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Panel Report: Accountability for Human Rights Violations and Abuses in Afghanistan

Summary and recommendations of the panel discussion (side event) on Securing Accountability for Human Rights Violations and Abuses in Afghanistan 

13 September 2022

Summary:

The Center for Dialogue and Progress – Geneva’s Afghanistan Human Rights Resources Center in partnership with the Permanent Missions of Afghanistan, Australia, Iceland, and Spain to the United Nations Office in Geneva, the UN Women, and the International Commission of Jurists held a panel discussion at the margin of the 51st Session of the Human Rights Council to initiate a normative and practical discourse on advancing accountability for serious human rights violations and abuses in Afghanistan.

The members of the panel discussed the unprecedented scale and magnitude of the human rights abuses by the Taliban and emphasized on bolder action from the Council. From strengthening the Mandate of the Special Rapporteur on Afghanistan to establishing a dedicated accountability mechanism that could document and verify human rights violations and abuses and violations of international humanitarian law, as well as to provide deterrence and preventive force against further violations.

Complete Report

I. Introduction

  • The Center for Dialogue and Progress – Geneva’s Afghanistan Human Rights Resources Center in partnership with the Permanent Missions of Afghanistan, Australia, Iceland, and Spain to the United Nations Office in Geneva, the UN Women, and the International Commission of Jurists held a panel discussion at the margin of the 51st Session of the Human Rights Council on 13th September from 3 to 4 pm, with virtual and in-person participation.
  • The panel focused on: (1) assessing options for the expansion of existing mandates or the establishment of a new mechanism to enable systematic documentation and verification of information and evidence relating to violations and abuses of human rights and violations of international humanitarian law; (2) enhancing complementarities and interlinkages among existing mandates and mechanisms; 
  • Accountability is indispensable to durable peace, just societies, and the achievement of inclusive development. It is essential for human rights promotion and protection. Traditionally, accountability has been a sensitive subject in Afghanistan, with impunity for human rights violations and abuses prevailing. Since the illegal military takeover of Kabul by the Taliban, the situation has only worsened. 
  • The Taliban have intensified their merciless campaign of enforced disappearances, arbitrary detention, abduction, torture, and unlawful killings of former members of national security forces, government officials, journalists, civil society activists, and women across the country. In their bid for total control, the Taliban continue to silence any voice of dissent and implement gender apartheid-like policies, erasing half of the population from the public sphere. Minorities continue to be the target of discrimination and deadly attacks, which the Taliban fail to prevent or provide any measure of redress. 
  • In the absence of national independent human rights institutions, limited capabilities of the UN, and severely restricted civil society space, meaningful monitoring of human rights on the ground has become impossible. The critical human rights situation demands a robust and sustainable monitoring mechanism working in a coordinated manner with the existing mandates to promote accountability and remedies for victims, counter impunity, and make recommendations for the effective prevention of further violations. 
  • Permanent Representatives of Iceland, Mr. Einar Gunnarsson and Afghanistan, Mr. Nasir Ahmad Andisha presented brief welcoming and introductory remarks followed with a discussion by a rich panel chaired by Ms. Homira May Rezai of Hazara Committee in the United Kingdom, Mr. Richard Bennett, Special Rapporteur on situation of human rights in Afghanistan, Ms. Fawzia Kofi, former deputy speaker of parliament and Afghan women rights activist, Mr. Sam Zarifi, Secretary General of the International Commission of Jurists, Ms. Heather Barr Associate Director of women rights at the Human Rights Watch and Ms. Lailuma Nasiri, human rights activists speaking from inside Afghanistan, provided their insights and practical recommendations at the panel. The Panel was closed with remarks from Spain’s Ambassador at large for Feminist Foreign Policy, Ms. Maria Jesús Conde, and Mr. Jeff Roach, Ambassador and Deputy Permanent Representative of Australia to the UN Office in Geneva. 

