The Endless War Against Human Rights in Afghanistan: Human Rights Defenders’ Joint Statement of Solidarity with the People of Afghanistan

Today, the 31st of August 2021, marks the official deadline for withdrawal of United States troops from Afghanistan after twenty years of military presence initially motivated by the 9/11 attacks of Al Qaeda and Osama Bin Laden.  Many have written (including Henry Kissinger) about the failures of American foreign policy and its efforts at nation-building in two decades. Many more have written about the “grand strategy of resolute restraint” and the geopolitical ‘great game’ implications of the United States withdrawal, and as we write, even more are engrossed with the ongoing cycle of unilateral and now retaliatory and seemingly preemptive uses of force by the United States under the Biden Administration (and whether this falls under the original 2001 Congressional Authorization for Use of Military Force) against the recent ISIS-K bombing at Kabul airport and ongoing drone attacks alleged “credible threats”.  The United Nations Security Council has called for ISIS-K bombers and those responsible to be brought to justice, but it is silent on the ongoing cycle of uses of force now taking place on US President Biden’s orders.  Out of all these, it is the United Nations Secretary-General Antonio Guteres who is asking the Security Council to “stand as one”, ensure respect for human rights in Afghanistan, and humanitarian protection of all civilians in the Taliban’s takeover of the Afghan government.  As of this writing, it is reported that the United States and 97 other countries will continue to take in people fleeing Afghanistan beyond August 31, but without stating the consequences should the Taliban government refuse to permit the refugee exodus or worse, refuse to ensure continuing respect for, and protection of, human rights for all individuals in Afghanistan.  Silence on the primacy and urgency of ensuring joint and separate action towards human rights protection and implementation in these times is deafening.

Through this post, therefore, we introduce a petition written and originated by various Afghan human rights defenders, seeking explicit international action from the United Nations, the UN Office of the High Commissioner for Human Rights, as well as regional organizations such as the European Union, the Organization of the American States, and the African Union, to:

“Address the root causes of the escalating conflict and violence in Afghanistan in order to find sustainable solutions that are in the best interests of Afghan citizens.

Call on all parties involved in the current conflict to search for a solution through peaceful dialogue in order to ensure the rule of law and the protection of human rights in Afghanistan.

Ensure that all countries immediately expand and expedite refugee protection measures for Afghans fleeing violence and persecution.

Establish a special humanitarian program for Afghan civilians at this time of great need.

Arrange inclusive and direct evacuation flights for Afghan human rights defenders and women activists, who are all under threat and in great need of easing emergency relocation for themselves and their families.

Remove any requirement by states receiving HRDs and women activists that applicants and their eligible family members must relocate to a third country. This is particularly so for Afghan women activists, for whom visas are difficult to come by in the best of times. With the twin disasters of COVID-19 and war now raging across Afghanistan, most countries have ceased offering visas and have closed their borders, making it impossible for people to reach a safe place. Thus, it is with urgent need and emphasizes to pressure the neighboring countries and the international community under the guidance of the international human rights law for opening their borders to the people of Afghanistan.

Establish a high-level interagency refugee coordinator to manage refugee processing and relocation across countries offering help and to greatly increase processing capacity. The current lack of coordination and processing capacity leads to much confusion on what the ever-changing international communities’ policies mean in practice for Afghan nationals. Those Afghans who make it out of the country are often in severe distress and this is increased when, upon arrival at their first exit point, they face disorganization and uncertainty as to process and procedure. All actors need to collectively mobilize and coordinate to ensure that Afghans can relocate swiftly and with dignity.”

We argue that States’ own extraterritorial obligations to respect and protect civil and political rights under the International Covenant on Civil and Political Rights (ICCPR) in “areas subject to their jurisdiction”, as well as to respect, protect, and fulfil economic, social, and cultural rights under the International Covenant on Economic, Social, and Cultural Rights (ICESCR) “in territories over which a State party has sovereignty and to those over which that State exercises territorial jurisdiction”, should duly inform State action at the international level with respect to the long-term circumstances faced by the Afghan population.  We further invite reflection on how States, as well as the United Nations, understand and implement their duties to ensure promotion of human rights, and whether that includes one’s own respect for human rights as Sir Hersch Lauterpacht argued over 70 years ago.  The continuing disconnect between international law and human rights, in our view, is what breeds the endless war against human rights in Afghanistan and other societies mired in internationalized conflicts.

Extraterritorial Human Rights Obligations in Afghanistan’s Endless War

The endless war in Afghanistan is ultimately one directed against the protection and recognition of the human rights, human dignity, and fundamental freedoms of Afghan civilians, caught in the crossfire between the global counter-terrorism actions, the United States’ national security considerations, and an international system seemingly in paralysis in the face of competing demands, and in continuing to tolerate the problematic rejection of the extraterritoriality of human rights obligations. Recalling the International Court of Justice’s 2004 Wall Advisory Opinion, it is doctrinal that human rights treaties do apply to persons who are outside a State’s territory but are subject to that State’s jurisdiction (as in the case of the International Covenant on Civil and Political Rights), or over which a State exercises territorial jurisdiction (as in the case of the International Covenant on Economic, Social Cultural Rights):

“108. The scope of application of the International Covenant on Civil and Political Rights is defined by Article 2, paragraph 1, thereof, which provides :

“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” This provision can be interpreted as covering only individuals who are both present within in State’s territory and subject to that State’s jurisdiction. It can also be construed as covering both individuals present within a State’s territory and those outside that territory but subject to that State’s jurisdiction…

109. The Court would observe that, while the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory. Considering the object and purpose of the International Covenant on Civil and Political Rights, it would seem natural that, even when such is the case, States parties to the Covenant should be bound to comply with its provisions. The constant practice of the Human Rights Committee is consistent with this. Thus, the Committee has Sound the Covenant applicable where the State exercises its jurisdiction on foreign territory. It has ruled on the legality of acts by Uruguay in cases of arrests carried out by Uruguayan agents in Brazil or Argentina. It decided to the same effect in the case of the confiscation of a passport by a Uruguayan consulate in Germany….

