ILAC Rule of Law Report examines the state of access to justice in Afghanistan under the Taliban regime.
“Justice Matters: A Status Report on Afghanistan Since the Taliban Takeover” provides detailed insight into how courts throughout Afghanistan have gradually resumed functioning over the past 16 months, and the role of Afghan lawyers in advancing individual rights. Released on January 11, 2023, the report reveals that courts have been operating with irregular procedures and often without the use of any clear legal authorities, and the ability of Afghan women to access the justice system remains severely constrained and in some cases is altogether denied. Still, the report also demonstrates that civil society and Afghan lawyers have been able to achieve results including releases from detention and reduction in punishments.
The report provides a current analysis of how the justice sector vacuum is being filled by the Taliban while underscoring the importance of the international community not giving up on its 20-year investment in justice and legal professionals in Afghanistan. It is based on findings from interviews with 30 lawyers who remain in Afghanistan (across 20 of the country’s 34 provinces) and provides key recommendations for the international community.
ILAC plans to publish an update to this status report in late 2023.
“It has become extremely difficult for the international community to fully understand how justice is being delivered throughout Afghanistan after the Taliban regime threw out the legal standards and professionals from the previous government. Under these challenging and restrictive conditions it has been Afghan lawyers who are finding ways to advocate on behalf of their clients who are often Afghanistan’s most vulnerable and marginalized. There are avenues for international engagement and support of defense lawyers and civil society who are getting results – including releases from detention – that do not legitimize a regime that outright denies full access to justice for women and girls.”
Christopher Lehmann , Report Author and ILAC Board Member
Key Recommendations
- The international community should recognize that humanitarian assistance includes support to legal aid services in conflict-affected areas, or other efforts to address the legal needs of particularly vulnerable populations, including detainees.
- Increased and long-term funding by international donors should be made available to directly support the work of non-governmental organizations working to advance justice and human rights, including the rights of women and girls and to meet the legal needs of women and other marginalized groups. The international community should recognize that restrictions put in place by the Taliban regime make short-term or project-based funding more difficult to implement, and can put non-governmental organizations at risk. Support must necessarily be flexible given the many challenges they face, and should include the provision of long-term, core support to civil society organizations committed to providing legal aid services or otherwise supporting defense lawyers to defend individual rights. Flexible support is especially essential for the following:
- Women working for non-governmental organizations must be kept on payroll understanding that they cannot currently work, and organizations should be supported in their efforts to fight for incremental reforms.
- Afghan defense lawyers should be provided with financial support to register with the responsible department within the Ministry of Justice, including costs for required travel to Kabul to take the licensing exam.
- Afghan lawyers working to establish an independent lawyers union that will promote independence of the legal profession should be supported.
- Non-governmental organizations need to have contact with justice and judicial stakeholders and other government agencies to effectively fight for justice and human rights. Over the last year, such advocacy efforts have in some cases led to demonstrable results and have helped formulate policies in ways that promote better access to justice. It is important that the international donor community support such advocacy and recognize that sanctions regimes do not prevent these contacts.
- Given the significant use of informal justice mechanisms, such as local councils (ulemas, shuras and jirgas), to resolve criminal matters, and concerns that they may deprive women and other marginalized persons of due process protections, international donors should provide lawyers, legal aid providers and non-governmental organizations with funding to engage such local councils, and strive to educate them on positive, sharia-based practices that will ensure access to justice for those most marginalized.
“Rule of law assistance is humanitarian assistance. This is certainly the case in Afghanistan where there is an urgent access to justice crisis, especially for women and girls. And yet, there are strong and committed non-government organizations with experience fighting for individual rights, and momentum for an independent lawyers union that have taken up this mantle as a last line of human rights defenders in Afghanistan that would greatly benefit from international recognition and support.”
Christopher Lehmann , Report Author and ILAC Board Member
