Transition Without Justice? The Return of the Taliban and the Quest for Truth, Accountability, and Reparations

[Julia Emtseva is a Research Fellow at the Max Planck Institute for Comparative Public Law and International Law.]

The recent developments in Afghanistan shocked the whole world. With the US withdrawal from the country, the Taliban rapidly swept across Afghanistan and took over Kabul. With no clear prospects of the country’s development, the issues of justice are acute as never before. After the failure of past attempts to transitional justice (TJ) in Afghanistan, the delivery of justice cannot be again postponed in the name of peace and stability. Yet, with the unstable situation in the country together with the unclear status of the Taliban-led government, legal questions arise with regards to who has the responsibility to punish, compensate, and find the truth. This short piece aims at discussing whether the Taliban bears TJ obligations and offers viable options for bringing justice to the victims not only by local actors but also by the international community.

Background

The situation in Afghanistan is extremely complex and tangled. To blatantly simplify, the conflict in the country so far has had four phases. The first started with a violent revolution in 1978, in the aftermath of which Soviet troops occupied the mountainous state. The period of Soviet occupation was accompanied by forced disappearances, mass killings, and forced displacement of civilians and opposition figures who were suspected to be close to the Islamists. The second phase began in the late 1980s with the formation of the Mujahedeen governments, which ended up fighting each other. During this civil war, another round of serious human rights violations occurred in Afghanistan. The third stage started with the emergence of the Taliban movement, which ended with the Taliban taking over control over the country from 1996 to 2001. During this period, women and minority groups were the primary targets of human rights violations. The Taliban’s reign ended after US troops, in the aftermath of 9/11, entered Kabul in November 2001. That December, the Taliban fled from Kabul and shortly after surrendered their last-controlled territories. Hamid Karzai was sworn in as the new leader of the interim government of Afghanistan.

Since then, a few local TJ attempts have been initiated, but with little success. One of the reasons for these failures was the reluctance of the UN to address the issue of TJ in its resolutions. As a result, no UN mechanism was created to deal with collecting evidence and building criminal cases. This reluctance is rather understandable as the UN was an organizer of peace talks and a drafter of the peace agreement, parties to which were all involved in human rights abuses throughout different stages of the Afghan protracted conflict.

Now Afghanistan enters a new uncertain and disturbing phase. Despite how complex the current situation in the country looks, justice issues cannot be overlooked again. The question, however, remains: who will take up the duty to initiate justice processes? International legal obligations should be imposed on someone – whether this someone is the Taliban will be discussed below. 

Is the Taliban a Government?

Before analyzing the prospects of TJ in today’s Afghanistan, it is important to understand who bears the obligation to bring about justice, truth, and reconciliation to the country.  While in usual settings TJ is supported by the government, in the case of Afghanistan the situation is perplexing and far from straightforward. First and foremost, it is unclear whether the Taliban can qualify as an official Afghan authority.

The fled president, Asharaf Ghani, has not claimed to still be in charge of the country, and it seems that he is accepting the de facto rule of the Taliban. The US has mentioned that the Taliban’s legitimacy has to be ‘earned’, but the legitimacy of a quasi-government that came to power through force is not easy to ‘earn’. The situation with the Taliban’s status could be clearer with its recognition by the international community; however, the absence of recognition is not a game-changer. In Tinoco Concessions, arbitrators observed that non-recognition cannot outweigh de facto control of most of the territory of a state. The recent practice of some states also confirms that recognition is not a necessary source for decision-making on whether to enter into diplomatic relations. The UK, for instance, decided in 1980 that “there are practical advantages in following the policy of many other countries in not according to recognition to Governments. Like them, we shall continue to decide the nature of our dealings with regimes that come to power unconstitutionally in the light of our assessment of whether they are able of themselves to exercise effective control of the territory of the State concerned, and seem likely to continue to do so.” However, states that chose this policy of non-recognition do not always adhere to it, like the UK in Libya, recognizing the National Transitional Council to be the legitimate government of the country. Diplomatic recognition, however, must be separated from formal recognition of governments and it remains an option, which is often used in conflict situations, like the current crisis in Afghanistan.

Entering and maintaining diplomatic relations depends on various factors and policies of different states, but perhaps more important elements are the capacity and willingness of the new government to respect and fulfill international legal obligations as well as the legitimacy of coming to power. These criteria play an increasing role as states often support and maintain relations with governments in exile.

While there is little doubt that the Taliban came to power using illegitimate and undemocratic means, uncertainty exists with regards to the Taliban’s willingness and capacity to honor international legal obligations, most and foremost human rights – the criterion so necessary for the further discussion on TJ.

Despite the Taliban’s recent pledges to respect human rights and freedoms, the past shows that there is not much hope for that, especially among women and minority groups. Yet only time will show how the Taliban will continue its rule. Perhaps the nearest indicator of the Taliban’s commitment to its international obligation will be its reaction to the recent UNSC Resolution, which calls for seeking a political settlement with the participation of women, safe passage out of the country as well as immediate reactions of the relevant parties to the terrorist threats.

