The evacuation of judges and the future of justice in Afghanistan
This blog examines the evacuation of judges from Afghanistan following the Taliban takeover in August 2021 and the impact for the future of justice in Afghanistan.
As winter is approaching Afghanistan and the World Food Program is warning that 23 million Afghans are at risk of starving, the international aid community is mobilising to avert a catastrophe. Immediate response is essential, but unless strategies now are prepared for longer-term and more sustainable approaches, humanitarian relief may become the long-term response by default, with all the problems this entails.
Since the Taliban came to power on 15 August, Western countries and the UN system have been unwilling to deal with the Taliban government in ways that may support or legitimise its rule unless it meets their demands for inclusive governments and respect for human rights, in particular the rights of women and girls. The position is undergirded by US and UN sanctions. Two exceptions issued by the US Treasury on 25 August and 2 September made transfer easier, but the Taliban government is still unable to access funds from the World Bank and the IMF and to recover Afghan reserves held abroad, mostly in US banks, valued at around 9 billion dollars.
Sanctions and restricted access to funds are key instruments in the Western policy of isolating and delegitimising the Taliban until they make concessions on issues of representative government and human rights. Yet the looming humanitarian catastrophe necessitates some form of engagement. The result is a system of humanitarian aid financed and managed by external actors – mainly the UN and Western bilateral donors.
While the overall scheme is approved by the Taliban government, the humanitarian aid program systematically and deliberately bypasses the Taliban state. International aid actors that previously worked with government agencies now transfer money directly to NGOs or other subcontractors that manage their programs in the country. In the health sector, for instance, the World Bank previously transferred funds to the Ministry of Public health (MoPH), which then transferred the money to NGOs that managed rural clinics. The day after the Taliban came to power, the World Bank stopped all its programs in Afghanistan but released some funds in the health sector to UNDP, which transfers it to the NGOs that manage rural clinics. The key point is that funds no longer flow through the MoPH or other state entities.
This emerging state-within-the state is largely a Western apparatus. A recent proposal by two influential US ex-officials makes the US imprint explicit by calling on the US government to seize the approximately 8 billion dollars of Afghan reserves held in US banks and transfer the funds to the World Food Program to pay for its aid program in Afghanistan. The WFP, it will be recalled, was set up at the behest of the US, is largely funded by the US and the chief administrator is an American.
The development of a UN/US-led humanitarian system within a formally Taliban ruled state raises some questions. For a start, denying the Taliban access to aid money – as well as the country’s substantial national reserves held abroad – encourages the Taliban to avoid responsibilities for providing basic services to its own people. It also fosters long-term dependency on relief. An internationally financed and managed humanitarian system soon develops vested interests and mechanisms to perpetuate itself. This is particularly the case when the political conflict that generated the need for humanitarian assistance in the first place seems intractable.
Aid programs that become so comprehensive and autonomous that international aid actors in practice take over the provision of basic social services for the local population, amount to “humanitarian governance”. The highly unequal power relationships that characterise such systems mean they are typically deficient in accountability and, often, transparency. The local population lacks effective mechanisms for holding the de facto authorities – the large and distant international organisations – accountable. Extreme inequalities in power also entail an element of ‘moral hazard’. External aid actors can choose to stop the programs without incurring direct negative consequences for their own populations – the costs in terms of human suffering fall on “the other”. From an ethical as well as political perspective, therefore, humanitarian governance has some problematic dimensions.
With about half of the population living below the official poverty line, the focus of aid to Afghanistan needs to shift from relief to poverty reduction as soon as possible. Humanitarian agencies can and do operate in the grey-zone between relief and development. The EU’s recent designation of its 1.2 billion euro for Afghanistan as a “humanitarian+” program is an invitation for aid agencies to move into health, education and even rural development. But it is also clear that sustainable programs in this area must in some measure involve agencies of the Afghan state.
A principal assumption underling the past two decades of Western involvement in Afghanistan is that an effective state is essential for development and conflict management in general, and poverty reduction in particular. The view found support in a rapidly expanding academic literature on strategies of statebuilding and informed aid policy. International financial institutions and major Western donors invested heavily and steadily in the development of administrative state capacity on both the central and the local level. Over time, several individual ministries made progress to meet donor standards of efficiency and effectiveness, including the MoPH, Ministry of Rural Rehabilitation and Development (MRRD), Ministry of Finance (MoF), and to some extent, Ministry of Education (MoE). Already at the London conference in 2010, donors agreed to aim within the next two years to channel 50% of all development aid through the government. While the aim was not met – many donors continued to transfer funds directly to their NGO sub-contractors, or UN agencies executed project directly in the country – the principle of creating state capacity by channeling funds through the state budget was generally accepted in the aid community.
It is a profound irony of history that the Western agenda now has embraced a strategy that effectively undermines the Afghan state. The lack of a state structure is no excuse. The Taliban has left the administrative structure inherited from that the previous government relatively intact. They have shifted out the political leadership at the top, but – as during the first Taliban Emirate in 1995-2001 – have not, or not yet, replaced the middle-management or the bulk of the civil service. The structure is nevertheless quite vulnerable. About 75% of the state budget had previously been financed by donors. When the Taliban seized power, that money flow stopped abruptly, so did financing of programs and payment of employee salaries (already in arrears during the last phase of the Ghani government).
The Taliban may have good reasons to let the international aid community take responsibility for providing critical social services, yet the downside is a rapid erosion of equally critical state structures. The ministries central to humanitarian relief as well as poverty reduction in the longer run are now isolated, underfinanced, and marginalised by the emerging international humanitarian regime. These are precisely the ministries in which the donors invested heavily during the past two decades and that earned good marks for efficiency – MoPH, MoF, MRRD. Now shorn of both resources and a function, they will rapidly loose administrative capacity, and the state as we knew it will implode.
The Western position to bypass the Afghan state is similar to the policy adopted during the first Taliban rule.
The adoption of a UN managed Strategic Framework Agreement (SFA) in 1998 sought to ensure a coordinated and rights-based approach and ruled out transfer of funds to the Taliban state and any form of capacity-building of the state.
It did not work. Apart from dividing the aid community, the SFA increased tension with the Taliban by leading to policy posturing that often overshadowed efforts by some aid organisations on the ground to find workable compromises to meet needs. Senior UN diplomat, Lakhdar Brahimi recently reminded the UN Security Council that isolating rather than engaging the Taliban probably had been counter-productive by strengthening the hardliners and was unlikely to work with the Taliban of 2021. Researcher Ashley Jackson, in a recent article in Foreign Policy, similarly argues that the Taliban is unlikely to compromise on key issues and there is no alternative to engaging more broadly. As the head of UN’s humanitarian office, OCHA, Martin Griffiths, recently concluded, it is time to engage with the Taliban state.
There are several arguments for working with the Taliban state:
Given the present standoff between the Taliban government and Western governments, diplomatic recognition will likely take time. In the meantime, there is room for more constructive engagement based on dialogue and program cooperation that can facilitate a shift of policies and positions. The experience from the first Emirate shows that project cooperation on the ground was more likely to produce changes in practice than formal denunciations and demands. Concrete steps in this direction include, for instance, more licences to soften sanctions, a six months ‘reprieve’ over winter, payment of ‘bonuses’ to state employees in critical ministries (as some aid actors did during the first Emirate), and transfer some funds for ‘humanitarian+’ programs via the line ministries. Such measures will help maintain an Afghan professional capacity and sustain past donor investment in schools, hospitals and the general state administrative infrastructure that otherwise would be lost.