COMMON ANALYSIS
Last update: April 2022
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.
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. However, a study concluded, that policymaking and its application were 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 [Anti-Government Elements, 2.1. 2.5; Criminal law and customary justice, 1.8, Country Focus 2022, 1.3].
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 [
Country Focus 2022, 1.1.1].
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 [
Country Focus 2022, 1.1.3, 1.1.4].
As they had the complete state apparatus to manage after the takeover, as well as the need to provide basic public services, an initial approach seemed to be to incorporate elements of the existing civil service into the new administration [
Country Focus 2022, 1.2.1].
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’. Persons working for the previous administration were asked to return to work. However, many employees evacuated in August or did not resume their work despite the general amnesty [
Country Focus 2022, 1.2.1].
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. Taliban officials made public statements indicating to improve organization and marshal fighters and called on members related to defence, interior and intelligence agencies to move to military bases. It was also stated that a training programme was underway, that professionals will be deployed on all levels and called on former police personnel to return to work [
Country Focus 2022, 1.2.2].
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 previous 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, 1.5.1].
Under the previous government, Afghan jurisdiction was based on three parallel and overlapping systems or sources of law; formal statutory law, tribal customary law, and
Sharia law. In the Taliban’s transition from an insurgency to a government, Afghanistan’s justice system lacked an official constitution and official laws [
Country Focus 2022, 1.5].
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, which were identical to the judicial system of the former government, with both criminal and civil courts on district and provincial level, as well as a supreme court. 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 [
Country Focus 2022, 1.5].
Former shadow judges reportedly took positions within the justice system. It was also reported that the Taliban were looking to hire judges and prosecutors and that they had already appointed prosecutors in some areas. There were reports of judges, local leaders and other Taliban officials already actively working with public order, security and solving disputes. In international media, judges and police officers said that the basis of their judgments and actions was
Sharia law. According to experts, the application of
Sharia law opens up for variations, for example depending on individual interpretation and the influence of local customs and tribal structures [
Country Focus 2022, 1.5].
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. [
Country Focus 2022, 1.5.1].
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.
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.
