Azadah Raz Mohammad
Afghanistan’s conflict is one of the most protracted conflicts in the world, with a devasting impact on multiple generations of the civilian population. Afghanistan became at the center of the world’s attention post-Taliban’s withdrawal from power in 2001. The international community came together to assist in rebuilding Afghanistan’s state institutions, including the justice system, albeit their policy intervention in the restoration of the justice sector started from a weak base in the face of massive work ahead.
In November 2001, soon after the overthrow of the Taliban from power by the international forces, the United Nations (UN) sponsored a conference on Afghanistan in Bonn, Germany. On 5 December 2001, The Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government in Afghanistan (the Bonn Agreement) was adopted.The stated objective of the Bonn Agreement was to end the tragic conflict in Afghanistan, and promote national reconciliation, lasting peace, stability, and respect for human rights. Further, the Bonn Agreement acknowledged the right of the Afghan people to freely determine their political future in accordance with the principles of Islam, democracy, pluralism, and social justice.
The Bonn Agreement had generated hope for a better Afghanistan and an expectation that there would be accountability for the heinous crimes committed in the country by not only the Taliban but also the crimes committed by the prior regimes. In reality, however, the Bonn Agreement was not a peace settlement, but a political pact signed by selected Afghan political leaders. The Taliban was not a signatory to the Agreement and was still fighting in the mountains of Afghanistan when the Agreement was adopted. Most importantly, the victims of decades of conflict had no seat at the Bonn Conference on Afghanistan.
However, the Bonn conference established the foundation for restoring and reforming Afghanistan’s judicial system. The Agreement outlined the establishment of the post-Taliban political order and legal framework for Afghanistan. It emphasized an independent judiciary under the Supreme Court of Afghanistan, and the creation of an Independent Judicial Commission in collaboration with the UN to ‘rebuild the domestic justice system in accordance with Islamic principles, international standards, the rule of law and Afghan legal traditions.’ Further, the Agreement required the creation of a human rights commission and obliged Afghanistan to comply with international legal obligations on human rights.
These achievements will likely endure the current political realities of Afghanistan and will be important in shaping Afghanistan’s post-Taliban transition.
The Bonn Agreement’s vision of rebuilding Afghanistan’s justice institution was an important step towards transitioning to post-conflict Afghanistan. Because a secure political order and justice system have always been regarded as the ‘conditio sine qua non’ of post-conflict reconstruction. Institutional reform was one of the most important and urgent components of post-conflict Afghanistan, particularly the justice institutions. Restoration of justice institutions is often a central strategy aimed at stabilizing a post-conflict society.
Similarly, after decades of conflict, the state of Afghanistan’s justice sector was dire. The national justice institutions were dysfunctional and without basic capacity or infrastructure. It ranked as the lowest justice system in the world, absent of a professional legal cadre. Therefore, the Bonn Agreement’s vision and efforts in developing professional, technical, and infrastructure capacities of Afghanistan’s justice institutions have been a cornerstone of international support post-2001. However, despite tangible improvements, the progress was slow and insufficient, hampered by conflict and corruption. Hence, despite improvements in the efforts to restore Afghanistan’s justice system, it was far from a functioning institution delivering justice between 2001-2021.
Nevertheless, in terms of the extensive efforts in judicial reforms post-2001, an important legacy of the Bonn Agreement will be the reform and rebuilding of Afghanistan’s judicial system. Such as the establishment of the Afghanistan Independent Human Rights Commission, the adoption of the 2004 Constitution, and the 2017 Penal Code amongst others. Although dismantled and not in force anymore with the Taliban’s takeover of Afghanistan since August 2021, these achievements will likely endure the current political realities of Afghanistan and will be important in shaping Afghanistan’s post-Taliban transition.
Based on the provisions of the Bonn Agreement, in January 2004, the Constitution of the Islamic Republic of Afghanistan (2004 Constitution) was adopted. It guaranteed the separation of power between the executive the national assembly and the judiciary. Article 7 of the 2004 Constitution obliges the Government of Afghanistan to observe the UN Charter, international conventions, and the Universal Declaration of Human Rights. The 2004 Constitution was considered the most progressive one in Afghanistan’s history. It protected the fundamental and equal rights of Afghan citizens and for the first time acknowledged Afghanistan’s different ethnic groups. It pledged to uphold Afghanistan’s commitment to the international human rights convention to which it is a party.
Upholding and incorporating the provisions of international human rights conventions into national laws to which Afghanistan is a party to is an important development. However, the 2004 Constitution is silent on the procedures by which international convention would be incorporated into domestic law. But, as a member of the UN since 1946, Afghanistan has ratified a number of international instruments. Among these are the nine-core international human rights conventions and the Rome Statute of the International Criminal Court.
