudi Arabia, North Africa, Somalia, Yemen and Asia. Over the next decade, al-Qaida inspired or had a direct hand in attacks in all those areas as well as Europe, Pakistan and Turkey, including the 2004 train bombings in Madrid and the 2005 transit bombings in London.

Zawahri became al-Qaeda leader after bin Laden was killed in Abbottabad in Pakistan on 2 May 2011. It was a natural succession, but AP says, Zawahri was a very different leader to bin Laden and always a more divisive figure:

Many militants described the soft-spoken bin Laden in adoring and almost spiritual terms. In contrast, al-Zawahri was notoriously prickly and pedantic. He picked ideological fights with critics within the jihadi camp, wagging his finger scoldingly in his videos. Even some key figures in al-Qaida’s central leadership were put off, calling him overly controlling, secretive and divisive.

As the centre of violent ‘jihad’ moved to the Middle East following the US invasion of Iraq in 2003, after the Arab uprisings of the next decade, in which people demanded democracy and accountability, and especially after the emergence of the Islamic State and its slick, horror-filled propaganda, al-Qaeda lost ground in the struggle for pre-eminence among violent jihadists. The victory of the Taleban in Afghanistan in 2021 was a boost to al-Qaeda, a chance to flourish again. That is now in doubt, given the apparent US readiness to kill militants. As to who might take over the leadership, the UN sanctions committee commented in early July that al-Qaeda “currently does not appear to have a clear leadership succession plan.”

Edited by Roxanna Shapour

References

References
↑1 For more detail, see Joanna Nathan’s Land Grab in Sherpur: Monuments to Powerlessness, Impunity, and Inaction, excerpts from Special Rapporteur, Miloon Kothari’s about housing in Afghanistan after a visit to the country, 31 August-13 September 2003, and Huma Saeed and Stephan Parmentier’s When Rabbits are in Charge of Carrots: Land Grabbing, Transitional Justice and Economic-State Crime in Afghanistan.
↑2 Much of the information in this obituary is taken from reports by the BBC, “Ayman al-Zawahiri: Who was al-Qaeda leader killed by US?” and AP Biden: Killing of al-Qaida leader is long-sought ‘justice’.

REVISIONS:

This article was last updated on 4 Aug 2022

Al-Qaeda Leader Killed in Kabul: What might be the repercussions for the Taleban and Afghanistan?
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 Ignoring Afghan women and girls is to do the Taliban’s work for them

August 2, 2022

In Afghanistan, women now talk about their futures in the past tense. I was on a Zoom call recently with two young university graduates in Kabul when I asked them about their plans. “I hoped to go …,” they answered. “I planned to do …”

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But they won’t. They can’t. They have been judged and the verdict rendered: They are female, and for that, from the Taliban, there can be no mercy.

It’s been 11 months since the fall of Kabul, and the vanishing of women is nearly complete. The men who rule my country wield their control with a casual cruelty that can be breathtaking. Just this month, the Taliban told female employees of Afghanistan’s finance ministry — well-educated, well-qualified women barred from their workplace for these past 11 months — to send in male relatives to do their jobs because the ministry’s workload was becoming quite heavy.

Vanished. Just like the freedom to work in your chosen profession. The freedom to travel without a chaperone. The freedom to decide what you will wear in public. The freedom to go to school beyond sixth grade.

None of that will be necessary, the Taliban says. Not for Afghan women. The blue burqa awaits you. At puberty, your education ends, your autonomy ends. Your future is a memory you never had a chance to make.

Eleven months is all it took. The great vanishing of Afghan women is happening again before the eyes of the world, just the way it did in the 1990s when I was a child growing up under the Taliban’s first regime — a girl with no choice but to attend secret schools, walking frightened through Kabul’s streets among the blue shrouds of invisible women.

I am a woman now, in exile abroad, and I haven’t forgotten what those days felt like — just like I haven’t forgotten what I saw in the years after the Taliban’s retreat in 2001.

I haven’t forgotten the Afghan women who returned home, those educated exiles who had studied overseas and came back to take jobs in our public and private sectors and showed all of us that our futures were exactly that — our futures. Ours to shape.

In August, you’ll be seeing Afghanistan in the headlines again. It will be a year since the Taliban’s return and the U.S.-led evacuation of Kabul, an evacuation my students and I were part of. You’ll hear the stories of refugees scattered around the world, and of the immigration purgatory so many find themselves in, waiting for the chance to build new lives.

These refugees must have access to quality education — women and girls in particular. My school and I are committed to the effort, and the international community must make investment in these women and girls an aid priority, especially in those who will not soon leave the transit camps in which they live.

Many girls in these camps have not had schooling of any kind for a year or even longer. To ignore these girls is to do the Taliban’s job for them. The men who rule my nation fear what an educated girl can become and what an educated woman can create. I say, let them fear us.

They remember who led the way in reviving Afghanistan after the demise of their first regime. By investing in the education of Afghan refugees, we work to make that past prologue.

We are the women of Afghanistan. And our futures are ours.

Shabana Basij-Rasikh, a Washington Post Global Opinions contributing columnist, is co-founder and president of the School of Leadership, Afghanistan.
 Ignoring Afghan women and girls is to do the Taliban’s work for them
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What Zawahri’s Death Tells Us About Afghanistan’s Future

August 2, 2022
By JONATHAN SCHRODEN
Politico

Dr. Jonathan Schroden directs the Countering Threats and Challenges Program at the CNA Corporation, a nonprofit, nonpartisan research and analysis organization based in Arlington, Virginia. The views expressed here are his and do not necessarily represent those of CNA, the Department of the Navy, or the Department of Defense. 

The successful strike on Sunday against Ayman al-Zawahri —a man with no shortage of American blood on his hands — is a celebratory moment for President Joe Biden’s administration. For watchers of Afghanistan, it is also illuminating, like a flashbulb on the darkness that has enveloped Afghanistan since the American pullout a year ago.

According to initial reports, the Central Intelligence Agency used a drone to launch two Hellfire missiles at Zawahri after spotting him on the balcony of the Kabul safe house in which he was staying with his family. Even with the limited information now available, this assassination can tell us a great deal about the current security situation in the country, the state of U.S. capabilities to affect that situation and the future of Afghanistan and its people.

It also raises a host of questions that are yet to be answered.

Security is a growing worry

Since the U.S. withdrawal from Afghanistan and the Taliban’s nearly immediate takeover last August, the trend in security for the average Afghan has improved. Civilian casualties, for example, have declined as a result of the end of the long civil war waged by the Taliban against the U.S.-supported government.

However, the threat from terrorist groups of concern to the international community has steadily increased in the past year.

The most virulent of these is the Islamic State-Khorasan, an organization that was on the rebound even before the U.S. withdrew. Since then, IS-K has increased in size to between 1,500 and 4,000 fighters and is now one of the “most vigorous” regional networks of the Islamic State. The group, which routinely conducts attacks against Taliban security forces, has also engaged in horrific attacks against minority groups and rocket attacks against Afghanistan’s neighbors.

Al Qaeda is not as strong as IS-K in Afghanistan (likely numbering several hundred individuals). But unlike the adversarial relationship that IS-K has with the Taliban, al Qaeda enjoys close and abiding relations with the group that now governs the country. A recent United Nations report stated that since the U.S. withdrawal from Afghanistan, al Qaeda senior leaders had “enjoyed a more settled period” and had begun recruiting new members and funding in the country. That report further stated that the Taliban’s takeover had given Zawahri himself “increased comfort and ability to communicate” with al Qaeda’s followers.

The fact that Zawahri was killed in the middle of Kabul — in a neighborhood known to house senior Taliban figures — suggests that both he and the Taliban believed the country’s capital was an effective sanctuary for the world’s most wanted terrorist. Further, Zawahri’s habit of spending time on an open balcony, combined with reports that foreigners were detected in his neighborhood by local Afghans months ago, illustrates the increased sense of freedom that members of al Qaeda have enjoyed in Afghanistan over the past year.

‘Over-the-horizon’ counterterrorism is less effective — but it can work

Before the U.S. withdrew from Afghanistan, it was maintaining several thousand special operations forces in Afghanistan, accompanying counterterrorism strike platforms (e.g., drones), a CIA station and local partner forces such as the Afghan Army Commandos and the elite Ktah Khas. In the wake of the withdrawal, the U.S. lost all of those capabilities, and was left with no residual presence or partner forces in the country.

To mitigate those losses, the U.S. established an “over-the-horizon” counterterrorism cell in Qatar, intended to address threats in Afghanistan remotely. It has been flying routine drone sorties from its airbases there, through Pakistani airspace and over various regions of Afghanistan. Those drones provide the U.S. with some residual means of intelligence collection on terrorist activities in the country. But as of last December, according to the former commander of U.S. Central Command, the U.S. was “at about 1 percent or 2 percent of the capabilities we once had to look into Afghanistan.”

