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Crimes Against Humanity: Rampant Human Rights Violations In Afghanistan Under The Reign Of Taliban (By- Jass Kaur Bindra)
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Crimes Against Humanity: Rampant
Human Rights Violations In Afghanistan Under The Reign Of Taliban
Authored By- Jass Kaur Bindra
Introduction-
“We will not enjoy security without
development, we will not enjoy development without security, and We will not enjoy either without respect
for human rights.”
—UN Secretary-General Kofi Annan[1]
Humanity won’t survive for long
without Human Rights but ‘Crimes against Humanity’ has abased
the life, liberty, equality, privacy, advancement and growth of society and has
pushed numerous nation states on path of torture, slavery, murder, deportation,
prostitution etc.
In the current scenario a drastic
upsurge of crimes against humanity can be seen in the nation state of
Afghanistan which has fallen under the clutches of Taliban. Taliban the
militant organization is endlessly committing ceaseless attacks directed
against its civilian population, with knowledge of the attack. Since seizing
control of the city on August 12, 2021, the Taliban have terrorized females by
trawling for high-profile women, refusing to acknowledge women free movement
beyond their dwellings, imposing mandatory dress codes, severely restricting
educational and economic opportunities, and curbing the right to peaceful
assembly.
The Taliban perpetrate war crimes
against civilians by assassinating teachers, kidnapping humanitarian workers,
and torching schools. Taliban troops were responsible for the deaths of 699
people in the first half of 2021[2].
During the months of June and July,
the Taliban were responsible for "the
great bulk" of the demolition and plundering of private residences and
civilian infrastructure. Extrajudicial murders are being carried out by the
Taliban, and food supplies have been seized. Rape have been committed by
Taliban soldiers, including gang rapes. As retaliation for providing
reproductive health treatments to women, the Taliban gang-raped and killed a
young girl.
The blatant shameless acts of severe
human rights defiance have terrorized the humanity not merely in the nation
state of Afghanistan but the intercontinental network. The horrendous situation
of Afghanistan puts forward several questions- What is Taliban and How it came
into force? What is the rationale behind the appalling crimes being committed
by the Taliban? What was the Status Quo before August 2021? Which International
Statute covers the humanitarian crisis of Afghanistan? What measures and steps
can be taken at International Level to mitigate the hideous human rights
violation in Afghanistan?
Hence, we will start
scrutinizing the aforesaid questions by firstly looking into the background of
Taliban and the status quo of the nation state of Afghanistan.
Background
It is a well-known fact that in order
to have a prudent vision for the future, one is required to comprehend the
subtleties and nuances of past events as the understanding of the latter
usually proves to be helpful in the pursuit of the former. Due to this, a look
back at the troubled past of Afghanistan under Taliban and the scenario post
that rule, until their recent takeover becomes imperative. Here’s a succinct
description of the aforementioned periods:
The First Reign Of Taliban :
Orthodox And Destructive
Taliban came into being as a militant
group post the Soviet-Afghan War, which brought an end to the reign of the
communist government led by PDPA (People’s Democratic Party of Afghanistan).
Taliban garnered public support in the name of giving security to people and
upholding Islamic idea of State and gradually took control of around two-third
of the total Afghan landmass by late 1996.[3]
The Taliban regime subscribed to an
orthodox and strict Islamic ideology which is often referred to as “a mixture of Deobandi traditionalism and Wahh?b? puritanism—with a conservative Pashtun social code (Pashtunwali)”.
The notorious regime treated women like second class
citizens and stripped them of their rights related to education and employment.
The girls were not allowed to receive education in schools and in the same way,
they were not allowed to pursue the career of their choice and were forced to
live a life full of restrictions. The steep decline in the social status of
women in the Afghan nation-state was one of the shadiest realities of this
regime. Apart from that, the mass destruction of non-Islamic monumental
structures like the Buddha of Bamiyan and the usage of harsh punitive measures
as a part of the criminal justice system can be mentioned as the unscrupulous
actions for which the regime has been heavily criticized time and again.
End Of First Reign Of Taliban: The Period Of Mere
Existence
Post the 9/11 terrorist attacks, the U.S. government
demandeded the extradition of Osama-bin-Laden but the Taliban’s refusal to give
Laden was met by a strong reply in the form of attacks by forces led by United
States and NATO on the Taliban which drove them out of power but these attacks
which continued till 2021, did not result in the complete obliteration of
Taliban, and its leaders continued to exist.
