The Afghanistan Analysts Network (AAN)

Afghanistan remains an attractive place for international jihadists to come and fight, despite the competing appeal of Syria, Iraq and elsewhere. Since the post-2001 insurgency broke out, foreign fighters have come from Pakistan, Central Asia and the Arab world, some bringing their families. An unknown number have ended up in Afghan detention. More information about these detainees, says AAN’s Kate Clark, would help give a better idea about the foreign contingent fighting in the insurgency. She also looks into what the Afghan government is doing with them.

The research for this dispatch is supported by a grant from the Open Society Foundations. This is the latest report in a series by the author on the detention of foreigners on Afghan soil (for earlier reporting, see AAN’s Detentions Dossier.

Who are Afghanistan’s foreign security detainees?

Trying to get information on security detainees in Afghanistan is always tricky, particularly so when they are foreign. There is no publicly available detail on numbers or nationalities, so information for this piece has been pulled together from several off-the-record interviews with government and non-government sources, as well some public documentation and press reporting.

One source of information is the claims made by government officials to the media that foreign fighters have been captured. Such reports need to be treated with some caution. Research by AAN last year (“How to identify a Chechen”) questioned the evidential basis of many of the claimed sightings of Chechens, both alive and dead, for example. (1) The Afghan authorities may also be no better at identifying suspects than the United States was. Many of those it held at Bagram and Guantanamo, both foreign and Afghan, turned out to be non-combatants. The ‘Pakistani militants’ at Bagram, according to details provided by their lawyers, included minors, old men and even a Shia accused of belonging to the Sunni-sectarian group, Lashkar-e Tayba.

With these caveats in mind, news reports of the capture of foreign fighters mainly concern Central Asians (often mixed groups of men, women and children) and Pakistanis (men only). (2) Most of the reported arrests occurred in Nangarhar, which makes sense. The province has a porous border with Pakistan’s tribal areas, where there has been a concentration of foreign and Pakistani militant groups, and ‘hosts’ the one stronghold of Daesh (Islamic State of Khorasan Province) in Afghanistan (see AAN reporting here and here), making it attractive to some international jihadists. Military operations by the Pakistan army in North Waziristan – the Zarb-e Azb operation and its successors – launched on 15 June 2015 and continuing since, have also driven many foreign militants across the border into Afghanistan. The other ‘hot-spot’ for reports of foreign detentions is the north (AAN has a forthcoming dispatch touching on foreigners fighting with militant groups there) with occasional reports from the south-east.

This pattern of reporting matches information from the team which monitors al Qaeda, Daesh and individuals and groups ‘associated’ with al Qaeda for the United Nations Security Council sanctions committee. In its January 2017 report, the team said fighters loyal to “Al-Qaida-affiliated groups, including Lashkar-e-Tayyiba and Tehrik-e Taliban Pakistan” who had fled the Operation Zarb-e-Azb in Pakistan “continue to fight within Taliban groups,” and that “Al-Qaida fighters acted as specialized instructors for Taliban groups, in particular where the design of improvised explosive devices was concerned.” Despite dwindling resources, the team said that al Qaeda “remains hopeful that the Taliban will be successful and that it can ‘piggyback’ on that success.”

The UN monitoring team also reported, in January, that about 700 foreigners were fighting for Daesh (ISKP) alongside about 900 Afghans in Nangarhar. Although the group had sustained heavy losses, it reported, recruitment was still high from the “Afghanistan/Pakistan border region.” In the north, the monitoring team said fighters from the Islamic Movement of Uzbekistan continued to fight… as a distinctly identifiable group.”

The significance of the foreign fighters – and a plea for information

Afghan officials often highlight the foreign element in the Afghan insurgency in claims that look designed to attract central government or international resources or explain territorial losses. Such claims are not just found at the local level, but also at the most senior. On 6 March 2017, for instance, National Security Advisor Hanif Atmar told the Asian Security Conference in Delhi that a quarter of the insurgents – he estimated 10,000 men ­– were foreign. The statistic seems scarcely credible.

More information about the foreign detainees could help firm up government claims. It could also undermine them, which might be why officials are so unforthcoming on detail. During ISAF’s tenure in Afghanistan, for example, a former senior officer who served in the later years of the mission, told AAN, they found that most of the insurgents they detained were Afghan and Taleban, and were picked up fighting very near to where they lived. He said that even though there was reporting bias (most detentions resulted from night raids which would emphasise the local character of those captured), the findings still undercut claims then of the significance of foreign fighters in the war.

Atmar’s claim that a quarter of the militants are foreign appears far-fetched. However, lower numbers are still significant, says Taleban specialist Michael Semple of Queen’s University, Belfast:

To judge their significance, you do not just count them. [The foreign fighters] include some of the most experienced military functionaries. In particular, they have a reputation for supplying the most competent attack planners… particularly for urban terrorist attacks. They are not numerous in blowing themselves up – they probably do not want to deplete their numbers – but they are certainly involved in preparation, including rigging up vehicles as IEDs, and also in training.

