RFE/RL’s Radio Azadi
December 1, 2021
Dozens of Taliban gunmen stormed the offices of Afghanistan’s Independent Bar Association (AIBA) in Kabul last week and ordered its staff to stop their work.
In a decree issued a day earlier on November 22, the Taliban put the AIBA under the control of its Justice Ministry, stripping the organization of its independence.
Taliban Justice Minister Mullah Abdul Hakim also declared that only Taliban-approved lawyers can work in their Islamic courts, effectively revoking the licenses of some 2,500 lawyers in Afghanistan.
His order has raised deep concerns about the impartiality and fairness of criminal trials under the Taliban, which seized control of the country in August after toppling the internationally recognized government.
Those fears have been exacerbated by the Taliban’s brutal form of justice. Under their tribal interpretation of Shari’a law, Taliban judges have routinely ordered public executions and amputations for convicted criminals.
Legal experts say the Taliban’s decree flouts international norms meant to ensure that people accused of crimes have access to impartial legal assistance in order to receive a fair trial.
“The [Taliban’s] grip is tightening,” says Samiullah Hamidee, a civil activist from the southern province of Helmand who founded the Organization for Social and Economic Development (OSED) before the Taliban takeover. “Access to independent legal [assistance] will soon become a thing of the past.”
“[The] lines are blurring,” Hamidee warned on Twitter. “A lawyer, prosecutor, and judge can be the same person at the same time.”
The Brussels-based Council of Bars and Law Societies of Europe (CCBE) says the moves means that all women are now excluded from the legal profession in Afghanistan, as well as “any lawyer with a legal education that is not in line with Shari’a or with the Taliban regime.”
“This will therefore exclude the possibility for any lawyer to exercise their profession freely and independently, making the protection of human rights in Afghanistan practically impossible,” the CCBE said in a November 25 letter to European Commission President Ursula von der Leyen.
The CCBE urged the European Union to take “urgent action” to support Afghan lawyers and the independence of their professional association.
‘Forcibly’ Taking Over
The AIBA president who was ousted by the Taliban, Rohullah Qarizada, said in a November 23 tweet that “50 armed Taliban came in AIBA and forcibly took over” the organization.
Qarizada noted that the AIBA had always operated as an “independent, non-governmental, and non-political” association that never received funding from the Afghan government.
He appealed for international assistance, saying the rights of Afghan lawyers should not be ignored.
AIBA member Banu Ahmadi told RFE/RL’s Radio Azadi that Taliban guards have prevented other AIBA staff and members from entering their offices since the building was “attacked by the Taliban.”
Tamana Siddiqui, another association member, told Radio Azadi that the Taliban decree amounts to removing the legal credentials of several thousand lawyers in Afghanistan — including hundreds of women who were licensed attorneys.
Siddiqui says the closure of the AIBA damages the integrity of the administration of justice in Afghanistan.
When questioned by Radio Azadi about the decree, Taliban spokesman Zabihullah Mujahid denied that the AIBA has been shut down.
“This association is not closed,” Mujahid claimed. “Lawyers have only been told to get a license from the Justice Ministry to operate under the supervision of the ministry. To prevent bribery and corruption, they have been told to get a license” from the ministry before they can practice law.
Jurist, a U.S.-based international legal news and commentary website, quoted its correspondent in Kabul as saying that the Taliban decree “does not state anything regarding the structure of AIBA.”
“The ministry interpreted the decision as authorizing it to bring AIBA under its structure and requested lawyers to obtain licenses from them,” said the correspondent, a law student whose name was withheld for security reasons. “The person appointed as the new AIBA head is said to be part of the Ministry of Justice but has no relevant experience.”
The London-based International Bar Association (IBA) has warned that such moves eliminate “safeguards” that should be in place “to avoid any possible suggestion of collusion, arrangement or dependence” between authorities and an attorney who defends those accused of a crime.
No Due Process
Haroun Rahimi, a self-exiled assistant law professor for the Kabul-based American University of Afghanistan, says the Taliban has essentially “annexed” the country’s bar association to its Justice Ministry and “put a Talib in charge.”
Rahimi says the move is an ominous sign about how the shadow courts of the Taliban’s insurgency are now being transformed into the state’s new judicial system.
“It’s important that the [AIBA] survives,” Rahimi says. “Attorneys should continue their work, but lack of independence is concerning. Under the rule of law, the legal profession must remain independent.”
But Rahimi notes that Taliban courts in the past also have often dispensed with “procedural restrictions” under Islamic law — particularly when Taliban judges have ordered public executions or amputations — “because they don’t see due process as an important issue.”
“They don’t have a pinch of due process at all,” Rahimi told RFE/RL. “In Islamic history, there are strong evidential safeguards against enforcing such punishments. But the Taliban don’t see it that way. They often have very quick criminal trials and they have not followed all the procedural safeguards that are in place in other countries under Islamic law.”
“It goes back to [the] idea of punishment as a mechanism of control,” Rahimi explains. “If you don’t have a strong state apparatus where you can actually control the population, more violent and spectacular public forms of punishment become a mechanism of control.”
Rahimi says that explains why Taliban punishments in the past were “so cruel and public and theatrical — whereas in other countries that are under Islamic law, it’s sort of sanitized under state institutions and prisons and such.”
During its brutal rule of Afghanistan from 1996 to 2001, Taliban courts used their tribal interpretations of Shari’a law under the Hanafi school of jurisprudence to prescribe extreme public punishments.
They amputated the hands of convicted thieves, flogged people for drinking alcohol, and shot or stoned to death those it found guilty of engaging in adultery. Executions were common.
Kabul’s national Ghazi Stadium became an infamous symbol of the Taliban’s brutality as punishments were carried out on the soccer field in front of large crowds.
Since returning to power, the Taliban has signaled a return to some of its past methods.
In September, the Taliban hanged four dead bodies from cranes in the western city of Herat, local media and witnesses reported. The men, accused of taking part in a kidnapping, were killed in clashes with the Taliban.
Mullah Nooruddin Turabi, the chief enforcer of the Taliban’s interpretation of Islamic law when the group last ruled Afghanistan, said the militants will once again carry out executions and amputations — though perhaps without as much public fanfare as in the past.
Written and reported by Ron Synovitz with reporting by RFE/RL’s Radio Azadi