Afghanistan is set to enter a new phase of a turbulent period that began in the 1970s when competing political agendas led to armed conflict and the Soviet invasion in December 1979. However, there is little consensus on what the immediate future holds for Afghans. Opinion varies from cautious optimism to catastrophic doomsday scenarios. Human rights observers and in-country activists tend to be particularly pessimistic. They note with increasing concern that the gains of recent years, especially in relation to the rights of women and girls, are in danger of being eroded or worse.
It is worth recalling that the promotion of human rights in Afghanistan is not a new phenomenon. Since the formation of the Afghan state in the mid-18th century, the country has been buffeted by agendas that pursue or oppose reforms concerning the rights and status of women in society. The country’s contemporary history has, in part, been shaped by the geopolitical agendas of neighbours and more distant states.
The zigzag pattern of gender rights in Afghanistan’s history includes that of Malalai, a Pashtun heroine who rallied her countrymen to victory over British troops at the battle of Maiwand in 1880. She remains an important inspiration. So too do the reforms pushed through by Amir Abdur Rahman Khan a short while later. He forbade child marriage and abolished customs that obliged a widow to marry her brother-in-law. King Amanullah and his wife, Queen Soraya (1919-29) introduced reforms that discouraged polygamy. They abolished forced marriage and the practice of bride price. They also advanced health care and education for women. The first Afghan constitution in 1923 accorded equal rights to women and men, but reform initiatives, including those set out in the 1964 constitution that gave women the right to vote, were often met with stiff resistance, ignored, or overturned.
Problems became apparent early on but there was little interest in Washington or elsewhere in revisiting a version of democracy that was clearly dysfunctional. It was deemed ‘good enough’ for Afghans, who live and die with the consequences of structural injustices and a massive human rights deficit.
Afghan history did not inform the politics or policies that emerged in the wake of 9/11 to strengthen the promotion and protection of human rights in Afghanistan. The creation of an environment conducive to respect for human rights was shaped by the launch of America’s B-52 bombing campaign that quickly led to the demise of the Taliban regime. The routing of the Taliban brought to power individuals routinely described as warlords. The ability of Afghans to secure respect for their human rights has been greatly circumscribed by the role of these ‘strongmen’ who have dominated Afghan politics since the end of 2001.
A variety of factors affect the ability of Afghans to enjoy the rights that are inherent to all human beings. The resurgence of armed conflict, democratisation and state-building processes all have serious human rights implications, in addition to the imposition of a neoliberal model of governance. Additionally, there are contradictions evident in the rhetoric of states that advocate respect for human rights while flouting international law in the name of the Global War on Terror (GWOT) in Afghanistan. The prevailing situation requires reflection and a change in strategy to consolidate the gains and reverse the harmful patterns of recent years.
Flawed peace and democratisation
The arrival of US forces in northern Afghanistan shortly after the 9/11 attacks in the US coincided with the initiation of arrangements for a post-war transition to democratic governance in Afghanistan. This led to the organisation of a conference that, after nine days of deliberation, resulted in a framework known as the Bonn Agreement. Signed on 5 December 2001, this agreement was negotiated under United Nations auspices and US influence. It was not a peace treaty in the sense of a consensus or compromise between belligerents on power-sharing involving different elements of Afghan society. It was, essentially, a deal between US-backed mujahideen who had fought the Soviet occupation in the 1980s. However, many of these individuals were reviled by the majority of Afghans, given allegations of their responsibility for heinous crimes. These abusive commanders are also responsible for the devastation and destitution that occurred during the factional fighting of the early 1990s that triggered the rise of the Taliban movement.
The Bonn Agreement, at least on paper, established a roadmap for the formation of an elected government and the development of infrastructure crucial to the effective functioning of a democratic state. Among its many flaws was the non-inclusion of the Taliban, minority representatives, and Afghans who championed respect for human rights. The Agreement sidestepped the issue of impunity linked to warlordism and the absence of accountability processes. It failed to address the structural problems that have polarised Afghan society such as non-inclusive and hierarchical governance arrangements.
Most Afghans were pleased that the US was committed to bringing about the conditions necessary for the development of effective governance and the stability required for economic reconstruction. During a press conference in October 2001, President George W Bush made it clear that the US was “aggressively pursuing the agents of terror around the world” while, simultaneously, working to build a stable Afghanistan. In subsequent remarks, Bush underlined that the Taliban was “a regime at war with women” while his administration would work “for a new era of human rights” aimed at ending the oppression of women in Afghanistan.