II. Summary of the proceedings 

A: Introductory remarks 

  • On behalf of the cosponsors, PR of Iceland welcomed the panelists and participants to the meeting. He expressed that the road to accountability will be long, and one which we collectively need to continue to pursue. Appreciating the support of the cosponsors, PR  of Afghanistan called it a testimony of growing concern, and consensus around the need to establish an accountability mechanism and hoped that the discussion would contribute to exploring the possibility of establishing an Investigative Mechanism and strengthening of the mandate of Special Rapporteur.

B: Contributions from the panelists

  • Homira Rezai, a speaker and moderator of the panel, expressed content with the start of discussions on accountability in Afghanistan and concern on the persisting impunity in the last 20 years for the international crimes Taliban committed even during their rule in 90s. She mentioned two reports (by HRW and the British Parliament) on the situation of Shites and Hazaras in Afghanistan according to which they are at risk of international crimes. She stressed that the political implications around the classification of crimes against Hazaras as genocide should not stop looking into the situation and preventing crimes from happening because it is a common duty under the Convention on the Prevention and Punishment of the Crime of Genocide (1951).
  • The moderator urged the panelists to take on an intersectional lens when considering the crimes committed by the Taliban. Afghanistan is an extremely diverse country: this particular feature requires an approach that could take into account all the different identities, experiences and communities living under the Taliban’s rule. 
  • Fawzia Kofi, recalled the urge from civil society activists for accountability and justice to go side to side with peace and stability efforts, after the collapse of the Taliban in 2001. But the response they continuously got was  that peace and stability is a priority. She stressed the need to prioritize this after 20 year, as Afghans achieved neither the peace and stability they wanted, nor the rule of law. It’s a strong indication that justice and rule of law is a prerequisite for peace and stability, and that one can not go without the other, she pointed out.
  • Ms. Kofi highlighted that to be able to gain back the trust of the people, there is a need to give people voice and ensure accountability as the culture of impunity has been there for too long. People have lost their faith in existing structures such as ICC or HRC as they only hear beautiful words from these entities but no action. 
  • There is no rule of law and constitution in Afghanistan, and that’s why Ms. Kofi believes an international accountability mechanism is crucial to hold Taliban into account for the very basics at least. 
  • She recalled the question she is often asked on what the international community shall do? BASIC STEPS. We’re not asking the Human Rights Council to pick up a gun and fight against the Taliban. But basic steps. Crime against humanity is happening in Afghanistan. Accountability for these is the leverage that the world could use in solidarity with women and men of Afghanistan.
  • Sam Zarifi agreed with the previous speakers that the situation in Afghanistan is the collapse of the rule of law. We are seeing widespread and systematic violations of human rights, in many cases amounting to crimes against humanity, in particular relating to the persecution of people on the basis of ethnicity, religion, and gender.
  • From the ICJ point of view, it is crucial moment for the Human Rights Council to address the unprecedented gender discrimination that is not normal by any standards. And the notion that such practices are approved by religion or culture is unacceptable in Afghanistan like everywhere else. This is why the ICJ has called on the Council to consider strengthening and creating accountability mandates. 
  • According to Zarifi, though the term gender apartheid is not legally understood, there is no comparison to what is happening in Afghanistan in terms of erasing women, and keeping them from the entire spectrum of human rights. It’s important for the Council to act in this regard. As the investigation by the International Criminal Court which focuses on violations of international criminal law, is still delayed, there’s space for the Human Rights Council to step in.
  • The ICJ’s work and research in Afghanistan suggests that there is no legal system left in Afghanistan. More than 2000 judges and judicial officers have been fired. Lawyers had their licenses revoked. And it is not clear what constitution or penal code apply right now, all that is left is a barbaric penal system, which again demands and requires assistance from the international community.
