The United Nation’s Human Rights Council is holding a Special Session on Tuesday (24 August) to discuss the human rights situation in Afghanistan – both past and present. The resolution they will be considering has been drafted by Pakistan, the Taleban’s main international backer. Pakistan is currently the human rights coordinator of the Organisation of Islamic Cooperation which the former Afghan government had asked to sponsor the session. One leading human rights organisation has called the resolution “disgraceful”; far from creating a Fact-Finding Mission or Commission of Inquiry that would have robust, long-term powers to monitor and investigate grave human rights violations, the OIC resolution merely proposes that the High Commissioner reports back to the Human Rights Council in nine months’ time, in March 2022. Rachel Reid and Ehsan Qaane investigate why, in the middle of a human rights crisis, the United Nation’s leading human rights body is about to signal to the world that the Taleban’s seizure of power should be met by nothing more than ‘business as usual’. On the day that Kabul fell, teenage girls were still going to school: Will ir last? Photo: Wakil Kohsar/AFP, 15 August 2021.
Update: The Human Rights Council did pass the Pakistan-drafted, Organisation of Islamic Conference (OIC) resolution in its draft format, with just one revision: it requested the High Commissioner to give them an oral report at the next council session – in September, rather than March 2022. Shaharzad Akbar, chair of the Afghanistan Independent Human Rights Commission, who had addressed the council, tweeted her frustration at the outcome:
An oral update by the High Commissioner? Seriously? Is that all you can do @UN_HRC? What does this council do for countries suffering a human rights crisis? Can someone remind the Member States why this council exists?
Sam Zarifi, Secretary General of the International Commission of Jurists called the Human Rights Council’s response “shameful.” He accused the OIC of showing “no sympathy for Afghans.” As to the other Council members, he said “nobody else could muster [the] will to act.”
The background for tomorrow’s debate (24 August) goes back to well before the Taleban takeover. Earlier this year, pressure had already been increasing for a stronger response by the UN to an escalation of human rights and conflict-related abuses in Afghanistan. However, the Taleban’s seizure of power has made the need for action all the more pressing.
Human rights actors had been pressing for a United Nations mandated Fact-Finding Mission to investigate atrocities and human rights violations in Afghanistan since the massacre of school girls at Sayed ul-Shuhada school on 8 May 2021 in the Dasht-e Barchi neighbourhood of west Kabul (media reporting here). The attack, which was never claimed, killed or injured more than 300 people, most of them girls, and to all observers looked to be the latest sectarian attack on Hazaras.
A Fact-Finding Mission has a mandate to collect evidence and investigate perpetrators as well as document the victims, that is, it has many more powers than the Kabul-based UNAMA human rights team. The pressure for a stronger response from the United Nations was triggered not only by the school massacre, but a wave of other atrocities against Hazaras and Shia Muslims, including an attack on the maternity hospital caring mostly for Hazara mothers and babies in May 2020, as well as an escalation of targeted killings of journalists, human rights defenders and religious leaders over winter 2020/2021, and a rise in civilian casualties in the war. The Afghanistan Independent Human Rights Commission (AIHRC) said the investigations required were beyond the capacity of the commission, government or UNAMA to investigate; outside help and support was needed. Their request was either for a Fact-Finding Mission or a Commission of Inquiry, both similar mechanisms, their functions depending on their individual mandate. (See AIHRC’s statement for more details.)
President Ashraf Ghani’s government initially procrastinated, no doubt wary of additional accountability mechanisms that might implicate its own forces – following its failed battle to hold off an investigation by the International Criminal Court. Human rights actors therefore sought member states at the Human Rights Council who could sponsor a resolution to create the new human rights mechanism. Twenty Afghan and international human rights groups issued a call to the UN to act on 3 July 2021. On 7 July, the High Commissioner for Human Rights, Michele Bachelet, added her voice, urging the Human Rights Council to move: “Given the rapid deterioration of this situation, I encourage the Council to increase its monitoring and to consider mechanisms for an effective prevention response.” On 9 June, the European parliament echoed this call, citing the atrocity at the girls’ school and other human rights concerns, and urging a Commission of Inquiry be established by the UN’s Human Rights Council (resolution text here). Several member states were supportive of the idea, including Italy, but wanted any resolution to be co-sponsored by the Afghan government. A group of 15 UN Special Rapporteurs and experts on 16 August issued a statement calling for the speedy establishment of a fact-finding mission. One of the Rapporteurs, Fionnuala Ni Aolain, UN Special Rapporteur on Human Rights & Counter-Terrorism, issued a frank warning to the council on Twitter on 23 August:
A meaningful, relevant and operable statement is needed from the @UN_HRC this week of Afghanistan. Anything less is a green light on impunity for serious violations of IL which may include war crimes and crimes against humanity.
