By Dr Roshina Rehman*
While there is ongoing work on getting people, deemed most at risk out of Afghanistan, creating humanitarian corridors for those to escape, the reality is that many will be left in Afghanistan. We need a parallel focus on those that remain.
Having written and researched on the Taliban 1994-2001, the actions of the ‘old’ Taliban or Omar’s Taliban (after the Movement’s founder Mullah Omar) are used as the comparator to measure against the latest iteration of the Taliban (henceforth the ‘2021 Taliban’). In this way distinction or parallels can be drawn which will in turn lead to some understanding and predictability around how the 2021 Taliban will impact human rights and how the international community can prevent such abuses and protect against violations before it becomes a response situation. The post will look at mechanisms which the original Taliban employed to commit the most egregious human rights violations. It will posit basic questions that should be asked and answered by the 2021 Taliban to aid in understanding the most effective approach to engage with the 2021 Taliban and possible leverage for compliance with international humanitarian law and international human rights law.
It is crucial to understand which interpretation of Islam the Taliban subscribes to. If the Taliban interprets a normative conflict between international humanitarian law, international human rights law, (or even Pashtunwali) and Shari’a, then the following questions arise: Who has the competence and authority within the Taliban to resolve such conflicts? Which Islamic juristic tools will the Taliban employ to resolve normative conflicts? Consensus (Ijma)? If it is consensus, among who? Is juristic reasoning permitted (Ijtihād)? If so, by a mujtahid (i.e. an individual who is qualified to exercise ijtihad in the evaluation of Islamic law) only?
Omar’s Taliban preferenced the use of hudud punishments, i.e. severe penalties for the capital crimes in Islamic law which include apostasy, sedition, adultery, and fornication. At the court’s discretion, the penalties may be death by the sword, lapidation (stoning, usually to death), or lashing. Will the 2021 Taliban permit the draconian hudud punishments? What will the 2021 Taliban do with the formal justice system and laws? What is the status of international human rights treaties Afghanistan is already party to? Will Islamic concepts like the Dar Al-'Ahd (Abode of Covenant), Dar Al-Sulh (Abode of Truce) carry any weight to enforce international treaties? What about the the Promotion of Virtue and Prevention of Vice Unit that the old Taliban implemented in Afghanistan. This Unit institutionalized the operation of the old Taliban’s interpretation of Shari’a impacting most aspects of life. Will the 2021 Taliban recreate this unit? What rights of women do the 2021 Taliban believe are limited or do not exist under their interpretation of Islam? Will they implement laws like the Mahram Decree? ( Shari’a classifies cross-sex relationships in two categories: mahram (lawful) and na-mahram (unlawful). The Mahram Decree was one of a series of decrees given by Omar’s Taliban in 1997 that restricted women’s rights and institutionalized gender segregation )
Afghan Taliban 1994-2001
The Taliban stepped into the power vacuum and culture of war after the withdrawal of the Soviets. ‘[Their] grip on power in Afghanistan was derived from a society with a starkly negative view of the outside world, due to the cycle of intervention and abandonment by the Soviets, the United States and other foreign actors.[ Ali Ahmad, Editorial, From Kyoto to Jallozai, News (Pakistan, 2 April 2001) 7]
It is difficult to isolate the Taliban’s actual constitution. It has been cited as an umbrella organization for a loose network of dispersed constituent groups varying in size and levels of coordination. Some claim these groups have achieved ‘significant unity of purpose and even some unity of effort;’ some cite these groups as alliances only, a franchise; while others contend the Taliban are mere puppets manipulated by external actors. There are arguments that the label ‘Taliban’ was lazily imposed on any person who offered armed opposition to the Afghan Government, others compared the Movement to a ‘caravan to which different people attached themselves for various reasons.’[Bernt Glatzer, ‘War and Boundaries in Afghanistan: Significance and Relativity of Local and Social Boundaries,’ (2001) 41(3) Die Welt des Islams 379] Scholars and commentators disagree over whether the Taliban be treated as a primarily political movement with political aims, and not as a tribal one, or if it was more a military organization than a political one. [For example see: Thomas Ruttig, ‘How Tribal Are the Taliban? Afghanistan’s Largest Insurgent Movement between Tribal Roots and Islamist Ideology,’ (2010) Afghanistan Analysts Network; Colin Davies, Problem of the North West Frontier (Curzon Press 1975); Antonio Giustozzi, Koran, Kalashnikov and Laptop: The Neo-Taliban Insurgency in Afghanistan (Columbia University Press, 2008); Anthony Davis, ‘How the Taliban Became a Military Force’ in William Maley, Fundamentalism Reborn: Afghanistan and the Taliban (NY University Press 2001); Larry Goodson, Afghanistan’s Endless War: State Failure, Regional Politics, and the Rise of the Taliban (University of Washington Press 2001)]
While there are many incarnations of the Afghan Taliban, there are now three distinct parts to the Taliban insurgency: (1) the formative years of the Movement led by mujahidin and madrassa students up until late 2001; (2) the intermittent period between 2001-2021; and (3) the ‘new’ or ‘old’ Taliban.
