The evacuation of judges and the future of justice in Afghanistan

"The judiciary has lost all its professional judges...and society at large will bear the cost"
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Afghanistan. Image credit: Antonio De Lauri

An independent and competent judiciary is a key component of a stable and reliable state apparatus, in Afghanistan as elsewhere. When the Taliban took over in August 2021, many judges – especially women judges – thought there was no more space for them in Afghanistan.

In June 2020, I interviewed judge Anisa Rasooli, the first woman ever to be nominated to the Supreme Court in Afghanistan’s history. During the interview, judge Rasooli stated: “I believe that the Afghan judicial system is regaining its decency. There are still problems, but considerable progress is being implemented. If the current situation continues, I am optimistic about the future of the judiciary in Afghanistan. However, if this trend is interrupted because of conflict or political and social unrest, then no one knows what the future of the judicial system will be. I really hope this will not happen.” One year later, the disruption feared by judge Rasooli became reality and she left the country in the chaotic evacuations that followed the Taliban’s return to Kabul.

Judge Rasooli is not the only judge to have left the country. I recently interviewed another woman judge, Tayeba Parsa, who thought her life would be constantly at risk under the Taliban and therefore decided to escape to Europe. Several others followed the same path. I asked judge Parsa about the current situation of the judiciary in Afghanistan, and she said that, to her knowledge, those judges who haven’t left the country have been fired or are being called to account by the Taliban. “The judiciary has lost all its professional judges and is now conducted by illiterate and inexperienced people, and society at large will bear the cost” she said, adding with anguish that “women have been eliminated from the judiciary. Having women in the judiciary was a great achievement that was lost so quickly.”

Having women in the judiciary was a great achievement that was lost so quickly

To be sure, the Afghan judiciary was far from being perfect and well-functioning even before August 2021. The massive legal reconstruction promoted and enhanced by the international community over the past 20 years hasn’t been particularly successful, partly because of the incapacity to understand the specificity of the Afghan justice system whereby different sources of law – such as state law, Islamic law and customary norms – converge.

From 2001 onwards, a broad reconstruction process of Afghanistan was promoted and implemented by a myriad of international organisations and state foreign actors, whose humanitarian and development goals were impossible to separate from political interests in the region and military occupation. Throughout the reconstruction process, there was a widespread tendency to legitimise all external interventions in the name of modernisation, while at the same time producing an image of Afghanistan as a society that is stuck in its own traditions and resistant to externally imposed “improvements.”

This attitude may explain why, in 2004, an interim criminal procedure code was promulgated without the necessary expertise in Islamic law and Afghan society, therefore making it very difficult to be used – several prosecutors in Kabul, for example, told me they often had to bypass it. Saber Marzai, prosecutor of Kabul’s 11th district, said to me on 12 March 2008: “Collaboration between prosecutors and police is very difficult. We often have tough confrontations. The work hasn’t been made any easier by the 2004 code, which isn’t adapted to our system. In most cases we have to work around it.” (Some years after this interview, the 2014 code repealed the 2004 code.) Overall, the opportunity for comprehensive judicial reform was wasted during the 20 years of reconstruction and a diffused sense of mistrust of the judiciary persists.

A few positive changes, however, took place. For instance, amidst serious problems including corruption, nepotism, political influence and gender segregation, the presence of women in the judiciary increased in past years. Before the Taliban’s takeover, there were around 250–300 female judges in the country, most of them in Kabul, comprising approximately 8–10 percent of the judiciary as a whole.

The post-August 2021 evacuations and the Taliban’s intimidating approach toward those who remained in the country, left the judiciary extremely weak and compromised. Indeed, this is a dilemma for those who left, and indirectly for those who facilitated the evacuations, namely diplomats, researchers, judges associations, NGOs and so on. In fact, while the primary goal in the event of dire circumstances such as an evacuation is always to protect lives, it cannot be ignored that, for a very few who are able to leave, there is a vast majority who must deal with the reality of a country that now faces in all its dimensions the spectacular failure of 20 years of military and humanitarian intervention that made Afghanistan possibly even more dependent on foreign aid. A failure topped by a rushed evacuation not properly handled by the US and its allies – pretty much the opposite of what Joe Biden claimed to be an “extraordinary success.” The fall of Kabul was absolutely predictable and a transition of power, if that was the implicit intention of the earlier US–Taliban negotiations, should have been better prepared.

Made Afghanistan possibly even more dependent on foreign aid

In the complicated discussions that will take place between the Taliban leadership, foreign governments and international organisations, all actors must now pay attention to those aspects that are crucial for Afghans’ everyday lives, including the organisation and implementation of justice (in addition, of course, to pressing issues such as salaries, food, etc.). Competence was lost with the need of many judges to flee the country for their own and their families’ safety. Judge Parsa’s hope is to go back to Afghanistan one day to be able to continue her work. Her concern is what kind of judicial system she will then find.