Starting from August 5th, the Taliban marched across Afghanistan in only ten days, seizing control of villages and cities across the country. They eventually took over the entire country on August 15th. After conquering the presidential palace, the historical seat of Afghan power, Taliban officials declared the establishment of an Islamic Emirate, vowing to re-configure the fundamental institutions of the former Afghan government. The Taliban’s acting justice minister pledged in September to replace the Islamic Republic’s constitution (2004) with 20th-century monarchy-era legislation (1964), thereby abolishing the 2004 Constitution. That being said, the group has not yet taken any steps to re-enact the monarchic constitution of 1964. For now, they confined themselves to generally implementing their own interpretation of Sharia (Islamic principles). While handling some minor issues, the Taliban’s interpretation of Islamic principles does not equal an organized set of laws that can formally be adopted and enforced across the country. This situation in turn leads Afghanistan towards a state of lawlessness.
The justice minister also added that only those laws and international treaties that are not “against Islam and the Taliban administration” would be respected by the Taliban. Nevertheless, there is no accurate account of how the Taliban would interpret those laws and treaties and decide on whether or not they conform to Islamic rules and the Emirate’s governance style.
Furthermore, since August 15th, the humanitarian situation in Afghanistan has deteriorated dramatically, as lawyers and judges encountered an overwhelming wave of threat. In November, the Taliban troops attacked the headquarters of the country’s only Independent Bar Association, detaining and threatening its members and staff. They closed the association and decided to incorporate it into the Ministry of Justice. Taliban officials have also ruled that only Taliban-approved lawyers were permitted to practice in their Islamic courts, thus canceling the licenses of 2,500 Afghan lawyers. According to legal experts, the Taliban’s proclamation flouts the international principles granting those accused of crimes the right to have access to impartial legal counsel in order to undergo a fair trial. The discarding of the Afghan Penal Code also gives the Taliban officials full authority to proceed with their desired style of trial and punishment.
Against this backdrop, it is important to assess how the immobilization of the Afghan judicial system by the Taliban and the current state of lawlessness in the country impinge on the security of citizens as well as that of the country as a whole.
The status quo has morally energized robbers and bandits to not only steal from ordinary people but to loot the Taliban’s government budget as well. As such, in late December, a group of armed men robbed approximately 450 million Afghanis of the coal money from Taliban forces on the Mazar-e-Sharif-Samangan route. The incident resulted in a clash between the Taliban forces and thieves in the middle of the road, in which two Taliban force members were killed. This happens while passengers on the Kunduz-Baghlan route had also expressed their concern about increasing armed robberies on the highway. For the crime of theft, Taliban do not pursue an erga omnes style of punishment in every case. In some cases, they have cut the hands of the thief, while in some others they have only threatened to do so. In a number of other cases, they have completely discarded this model of punishment and have only blackened the faces of the thieves. The erratic and sporadic implementation of such models worsens the security of victims as well as those accused with theft. This is because the suspect cannot foresee what kind of punishment would await him/her. On the other hand, the prospective victims will also be over-exposed to robbery in areas where the Taliban only blacken the face of the thief.
As Afghanistan faces economic collapse and humanitarian disaster, a rise in violent crimes and fear of civil upheaval are adding to the pressures faced by people already grappling with rising costs, disappearing currency, and unemployment. Following the takeover, the kidnapping cases have exponentially increased in Western Afghanistan, especially in Herat province. Although the Taliban authorities hanged four bodies of alleged kidnappers to deter future abductions, their punishment style proved fruitless as, on December 24th, again a band of armed men beat and abducted four boys on their way to school. The incident has provoked fear and concern among Afghan families who send their boys to schools. Still further, the state of lawlessness has even empowered the Taliban authorities themselves, to threaten the security of citizens and destabilize the country. Although the group had declared amnesty to all members of the former Afghan security sector, they have either abducted or killed over 100 former Afghan security personnel since taking power in August. It is possible that the true figure might be significantly higher. According to the Human Rights Watch, the Taliban leaders told the members of the surrendering Afghan National Security Force units to register with them in order to acquire a letter ensuring their protection. The Taliban, on the other hand, have exploited similar checks to imprison and summarily execute or forcibly disappear people within days of registering, leaving their bodies for relatives or communities to locate. No single law is currently enforced in the Afghanistan to stop the Taliban authorities from carrying out such operations. Neither is there an independent court where the Taliban can be sued for their conduct of unlawful punishment and killing.
Article 3 of the Universal Declaration of Human Rights (UDHR) provides that “everyone has the right to life, liberty, and security of person.” Article 9 of the International Covenant on Civil and Political Rights (ICCPR) also re-iterates that “everyone has the right to liberty and security of person.” In general, the personal security is linked to liberty, and it includes the right to freedom from being wrongfully imprisoned and punished. Security of person can also be viewed as broadening of rights based on freedom of movement and rules against torture, cruel and unusual punishment. This shows how the basic right of “security of person” has been forfeited by the Taliban in the mentioned robbery and kidnapping cases. That being said, it is even not yet clear whether the Taliban will consider to conform to the UDHR and ICCPR, as they will do, or refuse to do so according to their own interpretation of Islamic principles and international declarations. This in turn exposes the citizens to more cruelty and wrongful punishment, absent any relevant law or judicial channel that would hold the Taliban’s government accountable for their field-court trial system, or at least prevent them from implementing such trial and punishment models.
Maryam Jami is a researcher at the Institute of War and Peace Studies (WIPS).
Suggested citation: Maryam Jami, The Lawless Land: How Does the Taliban’s Abolishing of Afghan Laws Affect Citizens’ Security?, JURIST – Academic Commentary, January 11, 2022, https://www.jurist.org/commentary/2022/01/maryam-jami-lawlessness-taliban-afghan -laws-citizens-security/.
This article was prepared for publication by Nandini Dwivedi, a JURIST staff editor. Please direct any questions or comments to her at commentary@jurist.org