Thirteen years later, few will dispute that the results of democratisation have fallen short of what was promised to Afghans in 2001. The GWOT agenda and the war in Iraq took precedence over effective state-building. Problems became apparent early on but there was little interest in Washington or elsewhere in revisiting a version of democracy that was clearly dysfunctional. It was deemed ‘good enough’ for Afghans, who live and die with the consequences of structural injustices and a massive human rights deficit. According to an article in the New York Times, officials in President Barack Obama’s administration, prior to the May 2012 NATO Summit meeting in Chicago, knew that democratic benchmarks were not being met and concluded that the overall US endeavour would not result in a credible government and functioning state infrastructure.
The problems Afghans are set to inherit in 2014 are more difficult than the issues that confronted Afghans in the immediate post-Taliban period. Afghans must now contend with a raging insurgency and a governance system that is devoid of meaningful checks and balances. They must also contend with a political culture that is distorted by deals that maintain an uneasy alliance between an Executive Presidency and abusive power holders that thrive on impunity and predatory patronage politics. The absence of inclusive and accountable governance has seen Afghanistan categorised as authoritarian and ranked 152 out of 167 countries reviewed in the 2012 Democracy Index.
The Bonn state-building project ran into problems shortly after it was launched. As far back as 2004, a survey conducted by the Afghanistan Independent Human Rights Commission (AIHRC) found that 90 percent of Afghans wanted human rights abusers removed from their posts and 76 percent felt that prosecuting war criminals would “increase stability and bring security”. However, US perspectives, priorities, and policies were the chief drivers of Afghanistan’s transition programme that was shaped by the perverse logic of the Global War on Terror. The dictates of expedient politics led to the empowerment of US allies, notwithstanding their warlord credentials.
The precariousness of lives in Afghanistan can be linked to the flaws inherent in the Bonn Agreement and the limited success of the state-building and democratisation process.
The Bonn juggernaut – a series of events and processes including constitutional and judicial commissions and a Loya Jirga or ‘Grand Council’ to ratify the new Constitution – was geared, ostensibly, towards building a foundation for democratic governance including presidential and parliamentary elections in 2004 and 2005 respectively. In reality, however, the Bonn process served to entrench the rule of military commanders accused of systematic human rights violations including extrajudicial killings, rape and torture. At the end of 2002, Human Rights Watch expressed concern about “resurgent warlordism”, including patterns of intimidation, the extortion of money from individuals, businesses and ethnic minorities, as well as the use of threats and violence to advance particular objectives.
The Bonn process failed to provide the political space needed to roll back the injustices that have devastated Afghanistan. It exacerbated the problems inherent in the absence of accountability for well-documented war crimes. Although the Bonn process was implemented under the auspices of the UN, it effectively glorified a jihadist culture antagonistic to human rights and governance that was legitimate in the eyes of Afghans. Contrary to the Bonn Agreement, armed strongmen were not disarmed. Many have been close advisers to President Karzai, who uses their allegiance to control matters of state. At their behest, he signed into law a 2007 bill adopted by Parliament that provides a blanket amnesty for war crimes. This legislation came to light after the 2009 presidential elections that were marred by widespread fraud and horse-trading linked to securing Karzai’s victory. One of the many difficulties that Afghans inherit in 2014 is a Parliament in which some lawmakers are among the country’s chief lawbreakers. Such parliamentarians have a history of promoting legislation advantageous to their particular interests and, frequently, antagonistic to the rights of women and girls.
Afghanistan lacks effective checks and balances, namely constitutional and institutional limitations, on the power vested in the Presidency, Parliament and Judiciary. This has stunted the emergence of transparent, inclusive and accountable governance. Real power rests in the hands of those who operate above the law for both political and private gain. As a result, there is little actual rule of law in Afghanistan in that there is no effective separation of powers. The Judiciary is corrupt and often used as a tool to safeguard the interests of influential ‘strongmen’, who routinely interfere in the judicial process. The average Afghan citizen has limited or no access to justice and most have little confidence in the formal justice system.
Corruption and impunity operate in tandem to produce a corrosive system of governance that endangers the human security of a huge swathe of Afghan society. In Transparency International’s corruption index, in 2013 Afghanistan shared the lowest ranking, together with North Korea and Somalia, of 177 countries.
The criminalised framework which passes for rule of law is fundamentally at odds with the government’s human rights obligations. These include, importantly, the right to life and personal security, non-discrimination, freedom of opinion, and equal treatment before the law. Structural problems and systemic failures undermine respect for, and the realisation of, tangible human rights outcomes. These include a police force accused of murder, rape, bribery and other forms of corruption such as involvement in the drug trade. Deeply entrenched prejudices that help sustain the second-class status of Afghan women and girls are often compounded when female victims seek help from the police. Frequently, they are further victimised and held responsible for so-called moral crimes that encompass ‘running away from home’ often as a result of domestic abuse, forced marriage, and alleged adultery including incidents of rape.