With a tiny fraction of the capabilities it once had, the U.S. has been far less effective at putting pressure on groups like IS-K or al Qaeda in Afghanistan, which accounts in large part for their expansion since last fall. And yet, the Zawahri strike illustrates that even with this small amount of capability, the U.S. remains able to find, fix and finish even the most elusive of terrorist targets there.

While the full details of Sunday’s strike have not yet been revealed, reports have emerged of the CIA having a “ground team” in place before and apparently after the strike was conducted. The infiltration or cultivation of such a team represents a notable expansion in U.S. intelligence capabilities in Afghanistan over the past six months and the successful strike will reignite the fears and reinvigorate the safety protocols of al Qaeda and IS-K leaders.

For Afghans, no good news

While Zawahri’s death is a victory for U.S. intelligence agencies and will likely hobble al Qaeda’s core cadre until a new leader is firmly at the helm, it nonetheless bodes ill for the average Afghan.

Over the past year, Afghanistan’s population of roughly 40 million people have suffered immensely. Financial aid to the country, which formed the predominance of its national budget before the U.S. withdrawal, has decreased precipitously and its economy has contracted by 30 to 40 percent since last August.

Prior to this strike, the U.S. had been engaged in regular talks with the Taliban on issues such as humanitarian aid, opening of secondary schools for girls and the possible release of Afghanistan’s sovereign wealth to a modified Central Bank. Through these talks, the U.S. aimed to inject more resources into the Afghan economy — without directly aiding the Taliban government — to ease the suffering of Afghans.

Now, with the news that Zawahri was not only in Kabul, but being sheltered there by the Taliban’s acting Minister of Interior, Sirajuddin Haqqani, the relationship between the Taliban and the U.S. is likely to move into a cold, tense phase. The Taliban have already condemned the strike as a violation of Afghanistan’s sovereignty and the sole formal agreement between the group and the U.S. that the two sides signed in Doha in 2020. The U.S., for its part, called the Taliban’s harboring of Zawahri a violation of the same agreement.

Negotiations were previously healthy enough that U.S. Special Representative Tom West was able to exchange proposals with the Taliban that were designed to jump-start macroeconomic assistance to the country. In this new atmosphere, it is doubtful that he will be given the same degree of latitude to meet with the Taliban, and it seems likely that no further progress on any of the issues he had been discussing with them will be made soon.

In the meantime, the one constant of the past four decades of Afghanistan’s history — the suffering of its average citizens — is likely to remain.

With new knowledge comes new questions

While the Zawahri attack illuminates a lot about the current situation in Afghanistan, it also raises a host of additional questions. For example, why did the Taliban allow Zawahri to come to Kabul? Was it to keep him safe from discovery and U.S. strikes elsewhere? Or was it to keep tabs on him and his activities, so as to prevent al Qaeda from attacking other countries from Afghanistan, as the Taliban has repeatedly pledged it would do?

Even more important, looking forward: If Zawahri was brought to Kabul and sheltered by the Taliban, who else are they hiding and protecting? Other leaders of al Qaeda? Leaders of other militant groups? And when will the Afghan people see relief from the cycle of terrorism, violence and suffering that they have endured for so long?

Yesterday’s announcement was a moment to celebrate. But it was only a moment. Today brings new knowledge, new questions, new targets, new challenges and new collateral damage in the unending war between the U.S. and al Qaeda.

What Zawahri’s Death Tells Us About Afghanistan’s Future
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A New Platform for Afghan Women and Civil Society

August 2, 2022

Anthony Navone

United States Institute of Peace

Monday, August 1, 2022

As Taliban reinstates repressive policies, a new initiative directly connects Afghan women and civil society to U.S. policymakers.

When the Taliban returned to power last August, many wondered if the previous two decades of progress and change in Afghanistan would temper the group’s previously draconian policies. But despite some initial rhetoric that hinted in the direction of reform, the Taliban have recommitted — rather than reconsidered — their repressive approach to governance. Over the last 11 months, the group has instituted massive rollbacks for women’s rights, as well as pushed marginalized groups further to the periphery in a country mired in economic and humanitarian crises.
U.S. Secretary of State Antony Blinken speaking at USIP about the launch of the new U.S.-Afghan Consultative Mechanism.
U.S. Secretary of State Antony Blinken speaking at USIP about the launch of the new U.S.-Afghan Consultative Mechanism.
However, “the women and girls of Afghanistan and other vulnerable targeted people have simply refused to back down,” said U.S. Secretary of State Antony Blinken.What these groups need now is a venue that elevates their voices. “They have lost their platform in Afghanistan,” said Rina Amiri, the U.S. special envoy for Afghan women, girls, and human rights. “They are seeking a place, a platform, to bring their voices together” now that women leaders and activists “are scattered all over the world.”To help coordinate and deepen Afghan engagement with U.S. government officials, the State Department has launched the U.S.-Afghan Consultative Mechanism (USACM). Comprised of various Afghan women’s coalitions, as well as civil society leaders, journalists, academics and religious scholars from inside and outside Afghanistan, the USACM will inform U.S. policy on issues ranging from documentation of human rights violations to the role of women in Islam.

“What we want to do is to make our partnerships with Afghan civil society more effective, more rigorous, more productive, more purposeful,” said Blinken as he introduced the USACM at a USIP event.

Constricting Women’s Role in Afghan Society

The launch of the USACM comes as the situation on the ground for Afghan women and girls continues to worsen. Prior to the fall of the former government, women and girls had expanded their access to education and economic mobility. Women comprised 38 percent of teachers, and 3,000 licensed and 54,000 unlicensed small-to-medium Afghan businesses were run by women. Women and girls “didn’t just study at schools, they ran them,” said Blinken.

But since August 2021, the Taliban have rapidly constricted women’s and girl’s freedoms, leading to a 75 percent drop in women’s employment compared to pre-takeover levels. Additionally, the Taliban have reinstated requirements for face coverings and drastically reduced women’s ability to travel freely or alone.

On the education front, the Taliban have ordered universities to enforce gender-segregated classrooms. And after originally assuring both Afghan girls and the West that girls’ education would reopen in March, the Taliban abruptly reversed course and the ban for girls in grades seven and up remained in place. The decrees have wrought havoc and often come without warning — many girls learned of the education ban as they arrived for their first day of classes.

The results have been devastating. Domestic violence is on the rise as women are further confined to their homes, with little agency to venture beyond their neighborhood. Some women, hit particularly hard by the economic crisis, have been cut off from accessing humanitarian aid as each Taliban decree constricts their movements more and more.

A Devastated Afghan Economy

Meanwhile, the sudden removal of women from the workforce has only worsened Afghanistan’s economic woes. The per capita income in Afghanistan in 2022 is expected to drop by 50 percent compared to a decade prior. This will be disproportionately devastating for women, “because as we all know, the last penny is spent on women in any household,” said Naheed Sarabi, the former deputy minister for policy at the Afghan Ministry of Finance.

Meanwhile, Afghanistan’s GDP is expected to fall by 5 percent, equivalent to roughly $1 billion. Sarabi says the rollback of women’s rights can be seen as one of the main drivers: “You’re losing the economic contribution of half of the population of Afghanistan … half the human capital of the country.”

For a country on the verge of famine and economic collapse, the Taliban’s decision to revert to the oppressive policies of decades past could prove catastrophic — not just for women and girls, but for all of Afghanistan’s future stability.

“Walking away is not a choice that any of us have,” said Amiri. “Not only from a moral imperative, but also from a strategic imperative,” as a fragile Afghanistan poses security risks to the region and international community at large.

The Taliban are Not the Only Reality

Afghanistan is a notably diverse country, with a wide range of cultural and ethnic groups that call it home. But many Afghan women worry that the international focus on the Taliban has drowned out that fact — especially given the Taliban’s unwillingness to reform.

Whether to engage with the Taliban — and how much — has been a difficult needle to thread for U.S. officials. “I continue to maintain that engagement with the Taliban is necessary, particularly to address the situation of Afghans inside the country that are facing a desperate situation,” said Amiri. But at the same time, she said, “I don’t want to give them space to present to the world that they’re engaging in good faith on these issues” when they continue to rollback progress and backtrack on prior assurances.

The troubling reality is that the Taliban control Afghanistan’s government. However, “the Taliban are the reality of the country, but they are not the only reality,” said Asila Wardak, a senior fellow at the Radcliffe Institute for Advanced Study at Harvard University and a founding member of the Women’s Forum on Afghanistan.Even with the crackdown on civil society, women’s groups are still making things possible “from very scratch, from nothing,” said Palwasha Hassan, a founding member of the Afghan Women’s Network and a senior fellow at Georgetown University’s Institute for Women, Peace and Security. “In those places that have been affected by the earthquake, woman have gone there not only to bring services, but also to try to engage with the local Taliban” on women’s and girl’s issues.

