Introduction

This report presents a detailed examination of the challenges of access to justice and the human rights violations prevailing in Afghanistan’s judicial system under Taliban rule. It offers a comprehensive analysis of the widespread violations of fair trial standards within the Taliban’s legal and judicial institutions. Of particular concern is the significant obstacles faced by women and religious minorities in accessing justice. The report also highlights the changes in legal institutions impacting their independence and the lack of established legal frameworks to regulate judicial proceedings, which further compound the gravity of the situation.

The findings underscore the urgent need for substantial improvements in Afghanistan’s legal and judicial institutions to uphold human rights and ensure equitable access to justice for all Afghan citizens.

Following the Taliban’s resurgence in August 2021, Afghanistan’s judicial system collapsed. The Taliban dismantled existing laws and replaced professional personnel with their preferred candidates, primarily religious school graduates. This abrupt removal of past laws, particularly those governing judicial proceedings, has created a void in effective legal criteria and mechanisms to regulate the competence and powers of legal and judicial institutions. Coupled with removal of professional legal and judicial cadre, these changes have resulted in widespread disorder and chaos, characterized by violations of fair trial principles and rampant human rights abuses. The Taliban’s attempt to establish their own court system through documents such as the “Administrative Principles of Courts,”(Usul-nama e Edari e Mahakim)  “‌‌Bill of Courts,” (Layha e Mahakim)  and “The Law on Acquisition of Rights” (Qanoon e Tarz e Tahsil e Huqooq) has proven insufficient in addressing the existing challenges and effectively regulating judicial affairs.

Furthermore, the Taliban appointed judges, primarily students or graduates of religious schools, lack familiarity with judicial knowledge and fair trial standards. In this context, torture has become the most common method utilized for crime verification, leading to coerced confessions from the accused.

Rawadari’s investigation has exposed widespread violations of fair trial standards within the Taliban’s legal and judicial institutions. Women and religious minorities face significant obstacles in accessing justice, as they bear the brunt of these violations. The Taliban-controlled courts and judges employ inconsistent procedures when handling criminal and legal cases, resulting in a lack of coherence in legal proceedings. Additionally, women, particularly women victims of violence, have experienced increased challenges and stricter restrictions in accessing justice, owing to the discriminatory behavior exhibited by the courts.

The legal and judicial landscape under the Taliban is rife with significant challenges and serious violations, such as mistreatment of women and marginalized groups, torture, arbitrary and illegal detentions, widespread corruption, the presence of Illegal and secret prisons prisons, and the improper handling of criminal cases by non-judicial entities. Moreover, the lack of independence and impartiality within the courts intensifies these issues, leading to further obstacles in accessing justice.

This report is divided into three sections, each offering insights into the state of Afghanistan’s legal and judicial system under Taliban rule.

In the first section, we delve into the organizational structure and hierarchy of Taliban courts, shedding light on how they have been established and function. This section provides a comprehensive overview of the various levels of courts, their jurisdiction, and their roles within the judicial framework.

Moving to the second section, we explore the profound impact of the Taliban’s takeover on the legal and judicial system in Afghanistan. Here, we examine the dismantling of the previous legal framework, the dismissal of professional personnel, and the dissolution of specialized courts and prosecution offices. This section paints a vivid picture of the far-reaching consequences of the Taliban’s actions on the system that was once in place.

In the third section, we analyse the violations of fair trial principles within the Taliban’s legal and judicial institutions and the subsequent repercussions on the accessibility of justice. By closely examining these violations, we highlight the challenges faced by vulnerable groups, particularly women and religious minorities, in accessing a fair and equitable legal system.

The report culminates with a set of recommendations aimed at the de-facto authorities, the international community, and other relevant stakeholders. These recommendations address the pressing need for reforms and improvements within the legal and judicial system, with the ultimate goal of safeguarding human rights and improving access to justice for all Afghans, women, and men, in all parts of Afghanistan.

Methodology

This report aims to provide an accurate and comprehensive assessment of the performance of the Taliban’s judicial system and the state of access to justice for Afghan citizens. Gathering reliable information under the Taliban regime has presented significant challenges due to the surveillance by de-facto authorities and security risks to interviewees, but we have employed a robust methodology to ensure the validity of our findings. This report presents comprehensive data and information regarding the changes in the judicial and legal framework in Afghanistan from August 15, 2021, to June 2023. To prepare this report, Rawadari conducted 141 interviews with a wide range of individuals, including defense lawyers, current and former employees of the legal and judicial institutions, human rights defenders, survivors, and local reporters and journalists across 26 provinces (Kabul, Maidan Wardak, Ghazni, Herat, Farah, Badghis, Nimruz, Ghor, Kandahar, Helmand, Zabul, Uruzgan, Daikundi, Bamiyan, Panjshir, Paktia, Paktika, Khost, Kunar, Ningarhar, Balkh, Baghlan, Faryab, Jawzjan, Badakhshan and Kunduz) of Afghanistan. These interviews were conducted in the period of January- May of 2023. The obtained information was meticulously analysed, compared, and evaluated to ensure utmost accuracy and reliability.

To complement the primary sources, we have referred to the documents released by the de-facto authorities and related to the functioning of the legal and judicial institutions including Usul-namas and bills as prepared by the “High Office of Courts “ (Edara e Aali e Mahakim). Additionally, international human rights documents and previous Rawadari reports on human rights violations in Afghanistan have informed the analysis of this report.

We faced significant challenges in collecting and verifying information due to security threats and the restrictive environment surrounding the operations of legal and judicial institutions. Lack of direct access to places of detention and detainees further hindered our data collection efforts.  To ensure the safety and security of the interviewees and sources, we have chosen not to disclose specific details about their identities. In certain cases, to protect the security of victims and witnesses, we have withheld exact dates and locations of incidents of human rights violations.

Conclusion and  Recommendations

In conclusion, the findings of this report paint a concerning picture of the judicial system under Taliban rule in Afghanistan. The absence of clear laws and regulations, coupled with a lack of institutional and individual independence, has created significant barriers to justice. Interference from non-relevant entities, the prevalence of torture and mistreatment of detainees, arbitrary and unlawful detentions, and the disregard for fair trial standards have all contributed to a loss of trust in the Taliban’s judicial institutions among the Afghan population. This erosion of trust has pushed individuals to seek alternative, informal avenues for resolving disputes. This has particularly impacted women, specifically women victims of domestic violence who are left with no legal remedy and protection.

Almost two years into the Taliban’s governance, the absence of enacted legislation to regulate government institutions and protect citizens’ rights has resulted in widespread disorder and a steady erosion of basic freedoms. The lack of legal frameworks allows for arbitrary actions by Taliban members, undermining the rule of law and perpetuating a climate of fear and insecurity for citizens.

The existence and utilization of secret and illegal prisons and lack of regular monitoring of detention facilities under Taliban control raises serious concerns about the treatment and well-being of detainees. This lack of regular oversight further compounds the human rights challenges faced by detainees.

The absence of an effective and accountable mechanism to monitor the performance of legal and judicial institutions has fostered corruption and the violation of citizens’ rights. The lack of checks and balances allows for unchecked abuses within the system.

Addressing these issues requires collective action. The international community must hold the Taliban accountable for their actions, urging them to respect human rights principles and implement necessary reforms. Efforts should be made to pressure the Taliban to enact legislation that safeguards citizens’ rights and promotes access to justice. The United Nations should conduct comprehensive investigations into secret and illegal prisons, cases of torture, and detention conditions to shed light on these human rights violations.

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