In 2005, bending to US pressure, the government agreed to the organisation of local militia groups, subsequently called the Afghan Local Police (ALP), with the support and guidance of Washington. The ALP was presented as a traditional and sustainable Afghan answer to growing insecurity. Time has shown, however, that militias, whatever their branding or backing, produce mixed results. This is particularly the case when they are poorly trained or deployed in the context of local feuds or efforts to combat the armed opposition. For example, at the beginning of 2013, news of atrocities began to emerge from Wardak province near Kabul. Allegations about the role of the ALP and US Special Forces in the abduction, torture, and extrajudicial killing of ten villagers persist. Such allegations also raise questions about the role of the ALP operating under the control of local commanders or others who are contemptuous of human rights.
A poor rule of law situation, coupled with predatory politics, is a significant factor in the structural violence that permeates Afghan society. Rampant injustices sustain appalling levels of poverty and marginalisation. Notwithstanding some gains in terms of improved access to health care and education, child malnutrition is widespread. More than a third of Afghans struggle to survive in undignified and life-threatening conditions of extreme poverty. A huge proportion of Afghans have limited capacity to withstand shocks that put their life at risk, given high levels of vulnerability and powerlessness. The precariousness of lives in Afghanistan can be linked to the flaws inherent in the Bonn Agreement and the limited success of the state-building and democratisation process. The right to life has also been jeopardised by the unwillingness of the Karzai regime and its backers to acknowledge and address the many problems that contributed to the resurgence of the Taliban movement and the spread of armed conflict in Afghanistan.
The politics of war
The rationale for going to war in Afghanistan has changed over time, and so have US and NATO policies. Objectives and related narratives have ranged from keeping the US and allied countries safe while fighting al-Qaeda, to demonstrating NATO’s relevance in a post-Cold War context. International Security Assistance Force (ISAF) troops were deployed to Afghanistan in 2003 to fill a security vacuum while state-building and democratisation took hold. NATO was subsequently used to fight a resurgent Taliban and combat a spreading insurgency. By 2013, the US focus had reverted to a counter-terror mode of operation while simultaneously reassuring Afghans that America remained invested in their human rights and democratic future.
US airstrikes and the increasing use of asymmetric warfare tactics by the armed opposition contributed to a growing toll of civilian casualties and competing narratives on the rationale for war. The emergence in 2008 of a revised counter-insurgency narrative on the importance of ‘winning hearts and minds’ saw aid being used as a weapon to win the loyalty of communities in contested areas. The instrumentalisation and militarisation of aid undermined poverty reduction and humanitarian work as resources were prioritised for particular war-affected areas. Such resource allocation was frequently to the detriment of those who were most vulnerable, and hindered the ability of relief and other personnel, such as human rights activists, to remain engaged and do so productively in volatile locations.
The emergence in 2008 of a revised counter-insurgency narrative on the importance of ‘winning hearts and minds’ saw aid being used as a weapon to win the loyalty of communities in contested areas.
At the same time, the armed opposition benefited from growing Afghan disillusionment with corruption, the poor record of the Karzai regime, and widespread poverty in a context of growing economic disparities. The Taliban expanded its presence as Afghans became increasingly disgruntled with democratic processes antagonistic to social justice objectives. The Taliban and its allies also gained influence by the astute exploitation of grievances and a sophisticated use of modern communication technology, while emphasising their opposition to the US-led occupation and their commitment to Islam and Sharia law.
The ramifications of the Global War on Terror for human rights in Afghanistan have been tremendous, but have received relatively little attention in and outside the country beyond those who are directly affected. The intensification of the war in line with the Obama administration’s 2009 troop surge, coupled with the planned departure of most, if not all, NATO personnel by the end of 2014, involved a revamping of counter-terror tactics. This led to increased reliance on the use of Special Forces, night raids, drones and related surveillance programmes.
The execution of GWOT in Afghanistan has led to a long list of violations of international human rights and humanitarian law. Tactics have changed over time but involved a network of formal and informal detention facilities. These were used to detain, interrogate and hold suspects, without trial, for periods of months or, in some instances, several years. Such practices were compounded by rendition – the abduction and extrajudicial transfer of individuals from one country to another for interrogation – or what has also been termed ‘torture by proxy’. This has scarred the lives of many Afghans and their families.