A New Consultative Mechanism

The persistence of these women and civil society groups has shown diverse voices still resonate throughout Afghanistan despite the Taliban’s best attempts to tamp them down. But in the face of a repressive regime, these voices need assistance to ensure they are heard.

“It’s very important that the international community doesn’t speak for Afghans,” said Hassan. Instead, the United States and others should “help Afghan themselves to be part of their own solution.”

In a hopeful development, forums offering this kind of platform have popped up around the world. But as these venues propagate, there’s concern that Afghan women and civil society leaders could end up “having separate, repetitive conversations,” said Amiri.

To help alleviate this propensity for repetition, the USACM combines the efforts of forums hosted by USIP; the Atlantic Council; the Georgetown Institute for Women, Peace and Security; and the Sisterhood is Global Institute.

“We are building on the feedback we’ve received,” said Amiri, adding that the United States doesn’t have to “start from zero,” but can instead partner with “platforms that have been engaging Afghans for decades.”

The consolidation is “shaping all these informal discussions into a formal discussion and shows the commitment of the U.S. government,” said Wardak. “We would like to be kind of a bridge between the woman inside Afghanistan and the woman in the diaspora and exile.”

Where Afghanistan Goes from Here

“Afghan women have told me it’s not just the Taliban that’s hurting women right now,” added Amiri. “It is the fact that donor funding has dried up and has left Afghan women in a very desperate situation.”

For Sarabi, the immediate solution is rather straightforward: “Political, social and economic empowerment go hand in hand … What woman need right now, short term, is access to finance in cash. Cash distribution could be a way to uplift them from the current poverty level, quickly.”

Hassan agreed that human rights and economic realities are intertwined for women in Afghanistan. “They are also concerned how to feed [their] children,” she said, noting that child marriage is on the rise because there is “no alternative” for some people.

While straightforward, this solution faces a major hurdle: With the Taliban in charge, most donors no longer have a presence on the ground in Afghanistan, leaving them unable to monitor or administer programs.To circumvent this issue, Afghan women suggest that mechanisms like the USACM connect international donors with local organizations to divvy up responsibilities. “There is room for … local organizations to be direct implementers” while “international organization can play the role of monitoring, evaluations and even capacity building,” said Hassan.Beyond immediate economic needs, Hassan said that as long as the Taliban continue to block girls’ education, “It’s important that we have alternatives for girls in Afghanistan that they can benefit from.” NGOs and other organizations have orchestrated peer-to-peer learning, online education, scholarships and home-schooling initiatives, “but they should not be considered a substitute for an education sector in Afghanistan or formal education,” added Hassan.

Because while international donors and local Afghan organizations can find ways to work around the Taliban’s harsh restrictions, women and girls won’t be able to fully regain their livelihoods and rights without the Taliban sanctioning their official return.

“[The international community] has the the financial leverage, the political leverage, the economic leverage to pressure the Taliban on behalf of the women’s movement, girls, education and protection of civil society organizations,” said Wardak.

Secretary Blinken acknowledged this, saying the United States continues “to urge the Taliban to reverse their decision on girls’ education, to make good on their commitment to the Afghan people, to allow girls to learn.”

But rather than incentivize the Taliban solely through punitive measures from international actors, Blinken added that the Taliban should reverse course because it’s the will of the people they govern —and the Taliban’s tactics to suppress it aren’t working: “In the face of threats, violence, [and] intimidation, the women and girls of Afghanistan and other vulnerable, targeted people … have never stopped believing in a brighter future for their country. They are determined to do all they can to make that future real.”

A New Platform for Afghan Women and Civil Society
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Zawahiri’s killing was a Biden play for popularity – but it may have unintended consequences

August 2, 2022

The Guardian
2 August 2022

The death of the al-Qaida leader points to a potential shift in the complex dynamic between the US, Pakistan and the Taliban

A decade after US Navy Seals killed Osama bin Laden in a special operation in Pakistan, Ayman al-Zawahiri was killed in a US drone strike in Kabul.

Both men were synonymous with the image of al-Qaida. But more than anything, the killing of Zawahiri is a symbolic success for Joe Biden, whose approval rating has been dismally low recently. Even before the ill-fated military withdrawal from Afghanistan that led to the Taliban seizing power, the US president had been vigorously trying to avoid discussing the country in his media engagements. Unsurprisingly, he is now trying to capitalise on the drone strike that killed Zawahiri to seek redemption in Afghanistan.

While Zawahiri was involved in the planning of the 9/11 attacks, his more recent significance is more questionable. Al-Qaida may be one of the most notorious global jihadist groups since the collapse of the Soviet Union, but it has been competing in a crowded space of violent extremists including Islamic State – and its affiliates – in the Middle East, Asia and beyond.

The death of Zawahiri will not transform the nature of any threat facing the US and Europe from Afghanistan under the Taliban. But it underlines how imperative it is to ensure Afghanistan does not become so unstable and forgotten that it provides a ground for the incubation of terrorism and violent jihadists. Groups such as al-Qaida, Islamic State and previously the Taliban are experts in replacing leaders in quick succession without interrupting operations.

Crucially, Zawahiri’s killing unleashes several unknown consequences and political and security implications for different sides of the conflict in and around Afghanistan.

For months there have been unconfirmed reports of drones flying over the skies of Kabul. The Taliban have been presenting their regime as the first in decades to have total control over the Afghan territory. The US drone strike killing Zawahiri in Kabul’s Shirpur district – where some of the most ostentatious mansions were built by former US-backed warlords – defeats the Taliban’s claims of having full territorial control. The US-Taliban agreement signed in Doha in February 2020 states that the Taliban “will not allow any of its members, other individuals or groups, including al-Qaida, to use the soil of Afghanistan to threaten the security of the United States and its allies”. Acknowledging Zawahiri’s presence in Kabul will set the Taliban against the US, but admitting a lack of intelligence will lead to accepting defeat in establishing control.

As the Taliban are largely a loose union of different factions who were strongly united as an insurgency prior to August 2021, it is plausible that one or more factions among them were hosting and protecting Zawahiri. His death will put significant pressure on these internal fissures, especially if the US continues drone strikes in Afghanistan.

Because Afghanistan is landlocked, the over-the-horizon operations by US drones would have needed permission from one of the neighbouring states to enter the Afghan airspace. Iran, central Asian countries and China – which shares a mountainous border with Afghanistan – would not cooperate with the US on this. Pakistan, therefore, would be the logical option. If this US strike was carried out in cooperation with Pakistan, there are several major regional implications. Pakistan has strong relations with China, including the multibillion-dollar infrastructural project, the China-Pakistan Economic Corridor (CPEC). For nearly 20 years, Pakistan provided the Taliban sanctuary as the group waged a bloody insurgency against US, Nato and Afghan security forces that also killed tens of thousands of Afghan civilians. The former Pakistani prime minister Imran Khan celebrated the Taliban’s return to power in August 2021, and blamed the US for a heedless “war on terror”. But Khan was unseated in a no-confidence vote in April.

Pakistani-American cooperation on counter-terrorism operations in Afghanistan would underline a significant thawing of relations. It may impact Islamabad’s efforts to build further relations with China and Russia. However, Pakistan has been facing immense financial difficulties, with rising inflation and plummeting value of the local currency. Islamabad has been desperately trying to gain support from Washington, including by involving its army chief to secure a multibillion-dollar loan package from the International Monetary Fund (IMF). By cooperating on counter-terrorism with the US, Pakistan would naturally expect American support beyond military cooperation including securing financial packages.

It is too early to predict precise outcomes in Afghanistan and the region from this incident. But the US seems to have signalled that it is able to dominate the sky over the country, and that it is willing to act. By demonstrating that they can attack with such precision, the CIA and other US entities will force other jihadist groups underground. Taliban factions who do not enjoy the full patronage of the Pakistani security establishment will also be worried about renewed US-Pakistan cooperation on drone strikes inside Afghanistan.

It remains to be seen if the threat of US drone strikes will be used as leverage to influence Taliban behaviour. Military might did not defeat the Taliban insurgency, but the Taliban did not win militarily either. Ultimately, for all the talk of ending America’s “forever war” in Afghanistan, the Biden administration must acknowledge that 20 years of American involvement in Afghanistan has fundamentally transformed the nature of the country and its region. The US and the west must focus on longterm engagement with Afghanistan if the aim is to prevent the incubation of terrorist groups and global jihadists.

