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News analysis: Afghanistan: ‘Shocking’ situation raises grave concerns for safety of judges and legal profession

Ruth GreenWednesday 1 September 2021

The last US military aircraft departed from Kabul airport on 30 August, marking an agonising end to a dramatic two weeks that saw Taliban fighters effortlessly topple the Afghan government and President Ashraf Ghani forced to flee the country. As the Taliban returns to power 20 years after the regime was ousted by US forces, the rule of law and the safety of the legal profession is once again seriously under threat.

The speed of the Taliban takeover left armed forces, governments and the international community scrambling to evacuate civilians before the 31 August deadline imposed by Taliban leaders. Rescue efforts were severely hampered by security concerns. As thousands waited to be evacuated at Kabul airport on 26 August, a blast killed more than 170 people, including 13 US military personnel and other foreign nationals. Islamic State has since claimed responsibility for the attack.

‘It's shocking that we find ourselves in this situation,’ Lord Peter Goldsmith QC, who served as the UK's Attorney General from 2001–2007, told Global Insight. ‘It’s crazy that we weren't better prepared for this. We will have to look at where the responsibility lies, but the problem is that this is not about political posturing. This is about people's lives. For people who've done tremendous things that we and the IBA very rightly stand for – the rule of law, justice and a fair society – it’s shocking that some of them are being left in this situation.’

For people who've done tremendous things that we and the IBA very rightly stand for – the rule of law, justice and a fair society – it’s shocking that some of them are being left in this situation

Lord Peter Goldsmith QC
UK Attorney General, 2001-2007

The failure by global powers to prevent the humanitarian crisis in Afghanistan is unforgivable, agrees Anne Ramberg, Co-Chair of the IBA’s Human Rights Institute (IBAHRI) and former Secretary-General of the Swedish Bar Association. ‘The disgraceful and irresponsible departure of the US and its allies, including my own country, is a capitulation of moral duty,’ she says. ‘Grave concern is warranted. Women, girls, children, journalists, legal practitioners, judges and human rights activists are at risk. It is a devastating situation for everyone who shares a belief in democracy, the rule of law and protection of human rights.’

The plight of the judiciary was highlighted in a recent statement issued by the National Association of Women Judges (NAWJ), which warned that some 250 female Afghan judges were at a very real risk of being ‘targeted for assassination’ following the murder of two female Supreme Court judges in the country in January.

Goldsmith, a former IBA Council Member and IBAHRI Co-Chair and now a member of the House of Lords, is one of several leading voices that successfully campaigned for the UK government to include the judges under the UK’s Afghan Relocations and Assistance Policy (ARAP) scheme, which was established in April to assist current and former Afghan civilians employed by the UK government.

Many of the judges received training in the UK. Goldsmith says they deserve protection and safe evacuation because of the dangers they face simply for doing their jobs. ‘It's important to understand the special vulnerability and special risk that these women face,’ he says. ‘They're targeted, not just because they are women acting openly as judges, but the idea that they would be actually sitting in judgment over men is an outrage to the Taliban. What's more, these women were dealing with some of the most difficult cases – terrorism cases, drug cases, serious criminal cases – so they would have sentenced these Taliban members to imprisonment and so the likelihood of reprisals and revenge is extremely high.’

Goldsmith says it’s also a stark reminder that every single case matters: ‘Sometimes one can forget that when faced with a large geopolitical situation, but if we've succeeded in getting just one person to safety, it will have been worthwhile. Let's hope we've done a lot better than that.’

It’s unclear how many judges have been evacuated to the UK or other countries, but the threats against them in Afghanistan are undeniable. Rohullah Qarizada, the President of the Afghanistan Independent Bar Association (AIBA), told Global Insight that women did not even have ‘basic legal and human rights’ under the previous Taliban regime and there was no expectation this would change under the new leadership: ‘Things are unclear, but it seems that women will not be allowed to practise the law.’

This would be devastating for the legal profession in Afghanistan, says Phillip Tahmindjis, former Director of the IBA’s Human Rights Institute (IBAHRI), who was instrumental in helping set up the Afghanistan Independent Bar Association (AIBA) as the country’s first bar association in 2008.

Today, AIBA has more than 2,500 registered lawyers. Tahmindjis says the time taken to consult directly with local lawyers over a four-year period was crucial for the advancement of the legal profession in the country. ‘It meant we were one of the first organisations that went into Afghanistan to ask the Afghans what they thought they wanted, rather than telling them what we thought they needed,’ he says.

The result was a unique offering: AIBA is the only bar association in the world to have a quota for women on all executive committees and at least one vice-president must be a woman. There is also a compulsory annual requirement that each member must undertake at least three pro bono cases a year. These bylaws were concepts raised by Afghans themselves. This would have been progressive in any country, but particularly ‘in a traditionally misogynistic country like Afghanistan, this was a huge step forward,’ says Tahmindjis.

Tahmindjis calls on the international community not to give up on the country and hopes the spirit he witnessed in the Afghan legal community will prevail. ‘In my view, there is one guarantee that is ironclad: if we don't all keep on trying, then nothing will ever improve,’ he says. ‘Afghan lawyers generally are very supportive of human rights, very supportive of justice being made available and the rule of law being made available to everybody. Despite the fact that lawyers may now be suppressed, this Afghan spirit is still there and no Taliban or anybody else in my view is going to crush this. Even if the Bar falls apart at the seams, even if the Taliban bulldozes the building that they're in, that spirit will always remain. That is the lasting legacy that the IBA has helped to give Afghanistan, and which may, in the future, help them pull themselves out of the problems that they have.’

Image: John Smith C/Shutterstock.com

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