GUIDANCE NOTE
Last update: April 2022
Article 7 QD stipulates that protection can only be provided by:
provided they are willing and able to offer protection, which must be:
effective and of a non-temporary nature.
Such protection is generally provided when the actors mentioned 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.
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. Policymaking and its application were considered to be influenced by local Taliban leaders’ personalities, preferences, and relationships. 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.
After the takeover of the capital Kabul, the Taliban announced the reestablishment of the Islamic Emirate of Afghanistan (IEA), which was in power in Afghanistan between 1996 and 2001. In October 2021, they reportedly controlled the entire territory of Afghanistan and provided service to the people.
The Taliban did not announce in detail how they intend to govern Afghanistan, nor which type of political system they envisaged to adopt or on what constitutional basis the government would function. In general, they referred to Sharia as the legal but also the political system to be imposed and emphasised the importance of Islam for their governance. Thus, most persons appointed to the interim government were of clerical background.
Appointments were made to central ministries and within the provincial administration, including the Ministry for Promotion of Virtue and Prevention of Vice. Under the previous Taliban rule, one of the main functions of the body was to enforce the Taliban’s interpretation of Sharia and there are reports that the new Ministry already has issued guidelines on topics related to ‘Islamic values’.
The Taliban have also started to build up security institutions. Sources reported a lack of control of the Taliban leadership over their fighters and observed Taliban fighters acting on their own initiative and subjecting civilians and journalists to violence, as well as conducting house-to-house searches and retaliation acts despite the general amnesty that was issued for all who served within the previous government.
As the Taliban administered shadow Sharia courts for years, it is expected that the coming justice system will be a continuation of the established shadow courts. The head of the former shadow court system, including its Supreme Court, Abdul Hakim Ishaqzai, was appointed Minister of Justice on 7 September 2021. In mid-October 2021 a new Supreme Court was reportedly established.
According to statements of Taliban officials, physical punishments including executions are considered as necessary parts of Islamic law, and some punishments used during the last Taliban rule would be revived. It was also stated that executions will be issued by court, but the punishments might not be carried out in public. However, according to an expert opinion, public display might not be necessary for all types of crimes but punishment for certain crimes must be carried out in public. In mid-October, the Taliban announced that punishments shall not be carried out in public unless the Supreme Court issues and orders for such actions.
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, 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.
Where no actor of protection meeting the requirements of Article 7 QD can be identified in the home area of the applicant, the assessment may proceed with examination of the availability of internal protection alternative.