Hameed Hakimi is an associate fellow at Chatham House in London and a senior fellow at the Atlantic Council in Washington DC

Zawahiri’s killing was a Biden play for popularity – but it may have unintended consequences
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Delaying Justice? The ICC’s war crimes investigation in limbo over who represents Afghanistan

August 1, 2022

Ehsan Qaane

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Judges at the International Criminal Court (ICC) have still not made a decision to authorise, or not, the resumption of the court’s war crimes investigation in Afghanistan, ten months after the ICC Prosecutor urged them to expedite their approval. It means that, 16 years after the ICC began to look into Afghanistan, it has still yet to move beyond the preliminary examination stage. The judges appear to be deliberating over who now represents Afghanistan in order to decide whether a deferral request from the previous government still has standing. Since August 2021, Afghanistan has been ruled by the de facto, internationally unrecognised Islamic Emirate, while being represented abroad by diplomats appointed by the fallen regime of the Islamic Republic. AAN’s Ehsan Qaane explores the conundrum of representation that is currently delaying the court, but which also has wider reverberations for the issue of government recognition.

The flag of the fallen Islamic Republic of Afghanistan among the flags of all the state parties at the International Criminal Court in The Hague. Photo: Ehsan Qaane, taken in March 2016, but an ICC spokesperson said, it still hangs there.The flag of the fallen Islamic Republic of Afghanistan among the flags of all the state parties at the International Criminal Court in The Hague. Photo taken by Ehsan Qaane in March 2016, but, an ICC spokesperson said, it hangs there still.

Flashback

The judges of the Pre-Trial Chamber play an important role in the first phase of judicial proceedings at the International Criminal Court, including whether to authorise requests by ICC Prosecutors to proceed with investigations. In April 2019, the judges of the Pre-Trail Chamber (hereafter, ‘the judges’) turned down a request, made in 2017 by the previous prosecutor, to investigate alleged war crimes committed in Afghanistan or in the context of the Afghan conflict: she had named the Taleban, the Haqqani network, the United States military and CIA, and the then government’s security forces.[1] The Appeals Chamber reversed that decision in March 2020. However, before an investigation could begin, it was suspended by a deferral request from President Ashraf Ghani government that same month and submitted it under article 18(2) of the Rome Statute.

Ghani’s administration argued that the court’s intervention was not required because there were active domestic investigations into some of the alleged war crimes and crimes against humanity that the ICC was considering. One of the court’s fundamental principles, as defined in the ICC’s core legal texts, is the principle of “complementarity,” which holds that primary jurisdiction lies with the state on whose territory the alleged crimes were perpetrated. To support its request, the Afghan government submitted thousands of pages of information in Dari and Pashto relating to around 180 cases it claimed were being investigated. Our understanding was that the request, and particularly its heavy load of translation, was aimed at slowing down the court’s work and that it had little real merit – see AAN’s report on Appeals Chamber’s decision here and on Afghanistan’s deferral request here and here.

Karim Khan, the ICC Chief Prosecutor, was still considering Kabul’s deferral request when the Ghani government was forcibly ejected from power by the Taleban in August 2021. In September 2021, about a month after the fall of the Ghani government, he said that his team had not reached “a final determination” on whether to accept the supporting information as reasonable evidence of genuine domestic prosecutions or not. According to him, “further clarifications were still required for a relatively large proportion” of the information provided by the Afghan state.[2]

Nevertheless, on 27 September 2021, he requested that the judges accept an expedited decision to reopen the court’s investigation into war crimes in Afghanistan “notwithstanding the Deferral Request.” Khan explained that it was due to “the significant change of material circumstances” since August 2021, the laws and policies of the fallen regime, including the mechanisms Afghanistan had established to prosecute war crimes domestically, were no longer in place. He argued that neither the Taleban, as the de facto rulers of the country, nor those who represent Afghanistan abroad were “any longer able” to prosecute the war atrocities which come under the court’s scope of investigation. These facts, he said, “are not reasonably subjected to dispute.” (See AAN’s 2021 report about his request here).

Khan requested the judges to rule  “[o]n basis of an expedited procedure,” perhaps due to concerns about destruction of evidence by the Taleban, whose leaders would be one of the primary suspects in the investigation. Khan’s sense of urgency may also have been motivated by disquiet about the ongoing commission of war crimes in the country; on summary executions after August 2021, see Human Rights Watch reports here and here, Amnesty International reports here and here, on an attack on the Sikh community in Kabul, see a Radio Azadi report here and on attacks on Hazaras and Shias, see AAN’s report here.

Khan’s request was controversial. He proposed that because of the “the limited resources available” to his office, he would only to investigate the alleged war crimes of the Taleban and ISKP. By implication, this would mean a deprioritisation of the crimes attributed to the US military and CIA and the former government’s security forces. His predecessor, it should be noted, had concluded that there were reasonable grounds that the United States military and CIA had “resorted to techniques amounting to the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape” and the Republic’s national security forces, …the war crimes of torture and cruel treatment, outrages upon personal dignity pursuant to article, and sexual violence (quotes from her 2016 Preliminary Examination Report; AAN analysis here).

Khan’s request to deprioritise the alleged war crimes of the former government and especially of the US military and CIA was a bombshell to victims and human rights advocates alike. To them, AAN reported, it looked like he was creating a “hierarchy of victims.” Many hoped the judges would revert to authorising the wider investigation. Instead, there have been ten months of waiting with, as yet, no decision. The hold-up stems from the old government’s request to defer the investigation.

Since the Prosecutor’s request, there were ten months of back and forth by the judges as they sought to identify the competent Afghan authorities before ruling on the request. Then, on 22 July 2022, they ordered the Prosecutor to provide them “any material received from Afghanistan in support of the [Afghanistan] Deferral Request” and “an assessment of the Deferral Request, or any other relevant observations and information,” by 26 August 2022. The assessment should also include “evidence to substantiate [the Prosecutor’s] assertions, in particular as the lack of ongoing domestic proceedings or the inaction of the authorities currently represent Afghanistan.”

Rule 54(1) of the ICC Rules of Procedure and Evidence, one of the core legal texts of the court, obliges the judges to themselves examine the supportive information provided by the state requesting a deferral before deciding whether or not to reopen the deferred investigation. However, in the Afghanistan case, as the Prosecutor has argued, the laws, policies and mechanisms for domestic proceedings which were established by the former regime are no longer in place following the regime change in August. Therefore, he suggested that the judges could decide his request “notwithstanding” the supportive information provided by Ghani’s administration. Khan added in his request that he would share the supportive information if the judges asked for it.

The implications of the judges’ 22 July request are not yet clear, and this report will not dwell on the request. Instead it looks about the judges’ push to find out who Afghanistan’s ‘competent authorities’ now are, who represents the country before the court.  How they have gone about that task in the last ten months raises questions about whether they have strayed into political territory, but also highlights wider questions about the recognition or not of a government which comes to power in circumstances the countries of the world find problematic.

Afghanistan’s right to observe

For the judges to rule on Khan’s request to authorise an investigation, they need to be assured that the court has informed Afghanistan about its right to make what is called an observation on the Prosecutor’s request, in other words that the State Party has been given the opportunity to express its support or opposition to the request.[3] The problem for the ICC, however, is: ‘Who’ now is Afghanistan?

Since 15 August 2021, the Taleban have ruled Afghanistan as the de facto government, but without being internationally recognised by any state, while the diplomatic missions appointed by the fallen regime have continued to claim they represent the country abroad, including in the United Nations, and the Netherlands where the ICC is based.

The Afghanistan embassy in the Netherlands has been the diplomatic channel between Afghanistan and the ICC since a meaningful relationship between them was established in 2016 (for more on this relationship, read this AAN report). The court and embassy are both located in The Hague city of the Netherlands. As per an agreement with the old government and article 87(1) of the Rome Statute, this is the channel through which the court should deal with Kabul. So for example, the Prosecutor informed the embassy on 3 September 2021 of his intention to request the resumption of the investigation.

Perhaps fearing the issue of who represents Afghanistan could cause delays, Khan suggested in his request that the judges set a deadline for receiving an observation from Afghanistan. If Afghanistan does not file its observation within the deadline, Khan said, the judges should not “abstain from rendering a decision promptly.” Rather they should avoid unnecessary delays in the proceedings.

From the judges’ perspective, it is vital to establish who the competent Afghan authorities are. They explained this in a letter made on 8 October 2021 to the United Nations Secretary-General and the ICC Bureau of the Assembly of States Parties for “information on the identification of the authorities currently representing the Islamic Republic of Afghanistan by Monday 8 November 2021.” The Prosecutor’s request, the judge’s letter said, “cannot… be legally adjudicated without addressing the question of which entity actually constitutes the State authorities of Afghanistan since 15 August 2021.” They said this question is “central to the triggering of the procedure under article 18(2).” The judges built their argument on the court’s complementarity mandate, which means that if a state, as the primary jurisdiction holder, is domestically providing justice to victims, the ICC’s direct intervention is redundant. To implement the principle of complementarity “orderly, meaningfully and effectively,” it is essential, they argued “that there be no uncertainty as to the representation and competent authorities of the concerned State.” They said that “at the heart” of the Rome Statute is article 18, which among other things, gives a state the legal power to stop an ICC investigation if it can prove its ability and willingness to deal with alleged crimes through the domestic courts.[4] Although the Prosecutor is satisfied that the Afghan authorities – whoever they might be – are not able or willing to try the alleged crimes themselves and so wants the judges to dismiss Ghani’s deferral request, the judges are apparently not yet convinced, or at least want to be clear who the competent authorities are before making a decision.