111. In conclusion, the Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.

112. The International Covenant on Economic, Social and Cultural Rights contains no provision on its scope of application. This may be explicable by the fact that this Covenant guarantees rights which are essentially territorial. However, it is not to be excluded that it applies both to territories over which a State party has sovereignty and to those over which that State exercises territorial jurisdiction. Thus Article 14 makes provision for transitional measures in the case of any State which “at the time of becoming a Party, has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge”. (Emphasis added.)

Afghanistan’s Representative to the United Nations, Ghulam Isaczai, has asked the Security Council and the United Nations to “use every means at their disposal to call for an immediate cessation of violence and respect for human rights and international humanitarian law.  They should call on the Taliban to fully respect their general amnesty offer, cease targeted killings and revenge attacks, and abide by international humanitarian law.  They should urge that no public institutions, including museums and media outlets, be demolished, and they should emphasize that anyone who violates the human rights of Afghan citizens and international humanitarian law will be held accountable. A humanitarian corridor must be established urgently for the evacuation of those at risk of Taliban retribution and attacks, Neighbouring countries must open their borders and facilitate the delivery of humanitarian assistance as well as the exit of Afghans who are trying to escape.  In addition, the Council and the Secretary-General should call for the establishment of an inclusive and representative transitional Government that includes all ethnic groups and women’s representatives, leading to a dignified and lasting solution to the conflict, while preserving the gains made over the last 20 years, especially for women and girls.”  These, in our view, are minimum actions that are consistent with the extraterritoriality of human rights obligations under the ICCPR and the ICESCR, the United Nations’ key purposes under Article 1(3) in relation to Article 2(2), as well as Articles 56 in relation to Article 55(c) of the Charter of the United Nations.

The Duty to Promote Human Rights Includes One’s Duty to Respect 

Afghanistan is a painful example of the truth of Sir Hersch Lauterpacht’s warning, at the dawn of the UN Charter system, of permitting any state-driven disconnect between international law and human rights.  It is deeply concerning that at this point of the United States’ withdrawal, Taliban assurances of ‘inclusivity‘ are taken by international political leaders as somehow an acceptable proxy for the continuing duty of all governments and peoples to abide by international rule of law, especially international human rights law.  Shrouding the narrative of the endless war in Afghanistan mainly from the perspective of US foreign policy prerogatives to protect their own nationals during the evacuation process – while remaining silent on the actual plight of Afghan women, children, human rights defenders, and the multitude of vulnerable persons within the population – obscures the fundamental international legal obligations of Members of the United Nations and the United Nations as a whole in regard to promoting human rights in a manner that includes respect for those same human rights.  Sir Hersch Lauterpacht was justifiably uncompromising on this point:

“Any construction of the Charter according to which Members of the United Nations are, in law, entitled to disregard – and to violate – human rights and fundamental freedoms is destructive of both the legal and the moral authority of the Charter as a whole.  It runs counter to a cardinal principle of construction according to which treaties must be interpreted in good faith….the intention of the parties must remain the governing consideration.  But that intention must, in turn, be interpreted in accordance with the requirements of good faith and of decency.  It would be contrary to these requirements and to the principle of effectiveness if repeated and solemn provisions of the Charter in the matter of human rights and fundamental freedoms, coupled with the clear legal obligation to promote respect for them by joint and separate action, were interpreted as devoid of the obligation to respect them…” [International Law and Human Rights, 1950, p. 150.]

There is a well-justified fear, borne out of past experiences in the international system with respect to long-standing conflicts and their corresponding human rights atrocities and humanitarian crises in Syria, Yemen, Sudan, among many other conflict zones, that the endless war against human rights in Afghanistan will ultimately be relegated to the vagaries of the international political process, shorn of the legality of human rights and the urgency of action at the international level to ensure the international rule of law based on human rights.  That is a very realistic probability, given the United States’ own reticence at this juncture to commit to human rights protection for Afghanistan as an area that has been arguably subject to their jurisdiction for two decades, and which, until August 31, 2021, was an area over which it also arguably exercised territorial jurisdiction.  The petition of Afghanistan’s human rights defenders is cognizant of the realpolitik under which they have lived through generations, and is a principled starting point to call for concrete actions from an international system that, under the Charter of the United Nations, is supposed to maintain international peace and security, as well as to simultaneously achieve “international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.” Most significantly, this petition invites reflection, as well as commitment to action, on our own roles, as members of the invisible college of international lawyers – whether in academia, practice, as legal advisers to States and international organizations, as counsels or human rights defenders in our localities – in helping to realize that envisaged international cooperation towards promoting, respecting, and defending human rights for all.