The Afghanistan Independent Bar Association (AIBA) was established under Afghanistan’s 2007 Advocates Law. Prior to the establishment of the AIBA, legal practice in Afghanistan was administered by the Ministry of Justice (MoJ). The AIBA was established in compliance with international standards and the legal profession’s principles. For instance, the establishment of the AIBA itself was based on Article 31 of Afghanistan’s 2004 Constitution, currently disavowed by the Taliban, which provides for, inter alia, the right to have access to a lawyer upon arrest. The mentioned provision is in compliance with the principles adopted by the United Nations as the “Basic Principles on the Role of Lawyers”.

The AIBA was authorized to administer legal practice in Afghanistan from 2008 (after its physical establishment) until shortly after the Government of the Islamic Republic of Afghanistan (GoIRA) collapsed on August 15, 2021. It was organized to have a General Assembly, President, Vice President, Executive Council, and members. As the name suggests, the AIBA was a non-governmental, independent and self-governing entity. The AIBA was designed to be in compliance with standard 17 of IBA Standards for the Independence of the Legal Profession (adopted 1990).

Bar associations and similar entities are internationally recognized as having a significant role in the administration of justice and upholding the rule of law in their respective jurisdictions. The AIBA had assumed that role in Afghanistan. It was engaged with training newly admitted lawyers in an attempt to prepare them to defend their clients as required by the law. Additionally, it was a member of the Legislative Committee of the GoIRA, commenting on proposed legislation. Furthermore, it was engaged with international organizations in implementing legal awareness programs. It had assumed a role to ensure compliance with basic rights for all during judicial and prosecution procedures in the country.

Lawyers registered with the AIBA were also attentive to the AIBA’s development in particular and Afghan legal developments in general. For instance, the author during his term as the Executive Director of the Afghanistan Center for Commercial Dispute Resolution (ACDR) and the AIBA negotiated a Memorandum of Understanding in February 2020 to educate newly admitted lawyers on alternative dispute resolution, which was at the time seen as a prominent legal development in Afghanistan. The AIBA and its assigned committee were receptive to the idea. This demonstrates the adherence of the AIBA with international standards and principles on legal education for lawyers.

Administration of Legal Practice under Taliban Rule

The AIBA reportedly had close to 6000 registered lawyers, both male and female, until the Taliban ordered it to cease operations at the end of 2021. Afterwards, the Taliban once again authorized the MoJ to administer the affairs of lawyers. This is in line with policy during the first period of Taliban rule in Afghanistan. Article 3 of the 1999 Advocates Law (during that period) states that “managing and leading the affairs related to advocates shall be performed through the Ministry of Justice.”

The Taliban has now established a Directorate of Advocates within the MoJ to administer lawyer-related affairs. All the lawyers formerly registered with the AIBA have to appear for an assessment by the directorate which will determine whether or not the lawyers undergoing the process can keep their licenses to practice law. Among other things, the assessment includes questions regarding Sharia law (commonly referred to as Islamic law). It is further reported that female applicants are not allowed to take part in the process.

The incorporation of the administration of legal practice into the MoJ is recognized to be against the principles of independent legal practice. It is further identified by the UN Special Rapporteur on the situation of human rights in Afghanistan and the Special Rapporteur on the independence of judges and lawyers that independent legal practice in Afghanistan is currently at severe risk and the present structure contradicts the principles of inclusion and non-discrimination in legal practice.

The AIBA in Exile

This year the International Day of the Endangered Lawyer, observed on January 24, 2023, was focused on the situation of legal professionals and the practice of law in Afghanistan. On that day the Council of Bars and Law Societies of Europe (CCBE) – in collaboration with the AIBA, the International Bar Association (IBA), and French-speaking Brussels Bar –  officially announced that the AIBA in exile will be reopened in Brussels. It will be hosted by the French-speaking Brussels Bar. These efforts are being carried out by the organizations in coordination with the AIBA’s leadership in exile.

It is hoped that establishing the AIBA will serve the following goals:

• Preserving the values and achievements of the AIBA as an independent entity;
• Preserving judicial independence;
• Continuing to promote the rule of law, the protection of fundamental rights and the prevention of human rights violations;
• Provision of a forum for the AIBA members for the interconnection of lawyers;
• Provision of services to its members;
• Working to ensure the safety of its members;
• Acting as a focal point for international efforts to support lawyers whose lives are in danger in Afghanistan; and
• Informing the international community about the situation in Afghanistan, particularly about the justice system, the rule of law, and human rights.

Conclusion and Recommendations

Numerous international organizations and agencies affiliated with foreign governments worked for almost two decades in the areas of rule of law and access to justice in Afghanistan during the GoIRA. Their efforts enabled the establishment of the AIBA. It should be a continued duty of these organizations and agencies to support Afghan lawyers and legal professionals under conditions when they need it the most. It is further incumbent upon these organizations, given their resources and being part of the same profession which comes with responsibilities towards other professionals, to help those endangered in Afghanistan due to their profession. In doing so, affiliation with certain organizations should not be a requirement as it has been in the recent past but a more inclusive policy should be adopted if the goal is to provide better support.

Furthermore, international organizations such as the UN and the international community should make public statements in support of legal professionals in Afghanistan, among other vulnerable groups, who have worked to strengthen the rule of law and to protect the rights of people, often putting their lives in danger. In doing so, the organizations and the international community should organize and implement a mechanism of support for these individuals.

Additionally, those Afghan legal professionals who have already found a way out of the country should be supported by their host governments in their efforts to seek professional employment. The bar associations or similar entities in host countries are morally obliged to help them with their continued legal education. These organizations are immensely useful in providing help to their colleagues and identifying those at risk. They should be made a part of ongoing efforts to help Afghan legal professionals continue their careers.

The AIBA in exile is expected to seek the assistance of its members around the world to build and implement programs to support its members in Afghanistan as the entity will be once again the first source to approach for its members. In addition, the AIBA in exile is expected to adopt an inclusive policy of assisting other legal professionals in Afghanistan as its resources permit.

Zahid Omarzai is a Senior Associate Attorney at a law firm in Kabul, Afghanistan. He was the head of Afghanistan’s Center for Commercial Dispute Resolution during the GoIRA through which he founded institutional arbitration and developed other alternative dispute resolution mechanisms in Afghanistan, which are currently used by private parties in the country given certain judicial limitations.