The international community and the United States spent billions of dollars on rebuilding the Afghan legal and judicial system and improving the rule of law and governance over the past two decades. However, after the Taliban takeover, any such progress and achievements quickly disappeared and the foundations for the Afghan legal system that had been expensively rebuilt over the last twenty years are in state of despair, approaching the state of complete anarchy and lawlessness that existed prior to 2001. Accordingly, it is the responsibility of the United Nations (UN) and the countries engaging with the Taliban to make rescuing the legal system and ensuring rule of law their top priority when they negotiate with the Taliban.
Efforts to Rebuild the Legal and Judicial System
After the Taliban 1.0 fell in 2001, a new constitution which embedded both Islamic and modern-progressive values was adopted in Afghanistan in 2004. Although the constitution suffered from many institutional design flaws, including a weak system of checks and balances, it envisaged a democratic political system and guaranteed fundamental and equal rights and liberties for both men and women. In light of the constitution, innumerable laws and legal procedures in conformity with international norms and the modern world were enacted with the help of international and national legal scholars and practitioners. Many development programs were designed and implemented to modernize the legal system, promote institutional reforms, and build the capacity of employees in the justice institutions. Thousands of young, educated women and men entered the legal and judicial systems as judges, prosecutors, attorneys, clerks, and administrators. Most of them received extensive academic legal education and gained invaluable experience, visiting foreign countries and learning from different legal systems. While the system was still grappling with major deficiencies and challenges including rampant corruption and poor implementation, there was still hope for reforms and improvements and the prospect of a better future.
The Taliban and Their Disregard of Laws, Legal Procedures, and the Rule of Law
Although the Taliban has not officially and directly rescinded (or endorsed) any laws from the previous government, their actions demonstrate that they have no regard for the laws and regulations that were enacted in the past 20 years. They have consistently emphasized that they govern in accordance with Sharia without providing specific details or a definition of what they mean by Sharia. For instance, long before retaking Kabul, they considered the 2004 Constitution against Sharia despite the fact that the constitution established Islam as the state religion and the supreme source of law in the country (Article 3 of the constitution states that “no law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan.”). The Taliban has set aside the 2004 Constitution of Afghanistan. On one occasion, on September 28, 2021, the Taliban indicated that they might temporarily implement King Zahir Shah’s Constitution, adopted in 1964. However, other than that one mention, the Taliban has not discussed any constitution or constitutional order.
Additionally, the fate of a huge number of laws and regulations in different areas including criminal law, criminal procedure, family law, juvenile law, and women’s rights is unclear. It can be concluded from the Taliban’s statements that they ignore the laws in most areas but selectively point to provisions or reference some laws such as banking law when it serves their interests. Moreover, the random and often ambiguous orders of their supreme leader are considered the law of the land. One of the recent orders of the Taliban’s leader addressed some issues related to family law including the marriage right of women based on Sharia.
The Taliban has also claimed that they respect international law and international treaties as long as they do not violate Sharia law and their Islamic Emirate’s principles. However, in practice, there is no indication that they intend to comply with any international treaties to which Afghanistan is a state party.
Disbanding Independent Institutions: Bar Association and Human Rights Commission
The Taliban has dissolved the Afghanistan Independent Bar Association, one of the main arms of justice in Afghanistan. They have required about 6,000 bar members (approximately 25% women) to take and pass a new entry exam conducted under the auspices of the Ministry of Justice. The Taliban also prevented a gathering of attorneys who were protesting the dissolution of the bar. In addition to losing their independence under other Taliban decrees, women lawyers are not able to practice law again under the Taliban regime.
Additionally, the Taliban has disbanded the Afghanistan Independent Human Rights Commission (AIHRC). The AIHRC was established on June 6, 2002 based on the Bonn Agreement and international human rights instruments. Under the Islamic Republic, it maintained a critical role in monitoring, investigating, documenting, and reporting human rights violations and advocating for human rights-based policy changes in Afghanistan.
Taliban Militants Taking on the Justice Institutions with Limited or No Knowledge or Expertise in Law
Taliban leaders accused of severe violations of human rights and included in the UN terrorism sanction list are taking on the Afghan justice institutions including the Supreme Court, the Ministry of Interior, and the Attorney General’s Office. (For instance, both the current Taliban Minister of Interior and the new Attorney General are on the UN terrorism sanction list.) The Taliban has systematically replaced the employees of the previous government’s justice institutions with their fighters with no substantial education or background in law or even Sharia. One of the Taliban leaders, the current Taliban Minister of Defense, declared that Taliban members should be hired in government without any educational merits.
The Taliban has dismissed judges (approximately 2000) of them altogether. Not only have they dismissed the judges, but they have also chased down and persecuted many, particularly women judges. Over two hundred women judges have been forced to hide or flee after the Taliban takeover. Many were evacuated to foreign countries by women’s rights organizations and international aid agencies. These judges had gained extensive experience and knowledge in law and received judicial credentials over many years. The Taliban replaced these educated and experienced judges with fighters lacking any judicial qualification. Unfortunately, all these women judges will not be able to sit on the judicial bench again so long as the Taliban remains in power. The Taliban has taken a similar approach to prosecutors and other staff at the Attorney General’s Office.