The European Union and sympathetic member states said in briefings with NGOs that they wanted the initiative to be led by the Afghan government. Human rights actors had qualms about this, given the fact that the Afghan government was itself a party to the conflict, so the prospect of a government-sponsored resolution being balanced and including all conflict actors was low. However, in the cautious culture of the Human Rights Council, this kind of approach is not uncommon.
It was only in early August that the Afghan government came on board, as the domino of districts lost to the Taleban became overwhelming and the fall of provincial capitals inevitable. On 6 August, then Foreign Minister Haneef Atmar called for a Fact-Finding Mission when he spoke to the UN Human Rights High Commissioner; he highlighted Taleban abuses. The government then also started to look for sponsors to call a special session of the UN Human Rights Council. Deputy to the Afghan permanent representative to the UN and other international organizations in Geneva, Shoaib Timory, on 22 August, confirmed to AAN that their aim was to get a mandate for a UN Fact-Finding mission to investigate the recent alleged violations of human rights and humanitarian law by the Taleban. For example, he named the alleged mass killing of government officials by the Taleban at Spin Boldak, where it was reported by Human Rights Watch that 44 officials were summarily executed, as one of many violations that needed investigating (AIHRC report about the incident here).
Less than two weeks later, on 15 August, the Taleban captured Kabul. They have yet to form a government and even when they do, recognition of their administration is not automatic. The Taleban’s 1996-2001 government was never recognised – except by Pakistan, Saudi Arabia and the United Arab Emirates. Rather, it was Burhanuddin Rabbani’s Islamic State of Afghanistan’s administration, established after the Soviet withdrawal in 1989, that continued to be the official government of Afghanistan, to post diplomats and print money. In the current situation, ambassadors and permanent representatives appointed by the former government are still in place and can lobby for the stronger human rights mechanisms to be established.
The need for action
Although we are only a little more than a week into the Taleban’s new regime, the need for a strong UN human rights mechanism is clear. The Taleban have made some promises to protect human rights, or at least not to abuse them, but many are skeptical over whether these will be fulfilled. For example, they have offered a general amnesty to members of the Afghan National Security Forces (ANSF) and government officials (media report here). However, reports of house-to-house searches, of the Taleban creating ‘wanted’ lists and of some reprisal killings have created an environment of acute anxiety over the Taleban’s real intentions (see, for example, New York Times reporting that quotes former officials and a confidential UN report). Other groups of Afghans also have particular cause for concern: most prominent Afghan women’s rights defenders, for example, and many journalists are now in hiding or self-censoring, fearing for their safety.
Another example is the Taleban’s voiced commitment to respect women’s rights – albeit “within the framework of Islamic law” – without specifying exactly what they might allow or ban. Afghan women’s views and experiences are extremely varied, of course, and not all women have been able to access the legal rights they held under the Republic; on this, see Martine van Bijlert’s nuanced reporting in AAN’s “‘Between Hope and Fear: Rural Afghan women talk about peace and war”, published in July. However, if the Taleban curtail those legal rights, Afghan women will have even less room for manoeuvre. The Afghan Women’s Network has voiced the views of many in an open letter on 30 June describing the Taleban as a group “that took all rights from women and still have not evolved in their views of treating women.” On 9 August Mahbouba Seraj, a prominent women’s rights defender and executive director of the Afghan Women’s Skills Development Centre, spoke frankly about her anger and sense of abandonment in an interview on TNT World:
I’m going to say to the whole world shame on you… We talked to you, we demanded, we asked, we did everything. And nobody paid any attention, they just made decisions, with their gut feelings, all of these men in power, and they are destroying something that we worked so hard for. What is happening in Afghanistan today is going to put us 200 years back.
Given the Taleban’s record in government in the 1990s and early 2000s and in areas under their control more recently, it can be assumed that there will be a new struggle for women’s rights in education and employment. Perhaps most significant to this question is whether women will be allowed any continuing public face in politics or government or the media. There was an early glimpse of women’s likely exclusion, when a female news anchor for state TV, Shabnam Khan Dawran, released this video on 20 August saying she had been barred from returning to work by the Taleban. Her colleague, Khadija, also said she was barred from work, with a report that the Taleban in Ghazni had banned both female presenters and music from the broadcast media. Women reporters and anchors with Tolo News initially continued to work and appear on screen in the first days after the fall of Kabul, but like other channels, women have now disappeared off air.
