James P. Rudolph, former Franklin Fellow, U.S. Department of State, comments on the responsibility of the Biden administration to take decisive action in rectifying the crisis in Afghanistan and uphold the provisions of international law...
Most people presumably would consider Afghanistan to be somewhat of a pariah—or even rogue—state when it comes to respect for human rights. But the truth is that Afghanistan is more entwined in international legal regimes than one would expect, meaning it’s also more subject to enforcement measures than one would expect. The so-called “International Bill of Human Rights” consists of the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR). Afghanistan voted in favor of the UDHR and ratified both the ICCPR and the ICESCR. Interestingly, Afghanistan also has ratified two treaties that not even the United States has touched—the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Rome Statute establishing the International Criminal Court (ICC).
But being a state party to a treaty does not, ipso facto, mean that the state in question will comply with the letter and spirit of the law. Indeed, several states make dubious reservations and declarations purporting to opt out of otherwise binding provisions, and oftentimes the United Nations Security Council (UNSC) is deadlocked. For our purposes, however, the real threat to compliance comes from one source: the Taliban.
Notwithstanding assurances given in recent days by Taliban leaders that they will respect the law and treat women with more kindness, it’s obvious to all who have studied Afghanistan that this is a ruse. As the immortal Yogi Berra once said, “You can observe a lot just by watching.” And by watching, one would note that this is the same Taliban that had, last time it was in power, provided a haven from which al Qaeda planned and launched the September 11 attacks on the United States. The same Taliban that had a Ministry for the Promotion of Virtue and the Prevention of Vice. The same Taliban that enforced discriminatory Sharia laws against women by and through the Religious Police. The same Taliban that forbade women from taking employment, from appearing in public without a male relative, or from receiving a secondary or higher education. Yes, this Taliban—the same one that blew up a 1,500-year-old Buddha statue in Bamiyan.
These same Taliban leaders, who remain unalterably committed to what can only be described as a retrograde version of Islam, are now back in control of the government. How could this have happened? Obviously, all the blame can’t be laid at President Biden’s feet. He was not the first president to deal with this situation, and it’s increasingly clear that the government of Ashraf Ghani was perceived as corrupt and ineffective. There’s also a legitimate argument to be made that the origins of the Taliban reach back to the Cold War and the CIA’s involvement after troops from the Soviet Union hastily departed. The Taliban, in other words, have been planning this for a long time, and Biden—recognizing the futility of continued involvement in the so-called “forever wars”—wanted no more. Fair enough.
But the manner in which the withdrawal happened was, in a word, chaotic. It also was a half-baked response to an increasingly complex situation. Biden’s military advisers (and intelligence assessments) warned that Afghan forces were not prepared to defend against a Taliban offensive. So we’re left with the impression that Biden overruled his military advisers out of naivety or overconfidence. It’s also possible that the progressive forces buffeting Biden—i.e., the desire to end all military campaigns—created this unforced error. The days, weeks and months ahead will reveal more of what we need to know.
What’s indisputably clear at this point, though, is that the perceived competence of the U.S. has taken a hit. Our credibility has cratered, and terrorist groups the world over are celebrating. If the Biden administration wishes to regain control over the situation, it must evacuate Americans stuck in and around Kabul so as to prevent a hostage situation. It must grant vastly more humanitarian visas to those who assisted us as interpreters. It must keep targeted sanctions in place. And it must recommit itself to ensuring that the legal regimes to which Afghanistan has already committed are respected. This structure, as noted, is already in place, and we must be forceful in reminding the Taliban that they are bound by treaty obligations (and the U.N. Charter itself) ensuring universal respect for, and observance of, human rights and fundamental freedoms. These rights and freedoms include freedom of religion, equality of the sexes, access to healthcare (especially for women), access to the political process, participation in cultural activities, a chance to earn a living, etc. It also means atrocities committed by the Taliban can, and should, be investigated and prosecuted by the ICC. The leverage here is not illusory and should be used as needed.
Former U.S. Secretary of State Henry Kissinger, quoting former Prime Minister of the United Kingdom Lord Palmerston, said that the United States has no permanent friends or enemies, only interests. If true, the Biden administration is at a crossroads, as we certainly have an interest in preventing a nation of almost 40 million people from collapsing and becoming yet another breeding ground for terrorism. We also have an exceedingly important interest in guaranteeing NATO’s cohesiveness, which, at the moment, looks shaky indeed. Armin Laschet, head of the Christian Democratic Union in Germany and possibly the next chancellor, described the U.S. withdrawal from Afghanistan as “the biggest debacle that NATO has suffered since its founding.”
President Biden must drop the bravado and the Panglossian pretense that all is well. Allies are wondering about our reliability. Enemies are wondering about our determination. And those suffering on the ground are wondering about the strength of our commitment to human rights and fundamental freedoms. Biden’s moment to redeem himself and his administration is now.
James P. Rudolph is an attorney and former Franklin Fellow human rights officer at the U.S. Department of State.
Suggested citation: James P. Rudolph, Afghanistan: Déjà Vu All Over Again, JURIST – Professional Commentary, August 28, 2021, https://www.jurist.org/commentary/2021/08/james-rudolph-biden-administration-taliban-afghanistan-crisis/.
This article was prepared for publication by Sambhav Sharma, a JURIST Staff Editor. Please direct any questions or comments to him at firstname.lastname@example.org
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