The Bagram Detention Centre near Kabul was run exclusively by the US until 2013. Its notorious reputation for ‘enhanced interrogation’ and torture leading to the death of two inmates in 2002 became public knowledge in 2005. A US army confidential file obtained by the New York Times showed that human rights violations associated with the infamous Abu Ghraib prison in Iraq were not an aberration but part of an established pattern. Documentation showed that the mistreatment of prisoners in Afghanistan was routine. Violations ranged from shackling inmates to ceilings, sleep deprivation, physical abuse, and sexually humiliating treatment, to the use of attack dogs to threaten and intimidate inmates. Treatment and conditions subsequently improved significantly in Bagram, but inmates have been denied their due process rights. Many are not informed of the reason for their detention, and are unable to challenge their incarceration in a court of law.
Night raids, mostly conducted by, or at the behest of, US and other NATO undercover agents, are controversial and resented by many Afghans. Such raids remain a point of contention between Kabul and Washington given the methods involved and the harm to lives and property. The human cost in terms of lives lost to armed conflict since 2001 include some 20,000 civilian casualties. The number of civilian deaths attributed to US and other pro-government forces has declined in recent years. Casualties attributed to the armed opposition – as a result of targeted and indiscriminate attacks and other tactics – have increased and in 2013 accounted for 74 percent of civilian war deaths and injuries.
Opinion varies in Afghanistan regarding the desirability of a continued US military presence. There is broad consensus, however, that civilians should not be subjected to the horror and devastation of war. Many Afghans echo the findings of a public opinion poll conducted in 2008 in countries as far-flung as Egypt, Indonesia, Turkey, Nigeria and Pakistan. US policy was widely seen as “hypocritically failing to abide by international law… and using its power in a coercive and unfair fashion.” Perspectives on the war in Afghanistan are shaped by incidents such as a botched nighttime raid in Gardez in early 2010. It resulted in the death of five civilians including three women, two of whom were pregnant, and two government officials. After protests, a US military investigation concurred that the dead were civilians and apologised for the deadly raid, which was conducted on the basis of erroneous information. But such apologies are rare, and so are accountability procedures for incidents that are contemptuous of the rights of Afghans and international law.
The legacy of GWOT in Afghanistan is one of high human costs and blatant disregard for international treaties and norms while advocating respect for human rights and improved rule of law. Only time will tell what this legacy entails for civil society and other actors invested in building a nation where the rights of all are respected. In the meantime, competing narratives on values – crudely summarised as human rights versus Sharia law – against a background of intensified warfare, have greatly impacted gender equity and human rights initiatives. Such initiatives are often depicted or perceived as promoting values that are alien to Afghan culture and traditions. Dueling narratives have also brought to the fore opposing views on the future direction of the country, as different groups vie for attention and influence. Perceptions of human rights agendas may end up playing an increasingly important role as the post-2014 transition unfolds.
Need for a new compass?
There are few commentators on the human rights situation in Afghanistan who have offered an upbeat perspective as the country navigates forthcoming elections and a post-ISAF transition that is likely to be turbulent.
When UN High Commissioner for Human Rights Navi Pillay visited Afghanistan in September 2013, she expressed concern that the momentum for human rights was waning. She talked about an “ominous rise in civilian casualties”, endemic violence against women, and the appointment of conservative Commissioners to the AIHRC.
Sima Samar, Chair of the AIHRC, noted in December 2013 that the establishment of the AIHRC was an important achievement. However, she expressed concern about the NATO drawdown and initiatives to make a deal with the Taliban to end the war. Samar warned that such initiatives were in danger of being used by conservative power brokers to roll back legislative gains for gender equity. She made specific reference to legislation on the Elimination of Violence Against Women (EVAW) that became law as a result of a presidential decree in 2009. Implementation has been poor – the UN estimated that in 2012 only four percent of all reported incidents of violence against women were adjudicated in line with EVAW legislation. When Parliament was asked to ratify the decree last year, the initiative had to be withdrawn after only a few minutes amidst accusations that EVAW legislation was against Sharia law.
During this past year Human Rights Watch has repeatedly noted that the rights of Afghan women are being eroded, and demanded urgent action by the government and foreign donors. It warned that Afghan rights were at risk as the military drawdown unfolded and expressed concern that “the backlash resulting from diminished international attention and support threaten much of the progress that has been achieved.”
Unquestionably, there have been many changes in human rights, both positive and negative, since the commencement of the Bonn process, and the country is facing daunting challenges in the immediate future. Afghan and other proponents of human rights have valid concerns about the sustainability of achievements to date. However, there has been limited reflection within the human rights community on the approaches taken to advance the human rights of Afghans. Few will disagree that there has been a high level of reliance on Western leverage and largesse. Donor influence and support was used to push through legislation that involved sidestepping parliamentary processes, and many civil society entities followed the agendas and timelines of external donors.