By ratifying these international instruments Afghanistan is obliged to protect and promote the rights of its citizens based on their provisions. Moreover, the ratification of international conventions, such as the 1948 Genocide Convention, the Convention Against Torture, and the 1949 Geneva Conventions, have provided an impetus for states to incorporate international crimes enshrined within those conventions into their national legislation to ensure compliance with their treaty obligations. As well as, based on the principle of complementarity within the Rome Statute, the responsibility to investigate and prosecute international crimes is within the national jurisdictions. Therefore, pursuant to the principle of complementarity, the ICC is a court of last resort that should act only in the absence of genuine national proceedings. This means Afghanistan has the responsibility to actively investigate and prosecute the large-scale attacks committed in the country and the provisions of the 2004 Constitutions also confirm that.
In this regard, another major development that conformed with the Bonn Agreement was the adoption of Afghanistan’s first comprehensive Penal Code in 2017. Article 3 of the 2017 Penal Code states that ‘[…] to guarantee observance of human rights and fundamental freedoms of individuals; […] to increase the level of accountability of individuals […] to compensate the loss caused by the commission of crime.’
The much-anticipated penal code ensured conformity with international treaties and norms such as the Rome Statute. Articles 332 – 343 of the 2017 Penal Code incorporate the core international crimes enshrined under the Rome Statute, such as Genocide, War crimes, Crimes against Humanity, and Aggression as offences under the 2017 Penal Code punishable under Afghanistan’s national courts.
The inclusion of international crimes which would reflect the definitions found in the Rome Statute within the 2017 Penal Code, was a matter of primary importance. Because it provided Afghanistan’s justice system with much-needed jurisdictional bases to adjudicate those crimes under its national courts. Although the Government of Afghanistan lacked the political will to investigate and prosecute the large-scale deliberate attacks on civilians, the 2017 Penal Code is an important step toward national accountability of international crimes committed in Afghanistan.
However, with the Taliban takeover on August 15, 2021, the fate of the 2004 Constitution, and the 2017 Penal Code is unknown. The Taliban’s Acting Minister of Justice announced that under the Taliban’s rule, the only applicable law should be based on Sharia law and Sunnah. However, the website of Afghanistan’s Ministry of Justice still has the 2004 Constitution as ‘Afghanistan’s enforced Constitution’. Additionally, the Taliban have not issued any formal statement about the status of other laws in the country, particularly the 2017 Penal Code.
While both the 2004 Constitution and the 2017 Penal Codes adhere its conformity with the Sharia Law principles, the Taliban’s stand on Sharia law principles is still unclear. Additionally, the Taliban’s regime is a ‘highly underspecified’ and ‘under-theorized political system’ with a primary focus on warfare while never formalizing government structure.
While introducing their Interim Administration in September 2021, a Taliban spokesperson stated that they are working on a permanent administration. No timeline or a potential transition for the establishment of a permanent government was announced. Accordingly, the prospect of a written constitution, and penal code under the Taliban rule seems unlikely in the foreseeable future.
The efforts in rebuilding Afghanistan’s judiciary and improving the rule of law albeit the major shortcomings in fulfilling that promise will remain an important legacy of the Bonn Agreement
Consequently, under the Taliban regime, the justice system in Afghanistan is non-functional with no judicial independence as it was recognized under the 2004 Constitution. In January 2023, the UN reported that ‘legal professionals in Afghanistan face extreme risks to their safety, and lawyers still practicing must navigate a deeply challenging, non-independent legal system.’ Expressing grave concern about the situations faced by lawyers in Afghanistan, the report further stated that ‘[…] the human rights abuses resulting from the dismantling of the independent legal system, and its replacement with a de facto system that flagrantly violates international standard.’
After more than two years in power, the Taliban’s interim administration is struggling to maintain territorial control amid the world’s worst humanitarian catastrophe and a total economic collapse. At the same time, there seems to be no appetite for direct engagement with the Taliban’s de facto administration among the Western world, at least at the time being.
In the face of widespread human rights abuses and their arbitrary and uncodified laws, the lesson from history suggests that totalitarian regimes like the Taliban are susceptible to failure. Therefore, the important legal developments that took place under the framework of the Bonn Agreement such as the 2004 Constitution and the 2017 Penal Code will prove fundamental in a post-Taliban Afghanistan for a national accountability of international crimes.
Accordingly, the Bonn Agreement had envisaged that the establishment of a representative, accountable government with impartial institutions would be the remedy to transition Afghanistan from post-conflict devastation to a better Afghanistan. The efforts in rebuilding Afghanistan’s judiciary and improving the rule of law albeit the major shortcomings in fulfilling that promise will remain an important legacy of the Bonn Agreement. Not only the achievements in realizing the Agreement’s vision for Afghanistan have laid the institutional foundations for a better country but importantly the failures to achieve those objectives will serve as an important lesson learned for the future.
Azadah Raz Mohammad is a PhD candidate at the University of Melbourne in Australia, where she focuses on international crimes and jurisdictions.