Ultimately, whether women are allowed a ‘public face’ will be fundamental to their pushing for their wider rights protected. And in general, who has power in the new Afghanistan will determine which Afghans have a voice, can affect the policy or expect protection.
In this time of uncertainty and fear, many of the bodies and sections of society that were trying to hold to account the former government, international forces and the Taleban, can no longer operate. The offices of the AIHRC have been taken over by the Taleban and their staff fear for their lives. UNAMA did have a strong human rights team, but its staff are evacuating to leave a bare minimum in Kabul. Another sector which had played an important role investigating and sounding the alarm about human rights violations, the independent media and non-governmental human rights organisations, are, for now largely silent on this. UNAMA, meanwhile, is likely to be affected by the wider pivot of the UN in Afghanistan towards humanitarian concerns, which is likely to mean that sensitive human rights demands are deprioritised in favour of maintaining relations with the Taleban to ensure access for humanitarian agencies. UNAMA’s mandate is up for renewal at the UN in September. Their role is as vital as ever in this context, particularly their human rights reporting, but it is too soon to say how they will fare in this next, critical, mandate renewal discussion. While it is unlikely that a Taleban government would be represented at the UN General Assembly in September, it can be assumed they will use their leverage over UN agencies wanting humanitarian access to negotiate wider UN issues. All of this points to the urgent need for a UN Fact-Finding Mission or Commission of Inquiry to investigate and report on human rights violations. These, however, have to be proposed and approved by the UN Human Rights Council.
One body that is currently investigating crimes against humanity and war crimes in Afghanistan is the International Criminal Court (ICC). It conducted a lengthy preliminary investigation into the record of the Taleban, and international and Afghan government forces – in the conflict. The ICC Prosecutor found there were grounds for investigating the US and Afghan government forces over their use of torture, and the Taleban for a much longer list of crimes against humanity – murder, imprisonment or other severe deprivation of physical liberty and persecution on political and on gender grounds – and war crimes – including murder, torture, outrages upon personal dignity, intentionally directing attacks against civilians, intentionally directing attacks against a humanitarian assistance or peacekeeping mission, rape and other forms of sexual violence, and conscripting or enlisting children under the age of fifteen years.
Last year, the court authorised an ICC investigation into possible crimes against humanity and war crimes that have taken place in the context of the Afghan conflict; this would cover the years from 2003 when Afghanistan became a state member of the ICC and has no cut-off date. However, that investigation will take years and most of its findings will remain confidential until any final verdict. It is no substitute for a contemporaneous human rights mechanism like a Fact-Finding Mission that can monitor and deter human rights violations.
A Special Session with an empty resolution
When the Afghan government finally decided it did want a Fact-Finding Mission or Commission of Enquiry in early August, it first tried to get a European member of the Human Rights Council to endorse a Special Session. After failing to do that, it turned to the Organisation of Islamic Cooperation (OIC). It got its special session to look into the Afghan situation. It is scheduled for 10 o’clock Central European time (1230 in Afghanistan) on 24 August. However, involving the OIC is proving to have been a diplomatic error by the former Afghan government.
Getting a Fact-Finding Mission was the reason why the Afghan government asked for a Special Session, but it is entirely absent in the draft of the resolution prepared by the OIC in Geneva. The draft text, which can be read in an annex to this report, was drafted by Pakistan, the current OIC human rights and humanitarian law coordinator, and the Taleban’s main external backer. The resolution stresses “the need for transparent and prompt investigation into reports of all violations and abuses of international human rights law,” but provides no mechanism. It simply requests that the High Commissioner reports to the council in nine months’ time, in March 2022.
The Human Rights Watch representative in Geneva, John Fisher, who has followed the diplomacy around this resolution closely, called the draft “disgraceful.”
The people of Afghanistan, in this time of need, are looking to the Human Rights Council to protect their human rights, to ensure there is a meaningful mechanism that can scrutinize allegations of abuses, investigate and hold perpetrators to account. Instead this resolution proposes more of the same, it doesn’t create a mechanism, advance accountability, or enhance the capacity of the High Commissioner for monitoring and evidence gathering. All it requests is a report from the High Commissioner in six months from now which the High Commissioner already does.
Chris Sidoti, an international human rights lawyer and member of the Myanmar Fact-Finding Mission, told AAN that the situation in Afghanistan more than warrants a special session:
I fear the session will be an abject failure. It will fail unless it decides to act decisively to promote justice, accountability and human rights for the people of Afghanistan, especially for women and girls and for ethnic and religious minorities.