  • ICJ is encouraged by the efforts of the Special Rapporteur, his visits and his ability to engage with the Taliban. But believes that this is not enough, it is unfair to place this burden simply on the Special Rapporteur. When the position of the Special Rapporteur was created, several states pointed out that they would prefer an accountability mechanism. A year later we believe that this analysis is even more cogent, more true. And that’s why ICJ favours extension and strengthening of the mandate, and in addition, a human rights accountability mechanism added with a strong message to the Security Council to also strengthen UNAMA’s human rights monitoring.
  • Heather Barr thanked the SR for saying out loud, the term gender apartheid and encouraged the use of this framework as there is no other accurate description for the women situation in Afghanistan. A state where women and girls can’t study, work, move freely, have recourse for violence committed against them and where male family members are held responsible for their acts, is a gender apartheid state.
  • So what is it that we actually can do in this situation? According to Ms. Barr, The first is to have a clear understanding of what is actually happening as right now there are huge gaps in our understanding of the right situation. The Afghan Media has been silenced. The international media, the AIHRC and Ministry of women’s affairs is gone. Not only specific places like Panjshir but the whole country is a gap right now. 
  • According to Heather Barr, the systems that are in place can’t begin to fill the existing gap. ICC has yet to act since 2006, UNAMA has a broad human rights mandate, but has to also lead engagement with the Taliban, and provides for the humanitarian needs of millions of Afghans. SR is doing an excellent job, but it’s an unpaid job with limited resources.
  • What should the United Nations actually be doing right now? Asked Ms. Barr, to which her response was that the UN should be collecting information about every allegation of rights violations and abuses everywhere across the country, they should be responding to every allegation with investigation. And they should be collecting and preserving all evidence from every single case so there could be accountability in the future. As well some sort of deterrence for the crimes that are happening now with complete impunity.
  • Lailuma Nasiri points out that the situation in Afghanistan has not changed: the recent closure of some schools in Paktia province is proof of this. Despite the importance of the Report produced by Mr. Bennett, this is not enough. It is utmost necessary that the HRC, the UN and the whole international community implement the recommendations made in such a report, so that it has an actual effect on the real lives of Afghan people living under the Taliban rule. 
  • Ms. Nasiri made various recommendations to the audience. It is necessary, according to her, for the engagement with the Taliban to be condition-based, and to hold them responsible & accountable for the crimes they have committed in the territory. She asked the HRC to establish such an international mechanism of accountability.  
  • She stressed on the importance of supporting the CSOs and media in furthering accountability. Engagement on the ground is essential: UN representatives, envoys and delegations should keep in close contact with various groups in the country, in order to prevent a deterioration of the situation & maintain the tussle for better conditions. 
  • Finally, Ms. Lailuma Nasiri suggested that the Taliban must be urged to act within the limits of the international treaties that Afghanistan is a party to. 
  • Setting out the landscape, Richard Bennet called the discussion on the need for strengthening accountability, as the beginning of a discussion that needs to happen. In his words it is clear that Afghans have waited far too long for justice, and impunity remains a cause for serious concern.
  • He echoed the other speakers on the Taliban’s suspension of independent oversight mechanisms that were key for checks and balances, and Justice. The country is controlled without a constitution, and parliament. The Human Rights Commission has been dissolved as has the Independent Bar Association, taken over by the Taliban. There’s uncertainty about applicable laws and judicial processes and remedies available.
  • He expressed the need for the accountability and transitional justice to go hand in hand as mutually reinforcing processes rather than seeing justice as a threat to peace. He also pointed out the need for accountability to cover the multiplicity of actors involved. He expressed his determination to use all available means within his mandate to advance accountability.
  • According to him, it is crucial to collect and preserve the vast body of information and evidence on violations of international law that can be available for future use. His mandate has a fact-finding and accountability element. He documents individual cases and is setting up a documentation process, with his team on board. 
  • The SR requested the renewal and strengthening of his mandate by the Council. He also suggested any new accountability mechanisms to be prudently designed to focus on where value can be added, and avoid duplication or overlap. 

