The recent U.S. withdrawal from Afghanistan followed by the Taliban’s swift return as Afghanistan’s reigning regime has garnered fear and speculation within the international community, particularly among western democracies and human rights organizations, about the future of the country. Amidst the group’s chaotic reemergence to power, the resounding concern is the implications for political and civil rights for Afghans, especially with regards to minorities and the underprivileged. While there is a question of whether the Taliban will shed its disregard for international criticism, its ability to dispel these fears will largely depend on the Taliban’s ability and willingness to promote the rule of law in order to safeguard Afghan society against political instability.
Though there is no consensus on the meaning of the term “rule of law”, the United Nations views it as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated[.]” The fundamental concept underlying this principle is that ensuring compliance with human rights norms depends on a government’s ability to inspire confidence in the institutions that are responsible for legislating and enforcing laws.
The international community has expressed grave concerns over the Taliban’s ability to effectively govern and protect women and minorities, a view which is predominantly informed by the Taliban’s previous reign over Afghanistan from 1996 until the U.S.-led invasion in 2001. According to this view, it is likely the Taliban leadership will conform to the pattern of brutal rule with which the regime was associated prior to the U.S. invasion in 2001. During its previous iteration of power, the Taliban’s model of governance consolidated a strict interpretation of Islamic law with the tribal Pashtun-tribal code, who make up the majority of the Taliban. The Taliban’s unique interpretation of Islamic law applies retributive justice, with punishments ranging from floggings and amputations to summary executions, but often without following any internationally recognized due process rights for an alleged offender. The International Covenant on Civil and Political Rights (“ICCPR”), a multilateral treaty to which Afghanistan has been a party since 1983, sets forth human rights obligations for member-states, including to provide certain minimum standards of due process.
Women, however, have enjoyed few political and social rights and have largely been confined to the private spheres within their homes. Similarly, for ethnic and religious minorities such as the Hazara, a largely Shia community compared to the otherwise majority Sunni population of Afghanistan, the Taliban is purported to have subjected them to brutal marginalization and severely limited their access to justice.
Though strides were made under the U.S.-backed Afghan government towards securing the rights of women and the Hazara community by guaranteeing equal protection under Afghanistan’s Constitution of 2004, many experts now believe that “the Taliban pose an immediate threat” to these advances. For one, the Taliban stated in August 2021 that the democratic principles enshrined in Afghanistan’s Constitution will be displaced by Islamic law. If the Taliban’s previous rule is an indication as the international community believes it to be, the Taliban’s harsh interpretation of Islamic law will mean a continuation of systemic discriminatory policies against women and minorities.
The Taliban’s own assertions, however, reveal a desire to “project a more moderate image” as compared to its previous rule. They have shown a limited willingness to engage with the international community and extinguish concerns over the future of women and minorities in Afghanistan under the Taliban. Illustratively, a Taliban spokesman recently stated that the Taliban will protect the rights of minorities within the bounds of Islamic law. Although this proffered statement was likely intended to appease the international community that the Taliban believes is watching the country closely, reasons to doubt the veracity of such vague assertions are abound. For instance, the Cabinet of the recently announced interim government is absent of any female or non-Taliban representation. By excluding women and non-Talibs from positions of power, this Cabinet undermines the purported position of moderation that the current Taliban leaders aspire to project.
Though European countries have tried to apply some economic pressure, by freezing Afghanistan’s assets, in order to induce the Taliban into extending human rights to the vulnerable groups within its population, it is unclear whether such a strategy will provide a sufficient incentive to assure social and political rights for women and minorities.
Author Biography: Harsimran Kaur Sachdeva is a moderator of the International Law and Policy Brief (ILPB) and a J.D. candidate at The George WashinTweet gton University Law School. She has a Bachelor of Arts in South Asian Languages and Culture from the University of British Columbia.