The judges’ letter to show that they are not convinced that the diplomats appointed by the former regime can truly represent Afghanistan before the court. However, they themselves cannot contact the Taleban authorities directly, as that would imply recognition. The judges also said in the same 8 October letter, they believe the decision of who represents a state is of a “political nature” and a matter of “constitutional and international law,” beyond the mandate of themselves, the Prosecutor, or “any organ of the Court’s purview.”

The two institutions did respond, but were of little help. The Bureau of the ICC Assembly of States Parties said, on 26 October 2021, that “due to its nature and functions, it [the Bureau] does not hold the type of information that is requested.” The UN Secretary General, meanwhile, told the judges on 18 October 2021, that the decision of government recognition was not his to make, but was “a matter for individual Member States.” He noted that the UN “General Assembly has not taken any [new] decision on the representation of Afghanistan.” Since then, a Taleban request for recognition from the UN was rejected by the UN Credential Committee, on 1 December 2021. Soon after, on 6 December 2021, the General Assembly agreed to keep the Republic’s Permanent Representative in office, with no end date, thereby ruling out any change on who represents Afghanistan to the UN for now. That means that Afghanistan is still represented by the Permanent Mission of Afghanistan to the UN which was introduced by the fallen Republic.

Nevertheless, the judges pushed on with trying to clarify what for them appears still to be a pressing issue. On 24 February 2022, they issued an invitation for Afghanistan to submit an observation on the Prosecutor’s request. The judges outlined their problem in the letter. Changes of government, they say, “have no impact on the continuity of States” and do not stop the business of the court. While “no state has formally recognised the group which ousted the government of Ashraf Ghani,” as they pointed out, numerous states, the UN and others have held talks and “have officially referred to the group that has seized power as the ‘Afghanistan de facto authorities’ or the ‘de facto government’ of Afghanistan, therefore regarding members of that group as the interlocutors of Afghanistan.” The judges stress that they are seeking observations on the request to investigate so as to “ensure the continuity of judicial proceedings in the most rigorous way.” For these reasons, the judges say:

…the Chamber invites pursuant to rule 55(2) of the Rules Afghanistan to provide observations on the Application for resumption of the investigation, no later than Friday 25 March 2022. Accordingly, the Chamber orders the Registrar to communicate the present order to the authorities currently representing Afghanistan. 

The judges appear to have thrown the ball to the ICC’s Registrar, who is the head of the Registry, which manages all the administrative functions of the ICC to contact the relevant authorities. In the same letter, the judge also “invites the Islamic Republic of Afghanistan to provide observations.” If the judges considered them one and the same, it would not have made two requests.

The Afghan ambassador to the Netherlands, Asif Rahimi, did respond privately to the judges, saying that due to “the security and political developments in Afghanistan” in August 2021, he was “unable to provide any further observations or submissions.” This was directly quoted in a confidential ICC report, which was mistakenly uploaded onto the ICC website as a public document for a few days (AAN read the report before it was removed and later received a copy from someone who had downloaded it).

On 7 April 2022, the judges wrote a second request, this time to the UN Secretary-General and to the United Nations Assistance Mission in Afghanistan (UNAMA), asking them to send on their invitation to submit observations to the “authorities currently representing the Islamic  Republic of Afghanistan.” They also “reiterate[d] the invitation to the Islamic Republic of Afghanistan to provide observations on the Prosecutor’s Application for resumption of the investigation.” Again there was a strange, double request, both directly to the Islamic Republic of Afghanistan, and to the UN to say who was now representing the Islamic Republic of Afghanistan, all at the same time that the already-agreed channel of communication to Afghanistan, the ambassador, is co-located with the court in The Hague.

Possibly the judges were hoping that someone other than Republic-era Afghan ambassador to the Netherlands, or his counterpart at the UN would respond. This was not to be. On 4 May 2022, the UN Secretary-General forwarded the judges’ invitation to Afghanistan’s Permanent Representative to the UN, who, in an interview with AAN on 20 May 2022 said he had sent his response to the court back through the UN.[5] He had made four points to the judges:

  • The Afghanistan embassy in the Netherlands remains Afghanistan’s focal point on matters related to the ICC and Afghanistan;
  • On 15 August 2021, the government of the Islamic Republic of Afghanistan collapsed and the Taleban took power by force;
  • Taleban rule is neither legitimate nor internationally recognised; and
  • The judges should act according to the provisions of the Rome Statute and the Court’s Rules of Procedures and Evidence.

Meanwhile, the Taleban have initiated no communication with the court. This is even though, as well as the invitation for ‘Afghanistan’ to make observations being published on the ICC website, the acting Taleban Foreign Minister, Amir Khan Muttaqi, was informed, unofficially by the Afghan ambassador to the Netherlands of the Prosecutor’s request to investigate and of the judges’ 24 February 2022 letter. This is according to a source at the embassy who spoke to the author in September 2021.

The conundrum of who represents Afghanistan

That the judges wish to be in contact with the competent and rightful authorities of Afghanistan is entirely appropriate. It is also reasonable for them to take the position that it is not in their mandate to decide who represents Afghanistan. However, by disregarding the Afghanistan embassy in the Netherlands as the agreed diplomatic channel between the court and Afghanistan, the judges seem to have made a political determination which may be outside their purview and negate the guidelines of article 87(1) of the Rome Statute which says requests should be “transmitted through the diplomatic channel or any other appropriate channel as may be designated by each State Party.”

The Afghan ambassador to the Netherlands appears to have interpreted the judges’ communications as an indication that the court regards the Taleban as a competent authority, according to an AAN source in the embassy. It was on this basis that he shared the judges’ invitation with the acting Taleban foreign minister through unofficial communication channels.[6]This communication was discovered by Afghan human rights defenders who asked to stay anonymous for security reasons. They pressured the ambassador to cease communications with the Taleban and instead inform the judges that Afghanistan has no observations to offer on the Prosecutor’s request. As a result, the ambassador wrote to the judges and advised them that he could not provide any observations or submissions in the current circumstances, back to Afghan human rights defenders (communication was shared in a WhatsApp group which the author is a member of). Yet, as was detailed earlier in this report, even after the Afghan ambassador’s reply, the judges sent out their second invitation for observations, on 7 April.

The Prosecutor and the Registrar’s position

In contrast to the judges, the ICC Prosecutor and Registrar both believe the Afghan embassy in the Netherlands is the only appropriate diplomatic channel. In his September request, Khan twice mentioned that he had notified the Afghanistan embassy in the Netherlands about his intention to file the request for a resumption of the court’s Afghanistan investigation per rule 54(2) of the Rules of Procedure and Evidence.[7] A source at the embassy, on condition of anonymity, confirmed the receipt of this communication.

The Prosecutor has, in his September 2021 request, acknowledged that the current ambiguities related to the legal standing of a de facto, unrecognised government mean he “cannot be assured of [his] practical ability to confer with the State authorities in question – for example, due to legal impediments in recognising the credentials of such authorities.” While this highlights the difficulties in direct communications with the Taleban, it also does not necessarily preclude the Taleban from submitting an observation. On another occasion, Khan noted that through public invitation on the ICC website and also the ICC Registry “[t]he Chamber has taken the requisite steps to alert the competent Afghan authorities […], and has provided with sufficient time to provide their observations.” By this, he could suggest that who see themselves as entitled to submit observation to the court (a possible reference to the de facto Taleban administration) were able to see the court’s first invitation on its website and could approach the court if they wished.

Khan may have suggested a way through the impasse the judges appear to have created for themselves when he advised avoiding attempts “to define the de jure and/or de facto authorities in Afghanistan at the present time.” They could instead leave it to the Taleban and the diplomats representing the former regime to decide whether or not to submit observations within an agreed period. This position seems reasonable.

The court’s Registrar has taken the same stance as Khan. On 25 March 2022, he reported to the judges, in confidence, that he had transferred the judges’ 24 February request to the Afghan embassy in The Hague “by way of note verbale,” an unsigned diplomatic note (the confidential report was mistakenly published on the ICC website. AAN has a copy of it). The Registrar added his communication was pursuant to article 87 (1) of the Rome Statute, which states that communication between the court and states should happen through diplomatic channels. The Registrar asserted that “the [Afghanistan] authorities did not designate any other appropriate channel following the ratification of the Statute.”