The Beginning Of The Second Reign Of Taliban
The number of troops in Afghanistan surged significantly
during the tenure of President Obama but after the talks between Taliban and
the representatives of U.S in 2020[4],
the latter agreed to withdraw the forces from Afghanistan. The withdrawal of
U.S. was subject to the condition that Taliban will function as per law and
order but Taliban broke the truce and took over the nation state of Afghanistan
for a second time.
Instances Of Gross Violation Of
International Law
1.
Blatant Infringement of Human Rights
by commission of crimes as per ‘Draft
Articles adopted by International Law Commission’ -There has
been an errant infringement of Article 1 r.w. Article 2[5]
of Prevention
and Punishment of Crimes Against Humanity 2019 by International Law Commission in
the Nation state of Afghanistan. Article 1 r.w. Article 2[6]
targets at preventing and punishing all the crimes which endanger the humanity
inclusive of-
? Murder- Despite peace attempts, Taliban
insurgents ruthlessly murdered about 6,000 Afghan people in 2021. According to
the UN's statistical research, horrific killings occurred under the Taliban
regime after the overtake, leading to abominable human right violation.
? Extermination- The Taliban threatens LGBT[7] Afghans
with 'extermination.' For homosexuality, there are only two punishments:
stoning or being forced to remain behind a wall that collapses on him.
? Torture- Children as young as 14 years
old were among those detained and tortured. Suspending prisoners by their
wrists, inflicting beatings to the soles of their feet, electric shocks,
twisting detainees' genitals, cutting toe nails, and placing people in
stressful postures were all techniques utilised by civilians.
? Deprivation of physical liberty - Sheer
deprivation of personal liberty and excessive torture has been witnessed in
months of November 2021 as women and girls are being forcibly married and being
deported to Waziristan in Pakistan.
? Deportation - 9,00,000 individuals have
been uprooted in the last 3 months’ period.
? Rape, Sexual Slavery, Enforced
Prostitution, Sexual Violence – Thousands of women have been forced into sexual slavery by
the Taliban. As part of a ploy to entice fighters to join the Taliban, the
Taliban is giving “women.[8]” Sexual
enslavement, not
marriage, is a war crime and a crime against humanity, and
forcing women into sexual slavery under the pretext of marriage is a hostile
act and a crime against humanity.
2.
Failure to abide by the general
obligation by nation state of Afghanistan-The International Law Commission under its Draft Article has imposed General Obligations under
Article
3 r.w. Article 4[9].
Egregious transgression of general obligation under the reign of Taliban in the
Nation state of Afghanistan can be seen as-
?
1st Obligation- “Each State has the obligation not to engage
in acts that constitute crimes against humanity”[10].
But a horrendous violation of 1st obligation is visible in this case
as abominable crimes against humanity inclusive of sexual slavery, forced
prostitution, forced pregnancy, forced sterilization that violate the basic
rules of international law, persecution of identifiable groups has taken place
in Afghanistan. Sexual assault must not be tolerated as part of a comprehensive
strategy for achieving long-term peace, justice, and national reconciliation in
Afghanistan.
?
2nd Obligation – “No exceptional circumstances whatsoever,
such as armed conflict, internal political instability or other public
emergency, may be invoked as a justification of crimes against humanity.”[11]
International Law under the ILC draft has strongly upheld that political
instability inclusive of insurgency created by Taliban cannot justify crime
against humanity but despite that no measures and efforts can be seen which
curbs gross defiance of Human Rights. Entire 2021 passed but the condition in
the Nation state of Afghanistan specifically in western city of Herat is as
grave as it was. Civilians' rights were curtailed by the Taliban, including the
ability to live without fear of retaliation against themselves and their
families, the ability to continue working without the need for a mahram (male
family member as a chaperone), and the right for girls in grades six and up to
return to school.
?
LGBT[12] Afghans
are being threatened with extermination by the Taliban. It is cruel and
unproductive to detain and torture minors who have previously been victims of
armed insurgency organization.
3.
Non-adherence to the Principle of
Non-Refoulement -The principle of non-refoulement is a rudimentary
tenet of International Law and due to this reason, all the nations across the
globe are supposed not to opt for forced deportation of refugees to a country
in which they may be subjected to persecution but the people who fled to other
countries during the Afghanistan crisis of 2021 in search of a persecution-free
life were not treated in accordance with this tenet and the refugees witnessed
the rampant non-adherence to non-refoulement in different countries which
further aggravated their agony.
? Article 5[13] of the “Draft Articles on Prevention and
Punishment of Crimes Against Humanity” adopted by International Law
Commission requires the nations to strictly adhere to non-refoulement while
taking into consideration the human rights violations, but different countries
forcefully deported the Afghan refugees, thereby not complying with this article.
