‘The Lives of Afghanistan’s Lawyers Are Still in Danger,’ International Bar Association Director Mark Ellis Urges in JURIST Interview
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‘The Lives of Afghanistan’s Lawyers Are Still in Danger,’ International Bar Association Director Mark Ellis Urges in JURIST Interview

As the diplomatic and military consequences of the United States’ withdrawal from Afghanistan continue to unfold, the true human cost remains immeasurable. Months after the last US forces departed from Kabul, leaving the country under Taliban rule, many face persecution for having upheld the very democratic ideals Washington and its allies spent two decades fostering and funding, and the country’s independent lawyers are among these vulnerable groups.

The Afghanistan Independent Bar Association (AIBA) was established in 2008 with the help of the International Bar Association (IBA), the London-based organization that comprises 190 bar associations from countries around the world. In addition to developing a standardized pathway to professional legal practice in Afghanistan, a key aim in creating the AIBA was to champion such values as the rule of law and equal access to educational and professional opportunities—lofty goals in a country where just a few years prior, women had been cut off from even leaving their homes freely.

In November, the Afghanistan Ministry of Justice announced plans to absorb the AIBA, bringing it squarely under Taliban control. Shortly thereafter, armed forces stormed and took control of the AIBA headquarters. A group of the embattled organization’s members who had remained in the country after the US withdrawal organized a press conference to raise awareness of the imperative of an independent legal profession. As they prepared to broadcast live from a Kabul hotel, armed gunmen surrounded the building, forcing participants to flee. Trailed by threats of arrest and fears of violence—against themselves and their families—some of these lawyers continue to remain in hiding weeks later.

Amid the fallout of the decision to strip Afghanistan’s legal profession of its independence, the IBA has sounded the alarm, reaching out to the highest echelons of the United Nations to seek support for the country’s beleaguered lawyers.

JURIST Features Editor Ingrid Burke Friedman spoke with IBA Executive Director Dr. Mark Ellis about his organization’s response to the current crisis, as well as his hope that as the international community comes to grips with the Afghanistan crisis, the women and men on the frontlines of Afghanistan’s nascent independent legal profession will not be forgotten.

JURIST: What role did the International Bar Association play in helping to establish the Afghanistan Independent Bar Association in 2008?

Ellis: We were involved from the start as partners, providing an array of programs, assistance and financial support, to help Afghanistan’s lawyers build and run their own bar association. …

Over time, the relationship evolved from a partnership to the sort of relationship the IBA has with its almost 200 other member associations; and the reason that was important is because it indicated that the bar had become exactly what it wanted to become—an independent bar association based on principles of justice and international principles of rule of law, and on supporting the rights of women and supporting human rights in general.

JURIST: What was your response upon learning that the Taliban-controlled Ministry of Justice had decided to take control of the AIBA?  

Ellis: [When] the MOJ came in and decided that it was going to incorporate the bar association into its domain… I knew that the [AIBA] that we had supported, and partnered with, no longer existed. Then there was the announcement that the association would no longer have any involvement with licensing lawyers—that this responsibility would also be taken over by the MOJ. That suggested that the organization had lost all independence.

JURIST: On November 23, several days after the AIBA decree, armed Taliban forcibly seized control of the AIBA headquarters. In the aftermath of the takeover, what are some of your chief concerns?

Ellis: A major concern is the that the MOJ has obtained the AIBA database. That was a huge red flag because it includes a lot of sensitive information that’s now in Taliban’s possession. There’s a lot of information in the database and the Taliban has it all. [It] contains confidential information about the work these lawyers have done, and that could be a death sentence.

Another concern is that the Taliban also has possession of the AIBA’s bank account, along with all the money in the account. Some of the AIBA leadership now in exile are pushing to regain control of the database and the bank account, but of course, chances of that happening are slim.

JURIST: What are IBA’s strategies for mitigating some of the harm caused by the Taliban’s seizure of the database and bank accounts?  

Ellis: [Following the MOJ decision to take control over the AIBA], the IBA decided that we would reach out to the United Nations, directly to the Secretary-General, indicating that the Taliban’s takeover of the AIBA obviously violated international principles. The most important one would be the UN principles on the role of lawyers… [which] require that legal professionals must be able to function without any intimidation. They should not be harassed or interfered with in any way. They have to be independent. All of these protections are now being violated by the Taliban. We have set out our position on those basic principles because they are the most relevant to the United Nations, to the international Bar Association and to the legal profession as a whole.

The reason we contacted the UN is because that is the entity that will engage directly with the Taliban. And any concessions that are going to be made will be made through the UN. We have now requested that the UN brings this issue to the forefront in any discussion with the Taliban to ensure that the issues involving the database and the bank account are resolved, and not to compromise on those issues, and to use them as leverage over the Taliban in the event the UN decides to support them in certain legal areas.

We also plan to reach out to governments and bar associations in the region that we anticipate to have some interactions with the Taliban, whether by way of official recognition or engagement with them. We will ask these organizations to speak out on these issues as well.

I’m not naive enough to think that the Taliban is going to rescind its order that that the bar will no longer be independent. That’s not going to happen. But there could be sufficient pressure to at least return the AIBA’s database and perhaps return the financial resources. I’m sure some organizations will be pushing to retain an independent legal profession. But sadly, those efforts are not likely to be fruitful considering the reality on the ground.

JURIST: In addition to sounding the alarm before the UN Secretary-General and working to raise awareness of lawyers facing persecution, we understand that IBA has helped facilitate evacuations. Can you tell us more about those efforts, and how you expect to work with the evacuated individuals going forward?

Ellis: We managed to help about nine individuals and their families to evacuate. This core group included women judges, human rights activists, and other particularly vulnerable individuals. The IBA’s Human Rights Institute evacuated over 100 women judges. They focused aggressively on that group because of concerns of Taliban retributions, so their numbers are very high. They are currently moving to the next stage of trying to help these women settle in different parts of the world.

I want to work towards creating an AIBA in exile. My view is that there are a number of members of the Afghan legal profession who are now out of Afghanistan, or who remain in the country, including a significant number of women judges, who will want this type of entity. My idea is to create an entity where all of these judges and lawyers can come together and create a community. It will allow the diaspora to focus on and work through issues in the same way they did in Afghanistan.

JURIST: What advice do you have for independent lawyers who remain in the country, and for the international community as it considers strategies aimed at abating the crisis?

Ellis: My first inclination would be to say they should focus on surviving. We know there are many people in the country that are in hiding, and whose lives are in danger. We are still helping them financially and providing support for a small number of these lawyers, but of course that doesn’t resolve the bigger issue. There are thousands of members of the bar association, and they certainly didn’t, and will not, get out.

At this point, the international community needs to understand that the lives of these people who envisioned an Afghanistan rooted in the rule of lawhuman rights defenders, lawyers, judges—are still in danger.

Dr. Mark Ellis has served as Executive Director of the International Bar Association (IBA) for the past two decades. Previously, he served as the first Executive Director of the Central European and Eurasian Law Initiative (CEELI), an American Bar Association initiative. He has also served asLegal Advisor to the Independent International Commission on Kosovo and Chair of the UN created Advisory Panel on Matters Relating to Defence Counsel of the Mechanism for International Criminal Tribunals, among other positions.