The ‘old’ Taliban, a quasi-national liberation movement with tribal undertones which needs to be distinguished from the 2001-2021 Taliban, forms part of a transnational ‘citizens of jihad’ with religious overtones possessing distinct ideologies and susceptible to different influences. This latest iteration of the Taliban cannot yet be accurately characterized.
There is no consensus about the birth of the Taliban or the hands that crafted it.[ Peter Marsden, The Taliban: War and Religion in Afghanistan (OUP 2002) 61; Mujib Mashal, ‘The Myth of Mullah Omar’ Al Jazeera (Doha, 06 June 2012); Ahmed Rashid, Taliban, Oil and the New Great Game in Central Asia (IB.Tauris 2000) 25] There is ‘an entire factory’ of myths and stories to explain the Taliban’s rise to prominence in Kandahar, with some describing their rise to government as amateur if not accidental. There is however a consistent theme that enjoins their emergence as a moral project, marrying extreme piety with a humanitarian impulse to answer the desperate pleas of their countrymen. This narrative of the pious, courageous and disciplined Taliban is aligned with the populations’ need for salvation. It was in the context of a disparate state with a dispirited population that the legend of the Taliban emerged. The group and its agenda were localized from inception and attracted little comment from the international community. They were a purely Afghan movement with no foreign policy. The idea of an ordered Afghanistan was appealing to large pockets of the Afghan communities attracting new recruits from like-minded people.
The Afghan jihad against the Soviets demonstrated the unifying power of channelling nationalist sentiments within an Islamic framework. Indeed, Islamic and nationalist values were twinned by the Taliban, who spoke of their ‘lofty Islamic and nationalist aims’. [‘Remarks of Esteemed Mullah Brader Akhund Made to Media about Obama’s New Strategy’, 30 October 2009 in ‘Taliban leader rejects U.S. attempts to lure away fighters with money’ http://www.uruknet.info/?new=59561] Yet, the Taliban did not have a sophisticated view of what a genuinely Islamic system would look like. Further, speaking in the name of Islam neither brought unity of ranks nor unconditional popular support.[ Ashraf Ghani, ‘Afghanistan: Islam and Counterrevolutionary Movements’, in John Esposito (ed) Islam in Asia: Religion, Politics and Society (Oxford University Press 1987)] The Taliban made clear from the start that it would be uncompromising. One of their first public moves in 1996 was pulling president Najibullah from the UN Compound where he was residing under house arrest. They tortured and hanged him, and mutilated his body in the streets of Kabul.
After the capture of the capital, the Taliban issued no manifesto. There was no administration, there were no public services and there was no economic plan. Once in the capital, ‘the Taliban did not so much take control of Afghan institutions as completely eviscerate them, erecting in their stead only three functions: morality, commerce and war’.[ Gilles Kepel, Jihad: The Trail of Political Islam (IB.Tauris 2002), 229]
The Taliban in 2021
If the leadership composition is considered reflective of the Taliban, the DNA of the original Taliban, quite literally remains. The Taliban’s Supreme Leader, Haibatullah Akhundzada (along with his deputy Baradar) are both relics of the mujahideen and early recruits of Omar’s Taliban. Omar’s son Yaqoob takes on a deputy leadership role, along with Sirajuddin Haqqani, son of Jalaluddin and founder of the ‘Haqqani Network’ (aligned with Omar). It is not only the Taliban that has legacy leaders, the Northern Alliance, headed by Ahmad Shah Massoud (killed by the Taliban in 2001) is now led by his son Ahmad Massoud and trying to gather support for its renamed Panjshir resistance, also known as the National Resistance Front.
Early narratives from the Taliban have stated that the rights of women, and indeed human rights in general in Afghanistan will be respected “within the framework of Islamic law”. More accurately, a statement from the Taliban spokesman would have explained that human rights will be respected within the Taliban’s interpretation of Islamic law. If the current iteration of the Taliban subscribes to the same interpretation of Islam that the original movement practiced, these two statements are irreconcilable.