? For instance, Pakistan alone deported
around 200 refugees who had fled Afghanistan amid the aforementioned crisis. In
the same way, the United Kingdom refused to grant asylum to 32,000 Afghan
nationals who are very likely to get deported soon and the scenario has not
been any different for the refugees who
seeked asylum in Iran as they also ended up getting deported.
The utter disregard for
this fundamental principle by the member nations has endangered the future of
the refugees, who fled their own country in search of a better future for their
family. The International community has failed to address this issue in a
vociferous manner and that is another reason why the innocent refugees are
bearing the brunt of the imprudent actions of a few countries.
4.
Blatant infraction of ‘UN Declaration on the Elimination of
Violence Against Women, 1993’ by Taliban - Since the Taliban took control of
Afghanistan in 2021, much akin to the previous Talibani regime, numerous
restrictions were imposed on women including the restrictions on their free
movement, education and employment. Apart from that, the notorious previous
regime of Taliban had also perpetrated sexual offences[14]
against women and coerced young girls into marrying the Talibani assassins and
unfortunately, the same has become one of the harsh realities under the current
regime and different news reports act as testaments for this fact. The onus
lies on the international community to deal with this issue with the utmost
alacrity as the failure to act in a decisive manner would only worsen the
situation, as the state sponsored offenses against women have yet again become
a regular affair under the current Taliban regime. This issue was recently
raised by the UN itself and thus, it demands quick action.
The UN Declaration on the Elimination
of Violence Against Women which was adopted by the United Nations
General Assembly in 1993, specifies and categorises the offences against women
and defines violence against women in an elaborate manner. The definition
provided by the aforementioned declaration is as follows: “Any act of
gender-based violence that results in, or is likely to result in, physical,
sexual or psychological harm or suffering to women, including threats of such
acts, coercion or arbitrary deprivation
of liberty, whether occurring in public or in private life.”[15]
The offences against
women perpetrated by the Taliban quite conspicuously fall within the ambit of
the above stated definition because the offences being committed against the
women ensue physical, sexual as well as psychological harm to the individuals
and since it is a definition recognized by the United Nations, the actions to
curb the commission of these offences become imperative.
Potential Measures To Mitigate
Crimes Against Humanity In Afghanistan
1.
International Community shall insist
on the adherence to application of Article 6(5) and Article 8[16]
of ‘Draft Articles adopted by
International Law Commission’- It is high time that the United
Nations Organization steps up and communicates the requirement of adherence to
International Laws to the leaders of the Taliban government in Afghanistan
and one of the prominent legal
documents in this regard is “Draft Articles Prevention and Punishment of
Crimes Against Humanity”, which is a document adopted by International
Law Commission. There is a very high probability that this initiative
of the UN would gain support from a considerable number of peace loving
countries across the globe and this collective insistence may yield positive
results for the war stricken nation. The concrete reason behind the same is the
presence of Articles 6(5) and 8[17],
which require the member states to not provide any impunity under their
criminal law to the persons who hold any official position and to conduct an
immediate and unbiased probe against the persons who seem to have been involved
in crimes against humanity.
The verbatim contents of
the two articles are as follows:
? Article 6(5): “Each State shall take the necessary
measures to ensure that, under its criminal law, the fact that an offence
referred to in this draft article was committed by a person holding an official
position is not a ground for excluding criminal responsibility.”[18]
? Article 8: “Each State shall ensure that its
competent authorities proceed to a prompt, thorough and impartial investigation
whenever there is reasonable ground to believe that acts constituting crimes
against humanity have been or are being committed in any territory under its
jurisdiction.”[19]
In this way, if the
aforementioned articles became effective in Afghanistan, then that would
certainly be the first step towards peace.
2.
Encouraging Taliban to revere the
Declaration on the Elimination of Violence Against Women and act accordingly
? The rampant violence against women
has become a harsh reality under the Talibani regime and a critical step for
the purpose of alleviation of the agony of Afghan women from the International
community would be the encouragement by the latter to the current Taliban
regime to show utmost reverence towards the UN Declaration on the Elimination
of Violence Against Women[20]
and to act in accordance with it. The
declaration not only provides a broad
and wholesome definition (Article 1) of the term “violence against women” but
also requires the member states to take decisive actions in order to curb the
instances of such violence irrespective of any custom, tradition or religious consideration which
prevents them from taking such actions (Article 4).
?
This declaration comprises six articles
which are aimed at eliminating the violence against women worldwide and one of
the major highlights of this declaration is the fact that it lists 8
rudimentary rights of women under Article 3 and if the Taliban embraces this declaration,
then that would most certainly change the lives of the women in Afghanistan as
the moment they are granted these rights, their lives would become free from
restrictions.
?
