Post-US Withdrawal Afghanistan: What’s Next?
The United States (US) withdrawal resulting in the Taliban blitzkrieg-like takeover of Afghanistan invited various reactions from the wider international community. On 24 August 2021, the United Nations (UN) High Commissioner for Human Rights, Michelle Bachelet, urged “all States to create safe pathways for Afghan refugees and migrants, broaden asylum and resettlement programs and immediately halt the deportation of Afghans who seek protection (OHCHR, 2021a).” The call for States to respect, protect, and fulfill the rights of Afghan refugees and asylum seekers has been amplified by various human rights and humanitarian bodies (Amnesty International, 2021; Human Rights Watch, 2021).
On 30 August 2021, the UN Security Council adopted Resolution S/RES/2593 (2021) as a response to attacks near Hamid Karzai International Airport in Kabul on 26 August. The attacks, of which the Islamic State in Iraq and the Levant (ISIS) claimed responsibility, resulted in the deaths and injuries of over 300 civilians and 28 military personnel (Reuters, 2021; United Nations, 2021). The Resolution “calls for strengthened efforts to provide humanitarian assistance to Afghanistan” through allowing “full, safe, and unhindered access” to the UN, its specialized agencies and implementing partners, donor and international humanitarian actors, and major Afghan refugee-hosting countries. Numerous human rights and humanitarian bodies have echoed the Security Council’s call (ICRC, 2021; International Rescue Committee, 2021).
Various actors have also called upon States to fulfill their responsibility to protect (R2P). According to the ABC (2021), the Asia Pacific Centre for the Responsibility to Protect claims that the killing of members of the Hazara minority by the Taliban indicates “the potential for crimes against humanity, ethnic cleansing and even genocide.” As such, “nations that have played a role in Afghanistan over past years, must not allow their withdrawal to place vulnerable minorities like the Hazaras in danger of atrocity crimes (ABC, 2021).” Similarly, the Global Centre for the Responsibility to Protect urges States to “uphold their responsibility to protect the people of Afghanistan (GCR2P, 2021).”
The international community’s reactions post-US withdrawal from Afghanistan raised several questions: what is the responsibility of conflicting parties jus post bellum, if any? Should the wider international community also be held responsible for the aftermath of war?
At the time of writing this article, much less has been said regarding the duty of the US after the conclusion of its invasion of Afghanistan through the lens of jus post bellum. Only Hilpold (2021) comes close with his analysis on the responsibility to rebuild. However, the lack of jus post bellum analysis does not equal the absence of precedence regarding pos-war responsibilities. In 1992, the then-UN Secretary-General, Boutros Boutros-Ghali, introduced the concept of post-conflict peace-building. According to Boutros-Ghali, post-conflict peace-building entails “action to identify and support structures which will tend to strengthen and solidify peace in order to avoid a relapse into conflict (United Nations, 1992).” As such, one can argue that one duty of the conflicting parties after a war is to prevent a recurrence.
The next question, thus, how could we prevent a similar atrocity from happening again?
First, one should refrain from understanding ‘recurrence’ merely as the reappearance of a conflict that involves parties similar to a preceding war. Here, the obligation of non-recurrence must be placed upon the conflicting parties and the wider international community from matters regarding the prevention of similar crimes to concerns about transitional justice. The transitional justice framework generally has four main pillars: truth-seeking, criminal prosecutions, victims rehabilitation, and guarantee of non-repetition (Pabón, 2018; Emtseva, 2021; ICTJ, n.d.). Thus, the transitional justice framework’s objectives are “to deter the recurrence of [violent] events, to restore public order, to correct the behavior generating violations, to rehabilitate victims and offenders, and to reconstruct society in such a way as to avoid future such manifest dysfunction (Wiessner & Willard, 2004).” Here, I would argue that the commencement of each pillar should not be the responsibility of warring parties only: the duty should also be bestowed upon the global community, not limited to States but also bodies such as the International Criminal Court (ICC).
For example, the UN Human Rights Council or other UN agencies and Special Procedures need to establish and initiate an independent truth-seeking mechanism. Such a call is already stipulated under Resolution A/HRC/RES/S-31/1, passed by the Human Rights Council on 24 August 2021 (OHCHR, 2021b). An independent, UN-led investigation is needed because reports claim “how routinely US officials lied about progress in the war,” particularly regarding human rights abuses and war crimes committed by US troops during the war in Afghanistan (Human Rights Watch, 2019). Supposed the duty to conduct investigations is bestowed only upon conflicting parties. In such a case, the US could manipulate the findings that fit its interests and, in turn, question the validity and independence of the fact-finding commission.
Furthermore, regarding the criminal prosecutions, the ICC must exercise its jurisdiction to bring those committing atrocity crimes to justice. As a Party to the Rome Statute, the new Taliban-led Afghanistan government must provide access to the ICC’s Office of the Prosecutor (OTP) to conduct preliminary examinations to determine whether there is sufficient evidence of ICC crimes, such as genocide, crimes against humanity, or war crimes, and whether there are genuine domestic proceedings. If the OTP obtained sufficient proof of ICC crimes, the alleged perpetrators must voluntarily appear before the ICC, or relevant domestic authorities must arrest them and transfer them to the ICC. ICC’s intervention is needed because historically, under the Taliban rule, law enforcement systems in Afghanistan heavily relied on the “ruthlessly enforced” Islamic Shariat system based on personal loyalties and tribal politics (Mohammad & Conway, 2003). If such a system is sustained under the new Taliban regime, I am skeptical that independent prosecution processes could be initiated within the country and, in turn, will give birth to the impunity culture.
Concerning the remedy for victims, the wider international community must work to achieve status quo ante bellum, i.e., the situation as it existed before the war. The victims of the war must receive pecuniary and non-pecuniary benefits, such as financial compensation, physical rehabilitation, public apologies from the warring parties, memorials, and other perks deemed necessary by the victims to restore their dignity. For instance, on 17 August 2021, the Taliban vowed to respect women’s rights in Afghanistan. Such a commitment shall be appreciated given the Taliban’s history of abuse towards women. One could assume that the vow was a form of remedy for victims of past abuses. However, when announcing the new Afghan administration two days ago, no women are visible in the new regime. Further, reports claim that the Taliban dismissed the Ministry for Women’s Affairs days before announcing the new cabinet (DW, 2021). These policy manifestations contradict the Taliban’s mid-August commitment. Further, it also injures the dignity of Afghan women who had fought hard to restore their rights.
If the impunity culture prevails, i.e., past human rights and humanitarian violations be kept unaddressed, achieving the objective of non-repetition will be challenging. Many authors argue that human rights abuses can be a prerequisite for violent conflict (Sriram, Martin-Ortega, & Herman, 2010). As such, both warring parties and the wider international community need to act swiftly to address past and current abuses in Afghanistan to prevent future conflicts. Here, I want to cite Bass (2004): “Sovereignty and territorial integrity are the bedrock of international relations, except in a few rare cases, such as those where a polity engages in genocide.”
Reference List
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