International law and government recognition

International law says that a government change does not affect a recognised state’s legal status. The ICC judges are certainly aware of this principle, as they quote it in their 8 October 2021 request for advice from the UN and ICC Bureau of Assembly of States Parties’ as to who are now the competent Afghan authorities. Recognition of a new state is different from recognition of a new government. There are a few theoretical provisions for the recognition of a new state in international law, for example, the 1933 Montevideo Convention, but there are no provisions for the recognition of a new government. While the latter is more a political matter than a legal one, it does, nevertheless, have many legal implications, including but not limited to the representation of the state internationally.

Changes in government are common and recognising a new government only becomes an issue if that government comes to power unconstitutionally, especially if it is violent, for example, through a coup d’état, revolution or, in Afghanistan’s case, seizure of power by an armed opposition group. In this case, whether or not to recognise the new de facto authorities is a matter for individual states; the UN itself has no power to decide on this matter, as highlighted in the UN Secretary-General’s first reply to the ICC judges. However, member states of the UN could use the UN Credentials Committee to impose a joint decision on a matter of international recognition, as they have done with the Taleban.

International law has competing doctrines regarding the recognition of unconstitutionally established governments. The Tobar doctrine (later known as the Wilsonian Policy) was articulated at the beginning of the 20th century by Carlos Tobar, Ecuador’s then Minister of Foreign Affairs. It holds that governments that have taken power unconstitutionally should not be granted recognition. Similarly, the Stimson doctrine posits that a territory cannot be acquired purely by aggression. This was articulated by then US Secretary of State Henry L Stimson in response to the Japanese occupation of the Chinese territory of Manchuria in 1931. In contrast, the Estrada doctrine, formulated by Genaro Estrada, Mexico’s Secretary of Foreign Affairs in the 1930s, asserts that recognition of a new government should be based on its de facto existence, rather than on other states’ assessment of its legitimacy. This policy is based on the principle of non-intervention and self-determination, in other words, it is not a matter for other states to decide who rules  a sovereign state.

In relation to the Taleban government, members of the UN have followed the Tobar or Stimson doctrines. No state has recognised the Taleban de facto government, which came to power by force after an almost 20-year-long insurgency. Instead, as in UN Resolution 2596, which extended UNAMA’s mandate, the UN Security Council expresses itself in ways that look like it has pre-conditions for the Taleban to fulfil to gain recognised. They are to do with establishing an “inclusive and representative government,” with “full, equal and meaningful participation of women,” upholding “human rights, including for women, children and minorities” and ensuring that Afghan territory is not “used to threaten or attack any country, to plan or finance terrorist acts, or to shelter and train terrorists.”

So far, Taleban policy and practice has opposed such demands promising – shuttering girls’ high schools, for example, and imposing other severe restrictions on the rights of Afghan citizens, particularly women (read AAN’s reports on Taleban restrictions on girls’ education here on freedom of speech here, rules on women’s clothing hereand our analysis of UNAMA’s report on human rights here). Additionally, their supreme leader Hibatullah Akhundzada’s speech to ulema in Kabul on 1 July 2022 told foreigners not to interfere in Afghanistan’s internal affairs.

Victims’ views: “Justice delayed is justice denied”

Always, even in a report about the machinations of the ICC and the complexities of international law, it is important to remember that, fundamentally, this is always about justice. The judges’ ten month search for the ‘competent authorities’ in Afghanistan represents yet another delay for victims. Set against that, in the meantime, the ICC Registry has ended a five-month consultation to collect the views and concerns of victims on the possible resumption of the court’s Afghanistan investigation. This was the second time the court had consulted victims, and is a necessary stage for the judges to give the go-ahead for an investigation or reject if they are not supportive. The first consultation, which concluded in January 2018 as the ICC Registry reported, found almost universal support from more than 6,000 victims for an investigation (see AAN’s report on the first consultation here).

According to the Registrar’s final report on the second consultation, which was submitted to the judges on 24 April 2022, 11,150 individual victims and 130 families shared their views in 16 representation forms, one from an individual, the rest made collectively. All demanded that the court authorises an investigation. The report quoted victims saying variously that “the ICC is the only court of justice” for Afghan war victims, and the investigation should be “immediately… approved,” “resumed” and “continued.” One victim said: “For many victims of gross crimes against humanity, attaining justice” was the “only way to relieve a small percent of the pain and trauma” they felt. Another submission reminded the court that “justice delayed is justice denied.”

Victims of war crimes allegedly committed on Afghan soil or in Poland, Lithuania and Poland in relation to the Afghan conflict have indeed been waiting a long, long time for the court to act. Afghanistan was in the preliminary examination phase from 2006 to 2017, the period when the Prosecutor reviews whether there are grounds for an investigation, the second longest in the court’s history, after Columbia. The Office of the Prosecutor finally sought authorisation to open an investigation in 2017. There was then a wait of two years while the judges of the Pre-Trial Chamber weighing up her request. In the end, in 2019, they rejected it, arguing that conditions at the time limited the prospects for a successful investigation and prosecution. That decision was overturned, on appeal, in 2020. Then, before an investigation could really get going, it was halted by the Ghani administration filing the deferral request.

Now, the ICC Prosecutor has made it clear he wants to resume an investigation, albeit only into the Taleban and ISKP. Yet, even reaching a decision on that has taken the judges ten months, and counting. They have already shown themselves reluctant to allow this investigation – in their original rejection of the previous Prosecutor’s 2017 request for one. Possibly, what we are seeing now is more foot-dragging, if their reservations remain.

Edited by Jelena Bjelica, Rachel Reid, Roxanna Shapour and Kate Clark

References

References
↑1 Based on the previous prosecutor’s preliminary examination, an investigation could cover the alleged war crimes and crimes against humanity perpetrated by the Taleban and its affiliated group, the Haqqani network, the US military and CIA, as well as the Afghan National Security Forces of the Republic regime since 1 May 2003 in Afghanistan and since 1 July 2002 for alleged crimes that took place in Poland, Lithuania and Romania where the CIA allegedly rendered men detained on Afghan soil (the dates are when the Rome Statute came into force). Since then, the Islamic State of Khorasan Province (ISKP) has also come into the purview of the prosecutor.
↑2 According to Khan’s September 2021 request: “The information provided in support of the Deferral Request established that, prior to 15 August 2021, the Afghan authorities had conducted domestic proceedings with regard to certain alleged crimes within the scope of the Deferral Request. However, while the Afghan authorities had submitted some information concerning a significant number of cases, the level of detail in that information varied widely to the extent that further clarifications were still required for a relatively large proportion. Likewise, for a number of cases, the proceedings were not sufficiently advance to form a view of their scope or likely impact.”
↑3 Rule 55(2) of the ICC Rules of Procedure and Evidence, one of the court’s core legal texts, obliges the judges to examine the ICC Prosecutor’s request for resumption of an investigation pursuant to article 18(2) of the Rome Statute and any observations submitted by a state that requested a deferral under the same article. Article 18(2) reads as follows: 

Within one month of receipt of that notification [related to Afghanistan, notification of initiation of an investigation pursuant to article 15 of the Rome Statute], a State may inform the Court that its investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in article 5 [of the Rome Statute] and which relate to the information provided in the notification to States. At the request of that State, the Prosecutor shall defer to the State’s investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation.

It means that a state (ie Afghanistan) has the right to request a deferral of an authorised investigation if it can prove its ability and willingness to prosecute the alleged crimes domestically itself. Upon the state’s request, the Prosecutor must defer the investigation unless the Prosecutor determines that the supporting information provided by the state cannot prove the state’s claim. In this case, the Prosecutor must request the ICC’s Pre-Trial Chamber to authorise the resumption of the investigation. Alleged crimes here refer to article 5 of the Rome Statute which lists war crimes, crimes against humanity, crime of aggression and crime of genocide.
↑4 Article 18(2) basically says that a state has the right to request the deferral of an authorised investigation of the court if it can prove its ability and willingness to itself prosecute the alleged crimes domestically. Upon the request of the state, the Prosecutor then has to defer the investigation unless he or she determines that the provided supportive information by the state cannot prove the state’s claim. In that case, the Prosecutor has to request the Pre-Trial Chamber of the ICC for authorisation to resume the investigation.
↑5 On 3 June 2022, a document posted to the ICC websiteby the ICC Registry said the court had received a letter from the UN without specifying whom the letter was from. This could possibly have been the Afghanistan Permanent Representative’s response to the second invitation or from the UN itself. The letter itself was “classified as confidential, due to the sensitive nature of the information contained therein, and as agreed with the United Nations,” said the ICC Registry.
↑6 In March 2022, AAN asked the ambassador about his communication with the Taleban acting minister for Foreign Affairs, but he gave no answer.
↑7 This rule says that the prosecutor must “inform that State [here Afghanistan] in writing” when she or he requests the resumption of the court’s investigation under article 18(2).