As for the time of writing this post (September 4, 2021), it seems that already some states have expressed their readiness to collaborate with the Taliban – a sign of eventual de facto recognition of the Taliban-led government. The US military stated that they plan to co-operate with the Taliban to fight the IS, while Russia and China even leaned forward to the official recognition.

Another important question is whether the Taliban bears international legal obligations. The ICJ explained that “[p]hysical control of a territory, and not sovereignty or legitimacy of title, is the basis of State liability for acts affecting other States.” However, the situation with human rights obligations is not that straightforward. The complete and uncontested international legal personality (ILP) of de facto regimes is still dependent on recognition by “actors who that have previously attained this status themselves.” Therefore, full compliance with international standards and obligations can be required from the Taliban only when they are properly integrated in the international legal order and granted the capacity to participate in international decision-making. Yet, their limited international legal personality still implies that they have rights (self-defense) and duties like respecting fundamental human rights. That being said, it is important to understand whether transitional justice can be seen as a fundamental right of Afghans given the unclear ILP of the Taliban.

Transitional Justice Prospects

Transitional justice covers a wide range of measures to bring about justice to the victims of gross human rights violations. While it is impossible to name all TJ tools in this post, it is also not feasible to analyze them. Yet, TJ generally has four main pillars: criminal prosecutions, truth-seeking, reparations, and guarantees of non-repetition. While the rights to seek justice and reparations are less controversial, with multiple treaties and international organizations confirming their ‘fundamental’ status, the situation with other core TJ tools is not that straightforward. More and more attention has been paid to the right to the truth as it became a central right in some Inter-American Commission’s/Court’s cases. Moreover, the Council of Europe recognized the fundamental right to the truth in the context of the Yugoslavian conflict. Although there is no explicit mention of the right to the truth in any universal legal instrument (except for the Set of Principles to Combat Impunity), there is a solid basis to argue that this right might possess customary nature due to repeated and widespread practice of HR bodies and international courts to acknowledge this right and to order the establishment of truth-seeking mechanisms. Guarantees of non-repetition, in turn, being inter alia an action to facilitate the enjoyment of basic human rights, although mentioned in ARSIWA’s article 30(b), have little mandatory force due to their wide range of measures, including “mere promises or undertakings.” Therefore, it is hard to claim that there is a fundamental right to guarantees of non-repetition.

Having identified that the Taliban bears certain obligations of bringing justice to people under its control, the more complex question arises: will they actually do it? This cannot be answered by a simple yes or no, since predicting the Taliban’s behavior is a doomed mission. Transitional justice in Afghanistan is particularly tangled given the multiplicity of actors involved in violations throughout the last 40 years. Also, the fact that the Taliban is one of the perpetrators leaves not many hopes for a just, transparent, and adequate transition. Yet, as mentioned earlier, if the Taliban wants to acquire legitimacy not only in the eyes of the international community but also the Afghans, it has to address violations and initiate various processes directed at bringing justice to victims. Moreover, ignoring justice issues could trigger internal disturbances by people craving for ending impunity, which could destabilize the situation in the already so vulnerable country.

If the Taliban decides to move forward with its self-designed TJ scheme, they would also have to seek assistance from the international community. This would be one of the key elements in their fight for acknowledgement of their legitimacy. Yet, with the scarce hopes for this to happen, the international community should not stand aside and just wait. Especially, additional support should be provided to women, minorities, and human rights defenders, as they are the ones who will be ignored or even abused should the Taliban move forward with customary laws. The action should be urgent, however, well-conceived and carefully handled to avoid mistakes made in the past.

The ICC’s investigation in Afghanistan is already a promising step to punish the perpetrators affiliated with different groups that were involved in heinous crimes against the Afghans. Following the example of Syria, new doors for criminal prosecutions can be opened through universal jurisdiction (although there are already a few opened cases against Afghan nationals accused of war crimes). Evidence is being collected by multiple human rights organizations but more efforts, especially by the UN, should be undertaken to investigate the recent events and crimes committed by the Taliban. So far, the Human Rights Committee together with the UNSC had failed to meet the expectations of delivering a stark response to the current crisis in Afghanistan. Therefore, documentation movements are vital in justice and truth-seeking initiatives as they prevent history to be distorted and evidence vanished.

Putting perpetrators on trial is not the only option available to the international community. Reparations, in their various forms, could also help victims to survive the period of transition. Global Survivors Fund’s interim reparation model can become a route for helping Afghan women and girls. Together with the Fund, victims design collective or individual reparation programs, which can combine livelihood support, rehabilitation as well as financial help. Additionally, in the era of the internet and technologies, online education for girls can be offered should the Taliban bar access to schools for them.  

What can be done on the individual level? Besides donating money to trustworthy organizations, the most important is to spread information and not to forget victims in Afghanistan. By keeping their stories alive, we can prevent this crisis from being forgotten by states and the UN. Additionally, signing and promoting petitions aimed at protecting vulnerable groups is also a sign of support, which can also bring results. If you read this post until this sentence, I ask you to consider signing this petition, carefully written by several Afghan human rights defenders, whose aim is to call the UN, OHCHR, EU, OAS, and AU to take action and ensure people’s safety in Afghanistan. Global solidarity empowers starker responses by key actors and the Afghans need both. The decades-long sufferings of people should end and we all have our small roles to play in achieving this.