Article 7 QD stipulates the requirements for actors of protection:
Article 7(1)(2) QD
Actors of protection
1. Protection against persecution or serious harm can only be provided by:
a) The State; or
b) Parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State;
provided they are willing and able to offer protection in accordance with paragraph 2.
2. Protection against persecution or serious harm must be effective and of a non-temporary nature. Such protection is generally provided when the actors mentioned under points (a) and (b) of paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and when the applicant has access to such protection.
At the time of writing, the Taliban control almost the entire territory of Afghanistan. As of 1 October 2021, the LWJ mapping of Taliban control in Afghanistan, last updated on 15 September 2021, considered 391 districts under Taliban control, Chahar Kint district in Balkh as contested, and 15 districts in Panjshir, Baghlan, Parwan, Kapisa, Wardak, and Takhar as having guerrilla activity.
During the insurgency, the Taliban positioned themselves as the shadow government of Afghanistan, and their commission and governing bodies replicated the administrative offices and duties of a typical government. They were described as becoming an organised political movement operating a parallel administration in large swaths of Afghanistan, and as evolving to become a local governance actor in the country by gaining and holding territory and thereby undertaking some responsibility for the well-being of local communities. In territories under their control, the group operated a parallel justice system based on a strict interpretation of the Sharia, leading to executions by shadow courts and punishments deemed by UNAMA to be cruel, inhuman, and degrading. However, an increasing number of Afghans across the country were reported to seek justice in Taliban courts due to feeling frustrated with the State’s bureaucracy, corruption, and lengthy processing times [Anti-Government Elements, 2.1. 2.5; Criminal law and customary justice, 1.8].
The lack of due process and the nature of the punishments would not qualify the justice mechanism operated by the Taliban as a legitimate form of protection. Further taking into account their record of human rights violations and the uncertainty regarding the status of the government declared by them, based on the information available at the time of drafting, it can be concluded that the Taliban do not qualify as an actor of protection who is able to provide effective, non-temporary and accessible protection.
No other actors are currently found to be in control of a significant part of the territory and able to provide protection within the meaning of Article 7 QD.
In case protection needs have been established in the home area, and in the absence of an actor who can provide protection in the meaning of Article 7 QD, the examination may continue with consideration of the applicability of IPA, if applicable in accordance with national legislation and practice.