The Taliban’s Arbitrary Actions and the Rise of Injustices and Human Rights Abuses
Given that the Taliban do not rule by law and legal procedures, it is unsurprising that human rights abuses have significantly increased since the Taliban took control of Afghanistan. Journalists, human rights activists, women’s rights advocates, members of former security forces, and former government employees have been arbitrarily arrested, tortured, or disappeared. Many reports indicate that the Taliban has opened fire and murdered innocent people who have driven by their checkpoints even after having passed the check. This was the case when the Taliban killed a woman and injured two others on 19 February 2022 in Kandahar province.
Furthermore, there have been many photos and videos circulating on social media showing the Taliban fighters parading suspected or accused individuals on the streets with tied hands and black colored faces. There is no way to understand whether those individuals are in fact guilty, or the Taliban have just taken some innocent people and humiliated them in public so they could instill fear for the purpose of control or to create deterrence to prevent real criminals from committing crimes. Furthermore, many reports indicate that the Taliban randomly stop cars or people and search their cellphones in Kabul. Similarly, as a latest move, the Taliban has started a massive house to house search in Kabul, Parwan, and Panjshir provinces. According to reports, the Taliban militants have targeted specific ethnic groups, breaking into their houses without any court warrant and harassing the residents.
Additionally, the Taliban announced that they will resume enforcing harsh punishments such as whipping or stoning in public. In fact, some reports indicate that the Taliban are already implementing such harsh punishments. For instance, a recent report confirmed that the Taliban stoned a man and woman to death without holding a trial on 14 February 2022 in Badakhshan province.
It is unclear how the Taliban would investigate violations of human rights as they claim they would. Apparently, the Taliban govern by their soldiers’ whims without any restraints. If anyone has any grievances, they should go to the nearest commander or governor of the Taliban. Then, the governor or commander would consider and solve the case on the spot without conducting the thorough investigation that would have been conducted previously by a prosecutor and then considered by a judge. A recent special report from Sky News reveals that the Taliban has kept many people including children in a prison in Herat with “no proof, no evidence and no trials.” For the Taliban, this prison was thought to be well-kept and organized so they allowed a visit by international media. By comparison, the situation in other Taliban prisons must be much worse.
The Responsibility of the International Community and the UN Towards the Afghan Legal System and Rule of Law
Although the UN, the United States, and many European countries are currently focusing on responding to the humanitarian crisis and the looming hunger and extreme poverty in the country, they should not forget that they have a responsibility to engage with the Taliban using a broad-based approach with a particular emphasis on ensuring rule of law and preserving the achievements of the last two decades. They should hold the Taliban accountable for any human rights abuses and arbitrary actions. Millions of dollars had been invested in rebuilding the Afghan justice system. The UN, the United States, and other countries that have engaged and negotiated with the Taliban have a responsibility to pressure the Taliban to end their arbitrary actions, restore the justice system, and refrain from installing their fighters in positions requiring technical skills, advanced education, and specific expertise. While the UN and international community are pushing for the establishment of an inclusive government in the country, they have the leverage and opportunity to demand that the Taliban ensure the rule of law and employ appropriate legal procedures in all their actions. Without restoring the legal and judicial system, rule of law in Afghanistan will be eviscerated.
The Afghan legal and judicial system is collapsing rapidly. The Taliban has created a legal vacuum. They put the laws on hold, dissolved the independent legal institutions, and replaced the human capital in justice institutions with uneducated militants without considering the legal or judicial qualifications. Given the present situation, it is expected that human rights violations will only continue to increase dramatically. It is urgently important for the UN and other major international and regional players to place restoring the legal system and the rule of law as their top priority whenever they engage with the Taliban. With the current Taliban’s disregard for laws and legal procedures and the loss of human capital in the justice institutions, it might soon be too late for the Taliban or any “inclusive government” they establish to restore the legal system and ensure justice and rule of law in the country.
The author is grateful to IIE for sponsoring his research at ASU.
Mahir Hazim is a visiting associate research professor at Arizona State University Sandra Day O’Connor College of Law in Phoenix. He is an Afghan academic and legal practitioner with an interdisciplinary background in law, social-legal studies, and political science. He holds a Ph.D. (2020) and LLM (2016) from the University of Washington in Seattle.
Suggested citation: Mahir Hazim, Going Back to Zero: How the Afghan Legal and Judicial System is Collapsing Under the Taliban Regime, JURIST – Academic Commentary, March 7, 2022, https://www.jurist.org/commentary/2022/03/mahir-hazim-Afghan-legal-judicial-system-collapsing-taliban-regime/.
This article was prepared for publication by Nandini Dwivedi, a JURIST assistant editor. Please direct any questions or comments to her at email@example.com