Before looking at the impact on human rights the Taliban will have (irrespective of whether they are recognized as the Government or not), there need to be both internal and external clarifications: the Taliban’s internal clarification of how/if they distinguish from the original Taliban; and a parallel external verification through a UN international investigative mechanism to establish the facts on the ground.
Which interpretation of Islam?
The aspirations of contemporary international law have not translated into a language intelligible by certain armed non-state groups (ANSGs) who reassert their interpretation of justice through Revelation.
Many violent ANSGs generate an Islamic theory ‘to legitimize revolt in terms of mainstream Sunni thought’ claiming such revolt is based on a sophisticated tradition of medieval Islamic jurisprudence. While the ideological understandings of their narrative does not represent the global Muslim population, the basis of this theory warrants examination, in particular whether it is in practice congruent with Islam and whether this interpretation of puritanical Islam is compatible with conventional international humanitarian law and international human rights law.
Modern Islamic discourse sees selective invocation of a particular juristic text to promote their individual conclusion, ‘without ever articulating a principle for including or excluding certain jurists or texts.’[Mairaj Syed, Islamic Law and The Apologetics of Jihad: A Review, Is Jihad A Just War? (2002) 2 UCLA J. Islamic & Near Eastern Law 155, 157]
Militant groups, regardless of ideological or religious underpinnings, are not monoliths. A historical-legal sketching of Islam exposes a harmonizing base from both humanitarian and humanitarian legal perspectives, which has been warped as the law evolved and regional custom shaped the application of Shari’a. Shari’a principles are more than law encompassing the total way of life that includes faith (imam) and practices (amal), personal behaviour, legal and social transaction.
Islam cannot be equated with the actions of particular radical Islamic groups, nor can radical Islam be considered as having a coherent doctrine among and between various groups. The haste, bordering on reflex, with which puritanical Islamic movements are relegated to ‘terrorist’ status reflects a complete failure to understand the socio-cultural conditions that generate such movements and their concomitant affiliations; the structure and dynamics of these groups; ethno-regional diversities; and these movements’ relationship to violence. ‘Armed groups will not disappear if we ignore them…’[ Marco Sassoli, ‘Engaging Armed Non-State Actors with International Humanitarian Law’ (2008) 6 Hum. Sec. Bull 15, 16] They have not disappeared when we have attacked them. Engagement with these groups is key.
The manipulation of religious language in pursuit of military strategy is not novel, nor constrained to Islam. Twenty-first century Islamic extremists espouse the virtues of post-classical Islamic jurisprudence to justify their conduct. Many self-proclaimed revolutionary Islamic heads have issued their own peculiar constitution of jihad, more a grouping of Qurʾanic quotations and derivative arguments dressed in Qurʾanic verse, as opposed to a coherent theological doctrine.
Motivations for insurgencies vary. Certain Islamic extremists seek state privileges such as sovereignty, territorial control, status and prestige, while others emphatically reject the sovereign nation-state and its international legal system.
The original Taliban’s theocracy was a particularly unusual and largely unrepresentative form of Islam. ‘Notwithstanding the sui generis nature of the Taliban’s edicts and the reality that they mostly emerged from a culture of war, the fact remains that they also drew from Islam.’[JG Elliott, The Frontier 1839-1947: The Story Of The North-West Frontier Of India (Cassell 1968) 396]
The principle formative influence of Taliban radicalism has been the Deobandi School, named after Deoband, a town near Delhi where a religious academy was founded in 1867. It comprises religious figures of a traditional and conservative inclination, ‘whose manifestation in the sphere of politics is the Jamiat-i-Ulama-i-Islam, the largest Deobandi-based party, established in 1945. The thrust of the Movement was to resist British imperialism by training cadres of conservative clerics who would adhere to what they viewed as puritanical Islam.’[Mariam Abou-Zahab & Olivier Roy, Islamic Networks: The Afghan-Pakistan Connection (Columbia University Press 2004), 20] The Taliban recruited mainly among Deobandi madrassas, some local, others through the Durand Line.[To prevent tribal feuds from inviting Russian influence colonial officials devised a strategy to bring the Pashtun belt under British control, a literal divide and conquer strategy. They split it in half by surveying the Durand line, a 1200 mile boundary that continues to demarcate Afghanistan and Pakistan.]
These madrassas were run by Jamiat-i-Ulama-i-Islam, headed by Maulana Fazlur Rahman. Its students were particularly poor and generally war orphans. The Deoband School preached a form of Sunni conservative orthodoxy, and madrassas under its influence provided the bulk of the Afghan ulama [‘ilm (pl. ‘ulum) Religious knowledge, Those possessing ‘ilm are known as ulama.] While mujahidin professed to be followers of the Hanafi school of Islam, almost all declared allegiance to the teachings of Deobandi Islam.