Decisive action, says Sidoti, would mean a new human rights mechanism, the condemnation of human rights violations by all parties to the conflict and a reaffirmation that all those who want to leave Afghanistan should be free to do so, without harm or penalty, in accordance with their fundamental human rights. None of these elements are in the draft text seen by AAN.
The Afghan mission in Geneva is not happy with the OIC resolution. It has told AAN there is still a window for other states to come forward with a stronger position in favour of a practical accountability mechanism for human rights violations and abuses. No state has done this, although it is entirely within their power. This may in part be because several member states, who would normally be sympathetic, are entirely focussed on evacuating their nationals and other at-risk Afghans from Kabul; they may lack the bandwidth to take on this issue or fear putting the evacuation at risk by antagonising the new Taleban authorities.
The United States is probably influential in the background; there are certainly elements in government there which are reluctant to have a Fact-Finding Mission that would not just be investigating potential Taleban war crimes, but also previous violations by other parties to the conflict, including US forces. The background to this is the United States long resistance to the International Criminal Court’s investigation in Afghanistan, as AAN has previously reported. This stance has softened under the Biden administration – it lifted Trump-era sanctions against ICC staff – but the US is still opposed to the ICC investigating US citizens. Washington is no doubt still concerned about an additional human rights mechanism that might have retrospective powers.
In negotiations in advance of the debate at the Human Rights Council on August 24, the EU and other states proposed, belatedly, that the resolution could be strengthened with a Special Rapporteur. Afghanistan has had four Special Rapporteurs before, one of whom, Cherif Bassiouni (2003-05), did not get his second term (typically this is routine) after he reported that US forces were “engaging in arbitrary arrests and detentions and committing abusive practices, including torture.” In UN terms, the Special Rapporteur is a weak mechanism, with fewer powers and a tiny staff allocation (as little as ‘half’ a staff member, at most, 2) as opposed to a Fact Finding Mission which gets 14 staff. Given the gravity of the situation, this would be a highly inadequate measure.
Afghanistan risks falling into a human rights black hole, with the AIHRC taken over by the Taleban, many Afghan independent media and human rights organisations effectively closed down or reducing operations and the UN in Afghanistan likely to shift its emphasis towards humanitarian access. For Afghans who feel abandoned beneath a new regime still jubilant from its military victory, a Fact-Finding Mission or Commission of Inquiry could help keep a focus on human rights and victims alive. The Taleban are not immune to public criticism or diplomatic pressure on human rights, as their multi-year dialogue with UNAMA on its documentation of civilian casualties has shown. That dialogue sometimes, though not consistently, resulted in improvements to Taleban conduct in the conflict. Ideally a robust Fact-Finding Mission, as well as tracking and sounding the alarm on abuses could hold them to their promises and act as a deterrent. It would also start investigating the past abuses by previous conflict actors in Afghanistan, including the Karzai and Ghani administrations, as well as the international military forces who intervened in Afghanistan.
Given the scale of concerns, if the Human Rights Council does not create a human rights mechanism with some teeth that can investigate abuses by all parties to the conflict, says Sidoti it “will undermine the integrity and credibility of the Council and its members and of those States that have called this session.” He warns: “There is more at stake at this session than the future of Afghanistan.” The clock is ticking, not just for millions of Afghans who fear they have just entered a period of repressive Taleban rule, even as past crimes are still left unaddressed, but also for the credibility of the UN Human Rights Council.
Edited by Kate Clark
Annex: Draft resolution of the UN Human Rights Council as of August 22, 2021 (subject to revision on August 24, 2021 at the Human Rights Council).
