A Call for Accountability: Violations Against Victims in Afghanistan Are Violations Against Us All

[Mohibullah Taib is a Human Rights Counsellor at the Permanent Mission of the Islamic Republic of Afghanistan to the United Nations Office and other international organizations in Geneva. Meera Nayak is a Human Rights Consultant at the Permanent Mission of the Islamic Republic of Afghanistan to the United Nations Office and other international organizations in Geneva.]

Since the Taliban’s unlawful takeover of Afghanistan, the United Nations Human Rights Council held a Special Session, an Urgent Debate, and an Enhanced Interactive Dialogue. The former U.N. High Commissioner for Human Rights and the Special Rapporteur on the situation of human rights in Afghanistan have visited the country. Countless recommendations have been made. The Council has adopted four resolutions, most recently, renewing the mandate of the Special Rapporteur at its 51st Regular Session. The resolution’s strong language, incorporation of “a child’s rights perspective,” and expansion of the mandate to include “the responsibility to document and preserve information relating to human rights violations and abuses” are promising, positive steps in the right direction. However, given the nature and extent of violations taking place, accountability requires a more robust approach, namely — the immediate establishment of an independent investigative mechanism.

Until now, States have adopted a softer approach to the human rights situation in Afghanistan, maintaining hope for positive progress by the Taliban. States are still under the view that more time is needed for the de facto authorities to change course. However, after over one year, the Taliban have not kept their promises and have unequivocally proven that they will not do so — failing to meet the terms of the Doha Agreement and the European Union’s essential benchmarks for engagement.

Instead, systematic violations and abuses of human rights accumulate by the day. Girls are still barred from attending secondary schools, victims of gender-based violence are denied access to justice, the media remains largely restricted, human rights defenders disappear, and minorities continue to be the subject of horrific attacks. The atrocious attack on the Kaj educational centre, killing and injuring innocent children — with dreams to serve and lead — in a Hazara community area in Kabul is one in a disturbing, escalating pattern that have not been met with effective, thorough, and independent investigation. The failure of the international community to adequately respond risks reinforcing the culture of impunity and encouraging worse atrocities.

Acts of inhumanity by the Taliban or other groups cannot and should not be linked to the cultural and religious particularities of the people of Afghanistan. Yet, China and Venezuela introduced six amendmentsin an attempt to dilute the resolution and Belarus joined the leadership of three of them. They were supported by States including Russia and Pakistan, but ultimately rejected by the Council.

While some States are concerned that a dedicated independent investigative mechanism could harm their own interests, this concern is misguided. The principal issue is the rights at stake for over 30 million people, the violations of which this Council was created to address.

The Council’s inability to answer to the gravity of the situation could open a dangerous door, paving the way for weaker responses to existing or future situations of serious violations of international human rights law and international humanitarian law. It risks regression back to the Commission on Human Rights, where double standards were maintained to address human rights crises at the cost of stronger human rights protection.

The resolution emphasizes “the specific access provided to the Special Rapporteur” to the territory of Afghanistan, which is welcome. Still, a parallel independent investigative mechanism has distinct added value.

The country-specific Special Rapporteurs were established for the purposes of monitoring, receiving and acting on information, supporting civil society, making recommendations, assisting with the implementation of human rights obligations, and reporting on human rights situations in specific countries. They have their own Code of Conduct and Manual of Operations. Investigative mechanisms are guided by their own principles, policies, practices, and methodologies⁠ — from the protection of victims to information management.

The resolution allows for “additional dedicated and specific resources and expertise to be provided by the Office of the High Commissioner, in particular in the areas of fact-finding, legal analysis, forensics, the human rights of women and girls and of persons belonging to minorities, the right to education, torture and other cruel, inhuman or degrading treatment or punishment, and additional resources for children’s rights, translation, documentation, information- and evidence-gathering and -preservation” for the Special Rapporteur. The resolution also requests the OHCHR to provide “assistance and resources necessary for the effective fulfilment of the mandate.”

However, none of the mandates of the current country-specific Special Rapporteurs (Belarus, Burundi, Cambodia, the Central African Republic, the Democratic People’s Republic of Korea, Eritrea, the Islamic Republic of Iran, Mali, Myanmar, the Palestinian occupied territories, Somalia, and the Syrian Arab Republic) include the capacity or resources that match the level of groups/teams/international commissions of human rights experts, independent international commissions of inquiry, independent fact-finding missions, or independent investigative mechanisms established by the Council, including the present ones for Nicaragua, Ukraine, Ethiopia, the Occupied Palestinian Territory, including East Jerusalem, and in Israel, Belarus, Libya, Venezuela, Myanmar, the Syrian Arab Republic, South Sudan, and the Democratic Republic of the Congo.