In the tradition of reformist Sunni movements in the region, the Taliban sought to purify society from non-Islamic influences. It appealed inconsistently to the authority of the 13th Century (CE) Ibn Taymiyya, and the 18th Century (CE) Muhammad ibn Abd al-Wahhab. It looked to the practice of the 19th century (CE) Syed Ahmed Barelvi (Ahmed Shaheed) and Ismail Shaheed, the leaders of ‘a rigid puritanical version of Islam [that] views the outside world and modernity with hostility.’[Fareed Zakaria, ‘The Allies Who Made Our Foes’ Newsweek (NY, 1 Oct 2001) 34] The majority of attacks by armed non-State groups against the West have been from Islamic groups espousing Wahhabism.
Surprisingly, Omar’s Taliban did leave the structure of the old government court system intact, creating a parallel court system to run out of Kandahar. They enumerated no new government codes, believing the Shari’a offered answers to all questions.
Taliban courts were particularly keen on reinvigorating hudud punishments, such as stoning adulterers and amputating the hands of thieves that had largely disappeared from Afghanistan generations earlier. Yet in spite of their clerical garb and professed interest in imposing a pure form of Islamic law, Taliban leaders were not so much ulama scholars as they were rural ‘tribal puritans’, men who focused more easily on what they wished to destroy than what they wished to build.
The Status of the Promotion of Virtue and Prevention of Vice Unit
The Taliban emphasised the individual dimension of faith as the basis for rebuilding the umma, the view that Muslims must first return to the true faith before it becomes possible to issue any call to jihad. For its realization, the Taliban established an Islamic state with rule by edict based on a salafi interpretation of Shari’a. These edicts controlled most aspects of life, from the clothes that a woman was to wear, to the length of a man’s beard, to appropriate family activities. The religious edicts were enforced by the Saudi inspired ‘Department for the Promotion of Virtue and the Elimination of Vice’ (Amr el-Maruf wa el- Munkar), the raison d’etre of the Taliban.
It was the most cohesive organization in the Taliban’s otherwise inchoate structure, institutionalising the operation of Shari’a. A cross between the church and the army, the Taliban recognized no private sphere beyond the purview of its authority.
Over 30,000 Taliban were tasked with enforcing the observance of religious service, dress codes, and enforcing bans on all forms of entertainment. Indeed, the long beards and turbans, which became the Taliban hallmark, had long been a part of Kandahari culture. The Taliban thus sought to universalise a specifically Pashtun custom and enforce its adoption across Afghanistan, a visible expression of piety but also as a symbol of the Taliban’s political monopoly. Men with beards shorter than the ‘Islamic’ standard were whipped, drinkers were flagellated with rubber hoses, the limbs of thieves amputated and murderers executed, all of which were deemed the only legitimate forms of public spectacle, as thousands of people were crowded into stadiums to watch. Public punishment was a cornerstone of the administration of draconian justice through Shari’a courts.
In terms of punishment, the Taliban approaches conflicts with the restorative approach used by the Pashtun tribal Elders who aimed to restore community harmony where social bonds had been ruptured by the actions of one or both parties. The Taliban focused on the enforcement of modes of behaviour which externally seemed to run parallel with solving Afghanistan’s problems. Although restricting civil liberties, the Afghan population wanted security and the Movements’ policy of moral purity resonated with the values of those under Taliban control. For the affected population, the Taliban represented discipline and order which they juxtaposed with the mujahidin lawlessness and brutality. This initial support turned into a benign tolerance as the regime progressed, the diminished public services became outweighed by enhanced security, or ‘peace in the graveyard.’
In his rhetoric, Mullah Omar often harked back to the days of early Islam for the model of society he wished to see installed in Afghanistan. His stock answer to every legal question was that the issue was adequately addressed by the Shari’a, without ever referencing the many issues that were still subject to long debate within the different legal schools of Islam. This insistence on imposing Shari’a without being clear on its details or sources was a hallmark of Taliban fiqh (Islamic jurisprudence).