REVISIONS:

This article was last updated on 28 Jul 2022

Delaying Justice? The ICC’s war crimes investigation in limbo over who represents Afghanistan
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Arbitrary Power and a Loss of Fundamental Freedoms

July 24, 2022

Kate Clark

 

UNAMA has published its first major report on human rights in Afghanistan since the Taleban came to power on 15 August 2021. It covers a multitude of issues, including detentions, torture and extrajudicial killings, the rights of women and girls and civilian casualties. One recurring theme is the arbitrary way the new administration often works and the unpredictability of its laws, punishments and procedures. Also underlined in the report, says AAN’s Kate Clark, is the critical importance of ‘fundamental freedoms’, the right to peaceful protest and dissent, the existence of a free media and lively human rights organisations, in helping curb the arbitrary power of the state. These, the report documents, have been increasingly under attack in the last ten months.
Taleban restrictions on the rights and freedoms of women and girls, says a new UNAMA report says, “has effectively marginalized and rendered Afghan women voiceless and unseen.” Photo: Ahmad Sahel Arman/AFP, 7 May 2022.

UNAMA’s new report, Human Rights in Afghanistan – 15 August 2021 to 15 June 2022, is comprehensive and authoritative, detailing violations of a wide range of human rights and freedoms by what UNAMA refers to throughout as the ‘de facto’ authorities. It also traces institutional and other changes which have made it harder and more dangerous for Afghans to seek redress, complain, document abuses, or even know for sure what the new administration’s rules are.
This AAN report traces some of the areas highlighted by UNAMA’s Human Rights Service (UNAMA HRS). They include new ways the state is violating Afghans’ rights, for example, Taleban restrictions on women and girls’ access to education, work and travel – although these echo the first Taleban Emirate’s even more extreme curbs. There are also some very old and familiar violations, revenge attacks on members of the former regime, for example, or the methods of torture used by the Taleban’s General Directorate of Intelligence (GDI). Anyone versed in the history of state torture in Afghanistan will recognise the use of kicking, punching and slapping, beatings with cables and pipes and the use of mobile electric shock devices on security detainees. (See AAN’s dossier of reports on detentions and torture here.)

This AAN report also looks at what has facilitated these violations of Afghans’ rights: the clamping down on human rights defenders and the media, the suppression of free speech and peaceful protest and changes in state institutions, which all help to make the deployment of arbitrary and unaccountable state power so much easier.

As always, for far greater detail, including accounts of individual incidents, and the Taleban’s response to UNAMA’s findings, the 58-page report is worth reading in full. There are also whole sections in the UNAMA report that this report has not covered, including civilian casualties up to the Taleban’s seizure of power and since (a subject AAN hopes to return to), conditions in Afghanistan’s prisons and the Taleban’s use of excessive force at checkpoints.

Extrajudicial killings, arbitrary detention, torture, enforced disappearances, cruel, inhuman and degrading punishments 

UNAMA’s monitoring has indicated a “clear pattern with regards to the targeting of specific groups by the de facto authorities.” These include former members of the Afghan National Security Forces (ANSF), former government officials, individuals accused of affiliation with the armed opposition groups, the National Resistance Front (NRF) and the Islamic State in Khorasan Province (ISKP), journalists and civil society, human rights and women’s rights activists and those the Taleban authorities accuse of ‘moral crimes’.

UNAMA says the Taleban’s general amnesty for former government officials and especially former members of the ANSF has been violated:

Between 15 August 2021 and 15 June 2022, UNAMA HRS recorded 160 extrajudicial killings (including 10 women), 178 arbitrary arrests and detentions, 23 instances of incommunicado detention and 56 instances of torture and ill-treatment of former [ANSF] and government officials carried out by the de facto authorities. These incidents occurred in almost all parts of the country and have affected a range of individuals with differing levels of affiliation to the former government: from senior officials to drivers, bodyguards and relatives of former government and [ANSF] members. 

In the first two months of the new administration, UNAMA says, there were reports of groups of individuals being killed, for example, 17 people in Kandahar city between 14 and 15 August, and 14 members of the ANSF who had surrendered in Khedir district of Daikundi province on 31 August. From October 2021 onwards, UNAMA says, it is individuals, rather than groups, have been targeted, often with a person taken out of their house and summarily shot. The list of examples includes two former female Afghan National Police Officers who were reportedly arrested in Kabul and whose bodies were found on 13 November by the side of a road in Gardez, capital of Paktia province. UNAMA has also tracked the arbitrary detentions and torture, not only of former ANSF and government officials themselves but also their relatives.

Since the Taleban capture of power, UNAMA has also documented the new administration targeting Afghans they accuse of being members or supporters of the National Resistance Front. UNAMA has recorded 18 extrajudicial killings, 54 instances of torture and ill-treatment, 113 arbitrary arrests and detentions and 23 cases of incommunicado detention of people accused of being linked to the NRF, mostly in Panjshir and Baghlan provinces. On 31 May, in the Khenj district of Panjshir, for example, “de facto security forces reportedly arrested 22 civilians accused of supporting the NRF. Three were reportedly released following mediation by community elders, while the remaining 19 were transferred to Dashtak prison and then to an unknown location.”

Afghans with alleged links to ISKP have been the focus of some particularly gruesome abuses. UNAMA says it has documented 59 extrajudicial killings, 22 arbitrary arrests and detentions and seven incidents of torture and ill-treatment by the authorities of individuals accused of ISKP affiliation since 15 August, mainly in Nangrahar province and especially in Chaparhar district and Jalalabad city. Extrajudicial killings in the region, it says, reached a peak in October and November 2021.

The incidents followed a similar pattern – bodies, often dismembered and/or beheaded were found, sometimes hanging from trees. Often the victim had been arrested by de facto authorities one or two days prior to the discovery of their body. In some instances, the circumstances around the killing – including the perpetrator – remains unknown, with bodies being found accompanied by notes stating that the individual was killed because they were an ISIL-KP member. 

One of the examples UNAMA gives is the discovery of the body of a tribal elder on 15 November in Chaparhar district.

He had been arrested by the de facto authorities from a mosque the day prior, and was allegedly targeted for suspected [ISKP] affiliation. His body was dismembered, beheaded and his eyes had been gouged out. He reportedly also had bullet wounds. 


UNAMA has also looked at the punishments given to those accused of violating moral or religious codes and has documented 217 instances of cruel, inhuman and degrading punishments since 15 August 2021. They range from shopkeepers in Lashkargah city in Helmand being slapped and kicked in April because they had not gone to pray in the mosque to a man in Tirin Kot, Uruzgan province, convicted of adultery and sentenced to public flogging on 21 February by representatives from the Departments for the Propagation of Virtue and Prevention of Vice, of Information and Culture, and of Justice, judges and the provincial governor. In Badakhshan, a woman who had accused her brother-in-law of sexual assault on 10 October was herself arrested by the provincial chief of police; both she and her alleged perpetrator were sentenced to lashing and were then ordered to marry. On 14 February, in the same province, in Nusay district, a woman and man were publicly stoned to death, accused of having an extramarital relationship, having reportedly been sentenced by the district governor.

The UNAMA report singles out the Taleban intelligence agency, the GDI, for violations, saying it has recorded instances of killings – both in the form of extrajudicial killings and as a result of severe torture – of detainees. On 19 December, for example, in Meskinabad village in Dasht-e Archi district, Kunduz, “a former Afghan Local Police officer was arrested by de facto GDI outside his house. On 22 December, de facto GDI summoned his relatives for a meeting where they handed over the man’s dead body.”

Arrests and detentions by the GDI, the report says, often appear to be arbitrary, with individuals reportedly not informed of the specific charges against them, family members not informed of their whereabouts or denied visits, not granted access to defence lawyers and only seen by a doctor after having been tortured or ill-treated. In some instances, it says, detentions were based on an individual’s role as a media worker or civil society activist.

Curbs on dissent, protest and reporting

A member of the Taleban speaks on a loudspeaker during a demonstration held to condemn a protest by Afghan women’s rights activists in Kabul. Photo: Mohammad Rafsan/AFP, 21 January 2022.

