COMMON ANALYSIS
Last update: January 2023
After the takeover of the capital Kabul, the Taliban announced the reestablishment of the Islamic Emirate of Afghanistan, which was in power in Afghanistan between 1996 and 2001. Nevertheless, Taliban governance remained unclear in the first few weeks after the takeover [Country focus, 1.1.1, p. 14].
While some uncertainties remain and enforcement is uneven across the country depending on local dynamics, the available information on their policies and actions since August 2021 already allows for a clearer picture on how they intend to govern Afghanistan [Targeting 2022, 1.1.4 a, pp. 24-25; 1.1.4 b, pp. 25-26].
The Taliban used the former government’s state structures but abolished some previous ministries, departments and commissions, such as those responsible for parliamentary affairs, elections, and overseeing human rights. Public servants of the previous administration were asked to return to work in August 2021, but many had already been evacuated or did not resume work due to non-payment of salaries. Afghan public services depended heavily on foreign aid before the takeover and, to some extent foreign aid continued to fund salaries within parts of the public sector [Targeting 2022, 1.1.4 c, pp. 26-27].
The Taliban have also started to build up security institutions. In September 2021, it was announced that the Taliban were working to form a regular army of 300 000 to 350 000 personnel on voluntary basis for both ministries of defence and interior. An intelligence service, the GDI, was also established. UNAMA recorded different forms of torture and ill-treatment by the Taliban GDI against detainees [Targeting 2022, 1.1.4 c, pp. 26-27; 1.1.4 f, pp. 32-34; 13.1.1, p. 189].
The Taliban indicated also that they were planning to re-establish a police force and they appointed police chiefs in the provinces. However, Taliban’s post-takeover efforts at policing the country have been described as ‘ad hoc at best’. Local Taliban units were compelled to take up new roles at checkpoints across Afghanistan and rural former insurgency members were faced with the task of governing and securing large ‘unfamiliar urban centres’ [Security 2022, 1.2.2, pp. 28-29]. The Taliban reportedly trained new police officers. Persons serving in the de facto security institutions initially lacked uniforms, which made them difficult for the public to distinguish from persons with criminal intentions. As of June 2022, the new de facto police force was said to have retained ‘some’ former personnel ‘but had largely inducted Taliban fighters’ [Targeting 2022, 1.1.4 e, p. 28; 2.5, p. 69].
The Taliban gradually sought to ‘resume the functioning of a countrywide justice system and courts under Islamic law’. Taliban appointments were made to the Taliban Ministry of Justice, the Taliban Supreme Court, their primary and appeal courts, and the Taliban Attorney General’s Office. Provincial de facto judges were also appointed to all provinces as well as judicial workers across de facto provincial and district courts. The appointed de facto judges were mainly religious scholars and were reportedly ‘empowered to lead their own investigations, without awaiting casefiles from Prosecution offices’ and worked with little transparency [Targeting 2022, 1.1.4 d, pp. 27-28].
Under Taliban rule Afghanistan’s justice system lacked an official constitution and official laws. No official judicial system was announced, and de facto courts reportedly applied pre-existing laws, sharia, and new Taliban directives. De facto judges and police officers claimed that the basis of their judgements and actions was the sharia. The administration of justice in the provinces was described as ‘decentralised’ and often done in consultation with religious scholars, elders and local communities. Structural, resource, and capacity constrains within the justice system, caused delays in de facto court proceedings, and increased detention numbers [Targeting 2022, 1.1.4 d, p. 28].
While in February 2022 it was reported that suspects were increasingly brought to de facto courts, at the same time another source had noted that that people arrested for alleged crimes were imprisoned without any investigation or judgement. Even in cases of relatively serious crimes, there were no investigations because the de facto police lacked resources and competence. The source further stated that people appointed to leading positions within the de facto police and de facto prosecuting authorities did not have knowledge about investigative methods [Targeting 2022, 1.1.4 e, p. 30]
According to UNAMA, a Taliban military court was established to have jurisdiction over Taliban security personnel, and members of the Taliban ministries of defence and interior, and the GDI. There were, however, reports of civilians being tried in this court [Targeting 2022, 1.1.4 d, p. 28].
The Taliban also decided to re-establish Ulema councils in all provinces. According to Ariana News, these Taliban councils were composed by religious scholars and elders with the mandate to oversee the functioning of the local government, advise on good governance, and handle legal disputes [Targeting 2022, 1.1.4 c, p. 26].
In January and February 2022, the Taliban issued guidance that detainees should be treated in accordance with sharia and stated that death penalties must be signed by the Taliban supreme leader. Capital and corporal punishment are regarded as relevant punishments for certain crimes under the sharia according to Taliban officials. There were reports on Taliban fighters subjecting civilians to violent treatment, inter alia whipping alleged thieves. It was also reported that the Taliban incarcerated people with minor ‘suspicion of illegal activity’ [Targeting 2022, 1.1.4 f, pp. 32-33; Security 2022, 1.2, p. 25; Country Focus 2022, 1.5.1, p. 30].
The Taliban had issued a directive on the use of force by Taliban security officials to take precautions in their interactions with the civilian population. UNAMA, however, continued to receive reports, after these instructions were issued, of civilian deaths and injuries following excessive use of force by the de facto security institutions. In the reporting period 15 August 2021 to 15 June 2022, UNAMA recorded at least 118 instances of excessive use of force by the de facto authorities. Sources reported on a lack of control from the Taliban leadership over their fighters and observed that Taliban fighters acted on their own initiative, 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 former government. It remained unclear whether such acts were sanctioned by the leadership or were caused by a lack of discipline or control in the chain of command. There was reportedly room for Taliban fighters to act on their own initiative as they did not seem to face punishment or any consequences [Country Focus 2022, 1.3, p. 25; Targeting 2022, 1.1.4 e, p. 32; 13.1].
The Taliban also re-established the MPVPV which has increased the enforcement of a wide range of directives related to extramarital relationships, dress code, attendance at prayers and music. As of 15 June 2022, UNAMA had recorded at least 30 instances of ‘cruel, inhuman and degrading treatment and punishments’ including public flogging, beatings and verbal abuse of persons failing to comply with issued rules and directives since the takeover [Targeting 2022, 1.3.1, pp. 41-42].
Moreover, the new Taliban governance appears to be non-inclusive and discriminatory for the majority of the Afghan society. Human rights violations have been documented, for example, against 3.1. Members of the security institutions of the former government or 3.3. Persons affiliated with foreign forces, persons from Afghan civil society perceived as critical of the de facto government (see 3.7. Human rights defenders, activists and others perceived as critical of the Taliban), and 3.12. Individuals perceived to have transgressed moral and/or societal norms. Several regulations and instructions have also been issued by the Taliban since 15 August 2021 impacting women’s and girls’ rights and freedoms. It has also been reported that the Taliban have engaged in discrimination against members of ethnic and religious minority groups, including Tajiks, Salafis and Hazaras.
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 discriminatory measures, 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.