Many Afghans have worked with laudable determination and courage to bring about durable change, but recent years have echoed the earlier reform projects of Amir Habibullah Khan, Queen Soraya Tarzi and King Amanullah Khan. A preference for top-down legislative change meant that there has not been much grassroots mobilisation, even as the new and vibrant media has played an important role in enlarging the space for exchange of views and ideas. Human rights activists have had a tendency to operate in a relatively tight circle given security concerns and other factors such as the limited number of civil society entities involved in the promotion of human rights in Pashtun areas. Much of society has not engaged in a national dialogue on issues that have a long and contentious history in Afghanistan, including the status of women in particular.
Whether human rights are seen as moral principles or as legal guarantees, the notion that all individuals are entitled to be treated with respect and live a dignified life is not a new or alien idea to Afghanistan.
At the same time, Afghanistan is not the same country that went to war in December 1979. It has been radically affected by the Bonn process that Afghans inherited in December 2001. Afghanistan has also been affected by the massive change underway in the global power equation since the end of the Cold War. The lives of a rising wave of Afghan youth – over helf the population is between 15-29 years old – will unfold in a world experiencing rapid transformation resulting from accelerated globalisation processes, information technology, and geostrategic agendas driven by the erosion of Western power and influence. The drivers of a changing global order will also shape perceptions of human rights, as well as notions of justice and self-determination, in Afghanistan and elsewhere.
Looking at Afghanistan in 2014, it is perhaps worth underlining that human rights are not abstract concepts detached from everyday life. For many Afghans, peace and human rights are synonymous with security and the ability to earn a living. Whether human rights are seen as moral principles or as legal guarantees, the notion that all individuals are entitled to be treated with respect and live a dignified life is not a new or alien idea to Afghanistan. On the contrary, what is different in terms of the modern human rights movement that emerged in the latter half of the 20th century is that the end of East-West confrontation radically altered opportunities for the promotion of human rights. So too did the wars and the onward rush of globalisation that have greatly changed the world since 9/11.
In the 1970s, Cold War ideologies and geopolitical posturing gave leverage to the notion that individuals should not be victimised by oppressive states, particularly when these were Eastern Bloc countries. In the 1990s, human rights gained new proponents. However, the use of human rights as a foreign policy tool by many Western governments greatly eroded the moral grounding and legitimacy of the discourse, and by the dawn of the 21st century, human rights were a justification for different US-led military interventions. These interventions often occurred with the blessing of Western-based human rights entities. This began to feed a growing chorus of concern, particularly in the Global South, that human rights were part of a hegemonic agenda. A short while later, the role of GWOT in bringing about regime change in Afghanistan and Iraq fuelled a new round of questions. These include concerns about the role of human rights in a changing global order, in which wealth is often accumulated and concentrated at the expense of economic and social
An emerging debate on the role of the Western dominated human rights movement in relation to the injustices integral to existing models of economic globalisation has yet to make an appearance in Afghanistan. There is limited acknowledgement, particularly among non-Afghan human rights proponents, that the promotion of human rights by powerful states with questionable rights records, at home and abroad, is problematic. There has been limited reflection in Kabul and elsewhere on the utility of the traditional and much used tactic of ‘naming and shaming’ in a context devoid of the leverage that comes with political support or mass mobilisation. In addition, there is little evidence that Afghan human rights activists have drawn lessons from the Arab uprisings, and the importance of indigenous initiatives that fight oppression in a manner that reflects the values shared by those who desire political change.
As Afghans ponder their future and the measures needed to give effect to their human rights aspirations, it is important that they draw appropriate lessons from past and recent experience. Afghans are confronted with a state structure that is more a part of the problem than the solution in terms of upholding human rights. To a significant degree, human rights proponents constitute a disparate group of civil society and other activists who have yet to coalesce and operate in a cohesive and strategic manner. Identifying an inclusive and indigenous strategy will be crucial for the realisation of progress that is sustainable in the immediate post-2014 period and beyond.
Afghanistan has a worthwhile tradition of consultative decision-making. This needs to be harnessed with genuine grassroots partnerships that focus on the priorities of affected communities. A broad coalition of citizens will likely prove the most effective and durable option in terms of challenging the policies, politics and societal norms that have made life precarious for the millions of Afghans whose dignity and human rights have long been trampled and ignored.
Norah Niland has worked in Afghanistan in several human rights-related roles, and is currently a Research Associate at the Centre on Conflict, Development and Peacebuilding, The Graduate Institute of International and Development Studies in Geneva.