Rights of Women within the framework of the Taliban’s interpretation of Islam
The Afghan Taliban have been a subject of journalistic and academic outpourings, reiterating misogynistic aspects of their ideology attached to their Salafi, Wahhabi or Deobandi postulations, depending on who was writing. This narrative has dominated the West since 9/11, however existed long before.[ Iftikhar Malik, Pashtun Identity and Geopolitics in Southwest Asia: Pakistan and Afghanistan Since 9/11 (Anthem Press 2016)]
Women in urban parts of Afghanistan would feel the full extent of the Taliban’s proscriptions. Overnight they were deprived of liberties such as education.[ Department of State, ‘International Religious Freedom Report – Afghanistan,’ Washington, DC, 2000; Rashid The Power of Militant Islam, 225; John Burns, ‘A Year of Harsh Islamic Rule Weighs Heavily for Afghans,’ New York Times (NY, 24 Sept 1997); United Nations, ‘Report of the Secretary- General on the Situation of Women and Girls in Afghanistan, Submitted in Accordance with the Sub-Commission Resolution 1998/17,’ ed. Commission on Human Rights, Sub-Commission on the Prevention of Discrimination and Protection of Minorities, July 15, 1999, paras 9-11.]
Failure to adhere to these new edicts would attract public punishment. The Mahram decree issued by the Taliban authority in July 1997 was the first among a series of decrees that restricted Afghan women's legal rights.[ Shari’a classifies cross-sex relationships within two categories, lawful, (mahram) and unlawful, (na-mahram). For a discussion of the shifting priorities given to human rights programming during the Taliban regime see Arne Strand, ‘Bombs and Butter: Compensation Issues in Protracted Conflicts and the Case of Afghanistan’ in George Ulrich and Louise Krabbe (eds.) Human Rights in Development Yearbook 2001 (Kluwer Law 2001) 124- 128; Karin Ask, ‘Legal Pluralism and Transitional Justice in Afghanistan: A Gender Perspective’ (2003) Hum. Rts. Dev. Y.B. 347, 353.]
The Taliban’s repressive gender policy has been credited, or at very least find roots in Pashtunwali, the traditional law of the Pashtun people. The Group’s severe attitudes toward the seclusion of women seemed closer aligned to rural Pashtun life than interpretations of religious law.[ Henry Bill, ‘Country Without a State- Does it Really Make a Difference for the Women?’ Afghanistan, A country without a State, Noelle-Karim (Vanguard 2002), 107; Jane Perlez, ‘Anger at US Said to Be at New High’ NY Times (NY 11 Sept 2002); Thomas Barfield, ‘Afghan Customary Law and Its Relationship to Formal Judicial Institutions’ (USIP, Washington 2003) ,35 ]
Under the Taliban, the rights of women in the national law codes were abolished in the name of bringing state law in conformity with their interpretation of Shari’a. Although the Taliban asserted that its draconian policies, that removed women from the workplace and required them to be veiled, were simple applications of religious law, Shari’a legal experts disagreed.
However, in the Afghan countryside the emphasis on enforcing Shari’a often increased women’s rights to inheritance and control over marriage that were denied to them under customary practices. Social restrictions that were so widely resented in the cities provoked little opposition in the countryside because they reflected commonly accepted rural values and lifestyles.
While the Taliban’s repression of women symbolizes the vulnerability of women, it also shows the impotence of their male relatives.
Dupree argues the situation is more complex.[ Louis Dupree, ‘Afghanistan in 1983: And Still No Solution.’ (1984) 24(2) Asian Survey 229] The dependence of the Taliban movement on young, madrassa educated combatants made the leaders concerned about how these young men would act in a cosmopolitan city and decided that rather than educate the men on how to behave, it was easier to exclude women from spheres of education and employment and imprison them behind the burqa and cast them to exist in the shadows of society.[ Anand Gopal, No Good Men Among the Living: America, the Taliban and the War Through Afghan Eyes’ (Henry Holt & Co 2014)]
There are a lot of narratives and counter-narratives around the 2021 Taliban. It is unclear if they are a reformulation of Omar’s Taliban merely dressed in 21st century rhetoric, communications and propaganda. Restated, the population of Afghanistan and the international community need to understand if the Taliban of 2021 is following the same interpretations of Islam, following the same ideas on women and justice that Omar’s Taliban initiated but with an evolved mouth piece, a more palatable narrative for the international community to digest. Answering these questions through actions, will aid in understanding the distinction and evolution of the Taliban and dictate what the international community must do to prevent human rights abuses and protect those remaining under Taliban rule. If the answer is in the affirmative, if there is no substantive distinction from Omar’s Taliban and the iteration of the Movement, the human rights violations and violations of international humanitarian law will be systemic, they will be egregious, they will not discriminate.
If it is found that the population of Afghanistan is suffering serious harm, as a result of insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.
*Mujahid = those engaged in Jihad
*Munafiq = hypocrite - Munafiq is a person who in public and in community shows that he is a Muslim but rejects Islam
* Roshina Rehman, PhD in law and human rights lawyer. The name used is a pseudonym, as the author wishes to remain anonymous due to professional reasons. The name of the author is, however, known to the Blog's editors.
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