In the case of Myanmar, the Special Rapporteur, during his mandate, recommended “an accountability mechanism” with a concept note, after which the Council established an Independent Investigative Mechanism for Myanmar that has a detailed Terms of Reference.

Afghanistan could greatly benefit from the approach by the Council in its establishment of the Independent International Commission of Inquiry on Ukraine, which is mandated:

• “to investigate all alleged violations and abuses of human rights and violations of international humanitarian law, and related crimes…and to establish the facts, circumstances and root causes of any such violations and abuses”;
• “to collect, consolidate and analyse evidence of such violations and abuses, including their gender dimension, and to systematically record and preserve all information, documentation and evidence, including interviews, witness testimony and forensic material, consistent with international law standards, in view of any future legal proceedings”;
• “to document and verify relevant information and evidence, including through field engagement, and to cooperate with judicial and other entities, as appropriate”;
• “to identify, where possible, those individuals and entities responsible for violations or abuses of human rights or violations of international humanitarian law, or other related crimes…with a view to ensuring that those responsible are held accountable”; and
• “to make recommendations, in particular on accountability measures, all with a view to ending impunity and ensuring accountability, including, as appropriate, individual criminal responsibility, and access to justice for victims.”

In the same resolution, the Council further requested “the immediate operationalization of the mandate” and requested “the Secretary-General to provide all the resources necessary to enable the commission of inquiry to carry out its mandate and the resources and expertise necessary to enable the Office of the United Nations High Commissioner for Human Rights to provide such administrative, technical and logistical support as is required to implement the provisions of the present resolution, in particular in the areas of fact-finding, legal analysis and evidence-collection.”

There are several advantages to the establishment of an independent investigative mechanism for Afghanistan. First, it would enable effective independent documentation in a climate in which meaningful monitoring by NGOs, U.N. bodies, and a dissolved national human rights institution has become impossible. Access to places where violations and abuses are taking place is limited and victims have nowhere to turn. For example, in provinces of Panjshir, Parwan, Kapisa, Baghlan, Takhar, Kandahar, Saripul, Nangarhar, and Samangan, torture, ill-treatment, mass killings, arbitrary detentions, and forced displacement are being carried out. Recent reports by UNAMA and organizations such as Amnesty International and Human Rights Watch reveal only a fraction of the devastating picture. An investigative mechanism would not only generate a historical record of events, but also enable the international community to take informed action following receipt of credible information and analysis.

Second, such a mechanism would be equipped with adequate staff, training, guidance, expertise, tools, and support. Advances in technologies for collecting and storing digital information can ensure that evidence can be securely preserved, organized, and authenticated.

Third, it would allow for greater coherence within the human rights system. It is an opportunity for increased coordination and systematization with the work of mandate holders, the International Criminal Court, and civil society organizations working with victims.

Finally, by generating the possibility for further investigations, its long-term value for the pursuit of justice and prevention cannot be understated, for instance, for future national or international investigations and trials. The Taliban have taken no steps to investigate, the judicial system has collapsed, and rule of law has been dismantled. There is no indication of future national justice efforts, while there is a delay in proceedings at the ICC, leaving a clear gap in accountability. The time and environment are ripe for this first and crucial step towards holding perpetrators accountable and providing victims with redress.

Throughout his work so far, the Special Rapporteur on Afghanistan has repeatedly called for the need for more accountability and full and transparent investigations, amplifying the voices of brave human rights advocates, civil society activists, victims, survivors, women, and minorities.

Now is the time for the international community, and the human rights system in particular, to respond commensurate with the situation on the ground, which continues to proceed on a dark and deeply alarming trajectory. Even if justice is not a perfect solution to durable peace, allowing the Taliban to reign freely would further vindicate their rule of terror and oppression. The people of Afghanistan will otherwise remain unheard, their pain and suffering unacknowledged. Promoting and protecting universal human rights requires elevated action by the Council. Accountability is not only our common responsibility, but also a means to ensure the tragedy in Afghanistan is not repeated anywhere else in the world.