There already exists a law in Afghanistan
for elimination of violence against women which had come into being in 2009 as
a result of series of protests led by women’s rights activists for over two
decades. The declaration coupled with this law would surely safeguard the
rights of women and offer protection[21] to
them, if implemented by the Taliban.
3.
Exhorting Taliban to abide by “Convention on the Rights of the Child, 1989” to which Afghanistan is a
signatory since 1994 - As per Article
6[22]
of CRC, “States Parties recognize that every child has the inherent right to
life and it shall ensure to the maximum extent possible the survival and
development of the child.” Afghanistan is
the signatory of Convention on the Rights of the Child, 1989” since 1994, which
means that from the past 27 years Afghanistan has been a part of this convention
and it must abide and adhere to all the provisions which have been mentioned in
the convention. But the true reality is that the nation state of Afghanistan
under the reign of Taliban is not abiding by the conventions.
All the nation states who are a signatory to
this convention must exhort Taliban to abide by this convention and to
specifically enforce Article 6 so as to improve the condition of children who
are being treated as mortals by Taliban. In Afghanistan's Andarab valley,
the Taliban has terrorized and killed young children. The militants have been
searching people's houses without reason or justification and kidnapping
innocent people. People chose to rise up against the crimes in order to
safeguard their lives, honor, and property.
4. Safeguarding the
existence of LGBTQIA+ under reign of Taliban by adherence to Article 9, 26 of “International
Covenant on Civil and Political Rights (ICCPR)”
? Article 9 of the ICCPR mentions that- “The right to liberty is available to
“everyone” which includes all persons of LGBTQ identity.”[23]
? Article 26 of the ICCPR, “Prohibits discrimination and gives equal protection to all persons
before the law has been interpreted to include transgender persons under the
category of sex.”[24]
As a measure to safeguard the critical condition and
survival of members of transgender community (who are being brutally killed for
the reason that they are one amongst LGBTQIA+) in the nation state of
Afghanistan under the horrendous reign of Taliban, it is of utmost importance
that Taliban abides by International Law mentioned under Article 9, 26 of International
Covenant on Civil and Political Rights (ICCPR)[25].
The majority of these rulings were given in reaction to petitions filed under
the individual human rights treaties' (voluntary) Individual Complaint
Mechanism or a voluntary reference to trans problems. Transgender rights have
been mentioned by the ICESCR Committee, however they have continuously cited a
lack of thorough studies and facts to make any decisive suggestions.
If the ICCPR is not enforced, then
the status quo will continue which is appalling. LGBTQ persons are afraid of
being killed by the Taliban. There are only two conceivable punishments for a
guy who has intercourse with another man, and both are lethal: “Either
stoning or he has to be behind a wall that collapses on him.[26]”
The height of the wall should be between 2 1/2 and 3 meters.
Conclusion
The terror-stricken nation of
Afghanistan has had a troubled past and the memories of the first reign of
Taliban which lasted for almost half a decade, are still fresh in the minds of
the people who witnessed it. While taking over the country this time, they made
every possible attempt to show the world that there is a compassionate side to
this militant organization which is notorious for its misogynistic and
destructive tendencies. They told the whole world through their press
conference that they will grant all sorts of freedoms to women including the
freedom to study and work, and tried to paint a rosy picture of Afghanistan
under Taliban by holding a series of press conferences but the truth saw the
light of day very soon and the ground reality came in front of everyone through
a number of media reports which provided facts about the rampant human rights
violations[27]
being committed by Taliban which proved that the claims made in those press
conferences about a new Taliban were merely a bunch of lies. The media reports
clearly show that the Taliban regime poses an immense threat to the vulnerable
individuals i.e. women, children and persons belonging to LGBTQIA+ community.
The whole country is in grave danger as the ones who are supposed to be the protectors
are the ones who are the perpetrators.
The onus lies on the
International community to make an intervention and put to use every possible
measure in order to protect the vulnerable individuals residing within the
territory of the Afghan nation-state. The potential measures as provided in the
previous heading would be best suited to deal with this issue and the Taliban
may be either incentivized or pressurized for the grassroots-level
implementation of these measures as per the requirement.
In this way, the most
plausible conclusion would be that considering the graveness of the threat
posed by Taliban, the intervention by the International community has become
imperative and such intervention, if made in order to make Taliban revere the
relevant provisions of International law, would be the sole step having the
potential to alleviate the agony of the vulnerable individuals.
Article Information
Crimes Against Humanity: Rampant Human Rights Violations In Afghanistan Under The Reign Of Taliban (By- Jass Kaur Bindra)
Authors: Jass Kaur Bindra
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/10/07
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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