C: Closing remarks

  • Amb. Maria Conde appreciated the compelling and bold statements by the panelists and echoed their views on the need for full accountability. She stated that the road to accountability starts from strengthening the mandate of the Special Rapporteur, including more financial and technical resources,  and reiterated Spain’s support towards that end.
  • Amb. Roach also thanked the panelists for their contributions and compelling statements. He recalled the statements from Afghan activists -that due to inaction hope is being lost- as a sobering moment. He further touched on calls for western countries to assure accountability for their own conduct in Afghanistan. Mr. Roach briefed on domestic steps taken in Australia and concluded by reiterating Australia’s openness to addressing the question of accountability including with regards to the allegations against Australian forces.  

III. Conclusions and Practical Recommendations 

Strengthening the existing mandates and mechanisms

  • Crimes against humanity are being committed in Afghanistan, since such crimes are by definition crimes against all of us, the Council has a collective responsibility to act. It is important for the Council to engage further on what practical steps can be taken during 51st Session and beyond, and keep Afghanistan on its agenda not only when it is in sessions but update on inter-sessional basis as well, specially in support of Afghan women. (Richard)
  • The Special Rapporteur is currently the only existing mechanism with potential for assisting with accountability. The panelist concurred on the need for the mandate to be strengthened and further resources made available to it. The SR’s technical team needs to be expanded to deliver on all elements of the mandate including, fact-finding. Gender and minorities are already mentioned in the mandate. Further language on collecting and preserving evidence and documentation could be helpful.
  • Several panelists stressed the need for UNAMA’s mandate to expand and its access enhanced, with a major focus on human rights monitoring and data collection.

Establishment of an Independent Accountability Mechanism 

  • Panelists spoke of the absolute collapse of rule of law and judicial processes in Afghanistan, and in the absence of any domestic remedial structures and widespread impunity, the panel highlighted the need for international accountability. 
  • Panelists highlighted the need for an international monitoring and accountability mechanism that fits the current scale of widespread human rights abuses, and capable of investigating every allegation that arises. This task calls for a mechanism that’s on the scale that does not exist right now. A fact-finding mission, commission of inquiry, or a similar mechanism with adequate resources focused on verifying information about all alleged crimes is what is needed in Afghanistan. 
  • Looking at Afghanistan, ICJ believes it is important to establish a separate mechanism. An accountability mechanism that can look at, document, monitor, and also analyze the crimes and abuses for what they are.
  • HRW, like ICJ, supports the creation of a new and separate mechanism to provide accountability and monitoring of the human rights situation in Afghanistan, alongside the continued work of the Special Rapporteur

Avoiding duplication between existing and potential new mandates

  • In its deliberations on the new mandates, it is necessary for the Council to continue to think creatively. And make available the right tools, such as asking for a report, or creating a new mechanism. Any new mandate shall be prudently designed to avoid duplication or overlap with existing mandates.

Special Focus on certain groups

  • Several panelists stressed the need for operationalizing the gender apartheid framework in the case of Afghanistan and invited all stakeholders to explore what duties such an understanding shall bring. 
  • Speakers also called for pursuing a more resourceful focus on women’s rights, using different mechanisms in place, including having focal points, or staff on the ground. Gender equality and the rights of women and girls must be placed at the core of the Human Rights mandate and instruments. And also, in the core of the work of the UNAMA. 
  • Three panelists highlighted the importance of accountability for past and current crimes to ensure reconciliation and rebuild Afghanistan as a peaceful country.
  • One panelist recommended using the right language in understanding the situation in Afghanistan. Violence against certain ethnic and religious communities shouldn’t be categorized as general violence. Because of their systematic nature, they bear the hallmarks of international crimes, ethnic cleansing, and collective punishment.  
  • In order to further accountability, according to one of the panelists, it is necessary that the Civil Society Organisations and the media in Afghanistan are financially supported and helped in their struggle to monitor and report on the situation.