The Collapse Of The Legal System In Afghanistan

In January 2023, United Nations reported on the dire situation of lawyers, judges, prosecutors and other actors involved with the legal system in Afghanistan, over a year after the Taliban takeover of Afghanistan in August 2021. Reportedly, they face grave risks to their safety and other challenges associated with the non-independent legal system in the country. Marking the International Day of the Endangered Lawyer, on January 24, 2023, the Special Rapporteur on the situation of human rights in Afghanistan and the Special Rapporteur on the independence of judges and lawyers raised their concerns “about the human rights abuses resulting from the dismantling of the independent legal system, and its replacement with a de facto system that flagrantly violates international standards.”

The Special Rapporteurs identified several issues that require attention and response. Among others, as identified by the Special Rapporteurs, “the Taliban have attempted to effectively ban all women—including women judges, prosecutors, and lawyers—from participating in the legal system. Among those removed were more than 250 women judges—over 10% of the bench before the Taliban takeover—as well as many hundreds of women lawyers and prosecutors.” Because of the risks faced, many women judges have fled the country or gone into hiding. Those who stayed, are facing serious challenges that go far beyond the issue of women’s engagement in employment.

Women lawyers have been unable to seek renewal of their licenses and therefore cannot practice law in Afghanistan any more. As the Special Rapporteur indicated, “numerous women lawyers are experiencing serious mental health problems in response to these measures. Not only are women lawyers in danger and their livelihoods upended, but the valuable services they provided—especially for other women—have been largely wiped out.”

As the Taliban took over the country, the Taliban fired all prosecutors. Only some of them have been reinstated ever since, although with severe limitations to their work and unable to play their crucial role in the administration of justice. Furthermore, the Special Rapporteurs reported that “more than a dozen prosecutors reportedly have been killed by unknown individuals in Kabul and other provinces, though this is likely an undercount. Some prosecutors were found during door-to-door manhunts carried out in the months following the fall of Kabul.”

Apart from the specific targeting of legal professionals, the whole legal system in Afghanistan is collapsing. “There are no standardized procedures or substantive statutes in criminal or civil matters that police, judges, or lawyers can follow. (…) Some specialized courts, including those devoted to handling sexual and gender-based violence, have been dissolved. (…) Laws and rules concerning the legal procedure, judicial appointment, and procedures for fair trials, which were implemented by the previous government, were suspended. (…) Judicial independence has been abolished, as religious scholars have replaced judges. Key de facto judicial positions have been filled primarily by Taliban members with basic religious education, rather than legal experts.”

The Special Rapporteurs called upon the international community to provide assistance to legal professionals, particularly women in the profession. As they stressed, “international actors should provide protection and safe passage to lawyers, judges, prosecutors, and other actors involved with the legal system, especially women, who are at risk of reprisal and attacks by the Taliban and others.” Furthermore, they called upon the de facto authorities to “reverse these abusive practices that exclude women from the legal system, to protect the lives of those who worked and continue to work for the administration of justice, and take the necessary steps to ensure the right to a fair trial for all Afghans.” The damage inflicted by the Taliban on the legal system in Afghanistan is not irreversible, however, action must be taken now.