Importantly, the UNAMA report also traces a gradual clamping down on the right to protest and other ‘foundational freedoms’. It points to the campaign of largely unclaimed targeted killings of human rights defenders, journalists and media workers in late 2020 and early 2021, which had already created a climate of fear by the time the Taleban came to power. Many journalists, human rights defenders and activists then sought to flee Afghanistan, fearing a crackdown by the new administration and indeed, since their takeover in August 2021, says UNAMA, the new authorities have:

Increasingly limited the exercise of human rights such as freedom of peaceful assembly and freedom of opinion and expression, cracking down on dissent and restricting civic space in the country. The arbitrary arrests and detention of journalists, human rights defenders, protesters have had a chilling effect on freedom of the media and civic activism. The absence of due process in the arrests and detention carried out by the de facto GDI puts individuals outside the scope of judicial supervision and increases the risk of extended pre-trial detention periods. The increasingly intrusive role and activities of the de facto [Ministry for the Promotion of Virtue and Prevention of Vice] have compounded such concerns. 

UNAMA documents the Taleban’s increasing crackdown on peaceful protest, including pursuing activists with house searches, arbitrary arrests and incommunicado detention, all especially problematic for women. Meanwhile, the “once rich Afghan media landscape” has also been under attack, with arbitrary arrests (122 cases, one concerning a woman), incommunicado detention (12, all men), torture and ill-treatment (58 cases, one concerning a woman) and threats or intimidation (33 cases, three concerning women) documented. The report said interlocutors “have increasingly highlighted the role of the de facto GDI in exerting pressure on media entities and journalists through threats, arbitrary arrests, incommunicado detentions.”

As for civil society actors and human rights defenders, the UNAMA report says, they have “stopped their operations in most provinces, fearful of repercussions and restrictions imposed by de facto authorities,” while journalists have “increasingly resorted to self-censorship to cope with the new media environment.”

All in all, says UNAMA, the human rights situation “has been compounded by the measures taken by the de facto authorities to stifle debate, curb dissent and limit the fundamental rights and freedoms of Afghans.

Facilitating abuse

By curbing both protests and dissent and the documentation and reporting of violations, the Emirate has made it easier for further violations to be perpetrated. The Emirate has also facilitated abuses by its officials in other ways. One theme running through the UNAMA report is the arbitrary nature of the new administration, of how rules are decided and enforced and violations punished by Taleban officials and agencies.

One example is the role of the newly re-established Ministry for the Promotion of Virtue and Prevention of Vice (commonly referred to as the vice and virtue ministry), whose mandate, the UNAMA report says, “seems to include a mix of policy setting, advice, monitoring, complaints management, and enforcement authority on a range of issues connected with the de facto authorities’ interpretation of what is needed to ensure the propagation of virtue and prevention of vice.” (See AAN’s recent report on the thinking behind the new ministry here.) Over the first ten months of the Taleban administration, UNAMA says it has noted increased instructions from the ministry whether prohibitions, for example, on music, displays of images of women, and the use of cosmetics, or ordering, for example, face-coverings for women, mahrams (close male relative) to chaperone women in public and public prayers for men, or advice “on a seemingly open-ended set of other issues (including but not limited to the length of hair and beards; restrictions on women’s practicing sports, driving, access to public bathing establishments).”

Many of these instructions, says UNAMA, involve the “curtailment of fundamental human rights such as freedom of movement, freedom of expression and right to privacy.” Their legal nature is also uncertain, and often they are “simply announced by a spokesperson in a media interview or via Twitter, leave the system open for interpretation and abuse.” There has also been wide variation in what provincial departments of the ministry have instructed citizens locally to do or not to do. Moreover, the scope of the instructions, UNAMA says, “seems to be purposefully vague, which poses concerns in terms of compliance with the principle of legality, and the element of specificity.”

UNAMA has documented cases where ministry personnel have punished people for violating advice or when they had not actually broken rules. For example, in January 2022, in Taloqan, capital of Takhar province, city, vice and virtue officials “verbally abused a group of three women who were shopping in the bazar with their young children because they were out of the house without a mahram” while in April, in Lashkargah in Helmand province, officials verbally abused a group of women who were shopping in the bazaar without mahrams and beat male shopkeepers for allowing the women to be in their stores unaccompanied; the police subsequently arrested 12 shopkeepers. Yet, the official rule for women is that a mahram is only required for journeys of more than 78 kilometres, while the instruction for women not to leave the house unless necessary is advisory only.

The vice and virtue ministry is also the avenue where citizens are supposed to be able to make complaints through a telephone hotline and a three-stage adjudication or referral decision-making process. UNAMA does not report on how well this is working, but does say that the Taleban’s abolishment of the Afghanistan Independent Human Rights Commission (AIHRC), an A-status national human rights institution under the Paris Principles, on 4 May 2022 “leaves a void that will be difficult to fill. Notwithstanding the establishment of some avenues for citizens to submit complaints to various de facto governmental entities, the absence of an independent national human rights institution will inevitably affect human rights accountability in Afghanistan.”

Violations of the rights of women and girls

“Despite prior assurances during negotiations in Doha and at a 17 August 2021 press conference in Kabul,” writes UNAMA, “that assured women of their rights ‘within the framework of Sharia law’” and that there will be “no violence (…) and no discrimination against women,” women and girls have seen the progressive restriction of their human rights and freedoms. These, it says, stem from the Taleban’s “conservative theo-political position on the role of women.”

Most fundamentally, there are no women in the Taleban’s cabinet or indeed any decision-making forums at national or sub-national levels, denying them the opportunity even to be consulted on matters that affect them and their families. Restrictions, either de facto or as official orders or ‘advice’, specifically on the lives of women and girls include: the ongoing closure of girls’ schools beyond sixth grade; forcing women to have mahrams outside the home, including only allowing women to leave the country if they are with a mahram; orders for women to cover their faces outside and only leave the home if necessary; gender segregation of parks, gardens, and picnic venues in Kabul and; bans on employment by the government except in key roles, for example, health, education and some policing. Widows, the report says, and other women heading households are particularly affected by many of these orders, given that many are predicated on women having male ‘guardians’ to support and represent them.

Afghanistan’s often poor record on violence against women has worsened, with “the dissolution of dedicated mechanisms established to deal with cases of violence against women and girls.” Even where the Taleban have promoted some rights for women, for example, Mullah Hibatullah Akhundzada’s 3 December 2021 decree on women which upheld their women not to be forced into marriage and for widows to enjoy their inheritance rights, UNAMA said it had recorded instances where the authorities – including judges, provincial governors and others – had broken this ruling.

For example, on 15 February, in the Tarin Kot district of Uruzgan province, a woman and her brother were summoned to court regarding her rejection of an offer of marriage, reported UNAMA.

The judges of the de facto Primary Court tried to force the woman to accept, and when she refused they beat her and her brother severely. They were forced to flee their home, fearing further retribution, and her other brother who stayed behind was subsequently detained by the de facto authorities in an attempt to get the woman to accept the proposal.

In another example, from 27 April, a 15-year-old girl told UNAMA she had been sold to an older man by her father, whom she did not want to marry and from whom she had run away with another man whom she married. After her father filed a complaint, the police locked her up, ordered her to divorce her husband and marry the man of her father’s choosing. She remains in detention, with her case reportedly before the court.

For any woman or girl facing domestic violence or sexual assault, the restrictions on their basic rights and freedoms – to work, go to school, travel, and leave the country – and their absence now from decision-making and as judges and lawyers in courts, all make it easier for violent perpetrators to abuse their victims unhindered. It also makes it less likely for victims to get redress. And for women as a whole Taleban restrictions on their rights and freedoms, says UNAMA, “has effectively marginalized and rendered Afghan women voiceless and unseen.”

Conclusion

UNAMA Human Rights Service is now the only extant, on-the-ground, nationwide body documenting human rights violations and trying to hold the new administration to account. It is also one of the few bodies that continues to engage with the Taleban at central, provincial and district levels, bringing, as it says, credible reports of human rights violations to the attention of relevant ministries and departments and raising awareness of human rights standards, instruments and mechanisms.[1] UNAMA says it has appreciated “the willingness of the de facto authorities to engage on various issues, including reports of human rights violations.” It has provided a critical public service in producing and publishing this report.

The report ends with an almost philosophical defence of human rights and how respect for them is integral to Afghanistan’s future:

Ten months after the Taliban takeover, Afghanistan still faces uncertainty over its political, security and socio-economic future. The economic, financial and humanitarian crisis, exacerbated by the sanctions and suspension of non-humanitarian aid flows, continues to negatively affect Afghans’ human rights, including to an adequate standard of living. 

Afghan women and men legitimately expect from the de facto authorities an inclusive governing vision that fosters peace, social cohesion and economic development. It is imperative that such a vision is based on fundamental human rights, as without them people’s participation in public affairs is limited, security is ephemeral, and development is not sustainable. Human rights are not only about complaints being heard, but also about different voices being able to be expressed without fear and being valued as enriching social life. 

Edited by Roxanna Shapour

References

References
↑1 The other body still active is, of course, the International Committee of the Red Cross (ICRC), although its role is to work with the authorities and other conflict actors behind the scenes.

 

Arbitrary Power and a Loss of Fundamental Freedoms
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