Strengthening the Promotion and Protection of Human Rights in the Islamic Republic Afghanistan
The Human Rights Council,
PP1. Guided by the purposes and principles of the Charter of the United Nations, reaffirming the Universal Declaration of Human Rights and recalling the International Covenants on Human Rights and other relevant instruments;
PP2. Reaffirming that States have the primary responsibility for promotion and protection of human rights;
PP3. Recognizing that the promotion and protection of human rights should be based on the principles of cooperation and genuine dialogue and aimed at strengthening the capacity of Member States to comply with their human rights obligations;
PP4. Reaffirming also its strong commitment to the sovereignty, political independence, territorial integrity and unity of Afghanistan;
PP5. Recalling the annual reports of the UN High Commissioner for Human Rights to the Council on the human rights situation in Afghanistan and achievements in the field of human rights, including A/HRC/46/69 presented at the forty sixth session;
PP6. Recalling all the relevant resolutions of the United Nations General Assembly, Security Council and Human Rights Council on the situation in Afghanistan;
PP7. Taking note of the recent statements by the UN Secretary-General and the UN High Commissioner for Human Rights, and the joint statements of the Special Procedure Mandate-Holders of the Human Rights Council on the reports of human rights violations and abuses in Afghanistan;
PP8. Underscoring that a sustainable end to the conflict in Afghanistan can only be achieved through an inclusive and durable political settlement to safeguard and advance human rights and fundamental freedoms of all Afghans;
PP9. Recognizing the role and efforts of international and regional partners as well as the United Nations system in facilitating an inclusive peace and reconciliation process in Afghanistan;
PP10. Expressing serious concerns over the reports of violations and abuses of international human rights law and international humanitarian law in the country;
PP11. Expressing deep concern over the displacement of Afghan civilian populations that has caused many Afghans to take refuge in neighboring and other regional countries; appreciating the generous hospitality demonstrated by Afghanistan’s neighbors ; and urging the international community to assist Iran and Pakistan as the major host countries to address the refugee problem on the basis of shared burden and responsibility, particularly given the COVID pandemic which requires urgent vaccination of all eligible refugees;
PP12. Recalling that the current security and humanitarian situation is linked to the prolonged conflict, and military interventions in Afghanistan;
PP13. Reaffirming the importance of combating terrorism in Afghanistan and to ensure that the territory of Afghanistan should not be used to threaten or attack any country, and that no Afghan group or individual should support terrorists operating on the territory of any other country;
PP14. Recognizing further that terrorism has devastating consequences for the enjoyment of human rights and fundamental freedoms of victims and their families, in particular women and girls, and reaffirming its profound solidarity with them and stressing the importance of providing them with proper support and assistance;
PP15. Reiterating its unwavering commitment to the rights of Afghan women and girls, in accordance with applicable human rights law, including the Constitution of Afghanistan, as well as the promotion and protection of women’s full ability to exercise their equal enjoyment of human rights in Afghanistan;
PP16. Recognizing that sustainable peace can be achieved only through a comprehensive and inclusive Afghan-led and Afghan-owned political process, with full and meaningful participation of all Afghans, including ethnic and religious communities as well as all segment of society including women that aims at permanent and comprehensive ceasefire as well as inclusive political settlement to end the conflict in Afghanistan;
PP17. Recognizing that accountability for those responsible for human rights violations and abuses is one of the central elements reconciliation and stability within a State and of any effective remedy for victims of human rights violations and abuses, and recognizing also that a fair and effective national justice system is a key factor in ensuring respect for human rights and fundamental freedoms;
PP18. Cognizant of the importance of promoting human rights and fundamental freedoms, good governance, rule of law, democracy and accountability by States in accordance with universal human rights and their constitutional and legal systems;
PP19. Considering that the international community, through appropriate platforms including Human Rights Council, can play an important and useful role by highlighting violations of international humanitarian law, and abuses of human rights in Afghanistan to protect the human rights and fundamental freedoms, help justice, and reduce the risk of further escalation of the violence;
- Expresses grave concerns over all violations and abuses of international human rights law and international humanitarian law in Afghanistan;
- Calls for full respect of human rights of all Afghan citizens, women, children and minorities;
- Strongly urges all parties to the conflict to respect their obligations under international law, including international human rights law and international humanitarian law;
- Further calls for an immediate ceasefire, and urges all parties to cease violence and refrain from any action that undermines the rights and fundamental freedoms of all citizens in Afghanistan and disregards international humanitarian law ;
- Reaffirming its support to the on-going efforts, aimed at an inclusive and durable political settlement and national reconciliation in Afghanistan; and calls also for an inclusive and meaningful peace and reconciliation process that respects human rights and fundamental freedoms, including the full, and meaningful participation of women, as well as the inclusion of youth and persons belonging to ethnic, religious and other minority groups, that builds upon the progress made in the last 20 years;
- Urges international community to remain engaged with inclusive and representative State of Afghanistan along political, humanitarian, human rights and development tracks;
- Also urges the international community, including donors and international humanitarian actors, to provide adequate urgent assistance to Afghanistan’s neighboring States that are hosting huge Afghan refugee populations by integrating “refugee component” in allocation of COVID-19 vaccines in order to expedite the refugees’ inoculation against the pandemic;
- Stresses the need for transparent and prompt investigation into reports of all violations and abuses of international human rights law and international humanitarian law and to hold those responsible to account;
- Requests the High Commissioner to present to the Human Rights Council, at its forty-ninth session, a written report and hold an interactive dialogue on situation of human rights in Afghanistan, focusing on, among others, accountability for all perpetrators of human rights violations;
- Decides to remain seized of the matter.
This article was last updated on 24 Aug 2021
Afghanistan Independent Human Rights Commission