In terms of their impact on the civilian population, foreign fighters may also loom large. They tend to be more abusive than Afghan fighters because of the absence of any restraining local or tribal ties. One researcher in Paktia described foreign fighters there as “independently powerful” and beyond Taleban discipline. (3) Some foreigners may come under direct Taleban command, says Semple, fighting as ‘embeds’, but many are partially or fully autonomous. Al Qaeda fighters, for example, should act in coordination with the Taleban’s military command structure, given that their leader Aiman al-Zawahiri has formally sworn loyalty to successive Taleban leaders, but even that is not always the case. Foreigners fighting with Daesh tend to be completely free-floating. (4)

Whether foreign jihadists act as free agents or ‘force multipliers’ for the Taleban, it is clear that Afghanistan still has attractions for them: it is the place where mujahedin defeated a superpower, where the Taleban created an ‘Islamic state’ in the 1990s, where the 9/11 attacks were conceived, and one of the few places where jihadists can still try to kill American soldiers. From an analyst’s point of view, it would be useful to have more accurate, publically-available information about the foreigners now in Afghan detention – their names, number, nationalities, who they were fighting with, when and why they come to Afghanistan, and so on. The make-up of the security detainee population says a lot about the make-up of the insurgency, including the role and likely strength of the foreign contingent.

What to do with foreign detainees?

While the number of foreign security detainees is unknown, some are creating dilemmas for the Afghan government in ways that will be familiar to the United States. The US ran its own detention facilities in Afghanistan until December 2014 and opted to hold both Afghan and foreign detainees without trial (also called administrative detention and internment). In 2005, it introduced a system where review boards assessed cases periodically and could decide to release detainees. After such decisions, Afghan detainees would be released quickly, but foreigners could find themselves languishing in limbo in the US detention facility at the Bagram airbase, north of Kabul, for years. The US was loath to release them in Afghanistan where they might join or re-join the insurgency. Instead, it sought guarantees from the detainees’ home countries that they would be both monitored and not be tortured, or it tried to find third countries willing to give the same guarantees.

The US was dilatory about finding places for such men until 2014, its final year in charge of Bagram, when it suddenly managed to transfer more than 50 detainees out of Afghanistan (for more detail, see here). In the end, it had just six foreigners left in its custody when its detention programme ended. These six were handed over to the Afghan authorities on 12 December 2014 (read about them here). Two of them were soon repatriated. (5)

Internment or trial – and then what?

President Hamed Karzai was unwilling to use administrative detention, despite US pressure to do so and moved swiftly to stop its use in 2012 when he discovered that Afghan officials, following the US example, were using it at Bagram (see here and here). President Ashraf Ghani, however, decided to introduce the measure, issuing a decree on 9 October 2015. Parliament, however, rejected it. (6) So, currently, the only way to detain someone legally in Afghanistan is through the courts: prosecution and conviction. In this regard, AAN has been told, foreign security detainees are treated the same as Afghans. “If they committed crimes in Afghanistan,” said the then commander of Bagram, General Faruq Barakzai, in 2015, “[they] will be prosecuted like Afghans, according to Afghan law. An Afghan court will decide whether it views their cases and finds them guilty, or finds there is no evidence against them.” (7)

However, if a foreign security detainee has been tried and convicted and has served his or her sentence, the Afghan government finds itself facing the same problem that confronted the US military after it decided a detainee no longer needed to be detained: what to do with him? Some foreign detainees can be repatriated, but not all. Some countries, AAN was told by a senior government official, do not want their nationals back. For other detainees, it is the risk of torture which makes repatriation tricky and potentially illegal. Under the Convention Against Torture (CAT) (signed by Afghanistan in 1984 and coming into force in 1987), an individual may not be transferred if there is “substantial grounds for believing that he would be in danger of being subjected to torture” (the principle of non-refoulement codified in article 3 of the Convention).

Details on transfers of prisoners and instances where the government has not been able to transfer third country nationals can be found in a government submission, received on 1 April 2016, outlining Afghanistan’s record on torture (see paragraphs 148 and 157 to 161 here). The submission was made for the CAT committee ahead of hearings, held on 24 and 25 April 2017, to review Afghanistan’s adherence to the Convention (see AAN reporting here).

The CAT committee had asked Afghanistan to outline procedures, safeguards and records on the transfer of prisoners and extradition of suspects and convicts, bearing in mind the non-refoulement principle. The submission said that all extraditions and transfers “shall be based on the mutual agreements considering the international conventions.” The requesting state must be a party to the CAT, not be accused of torturing those accused or convicted of crimes, and provide “a letter guaranteeing that torture and inhuman treatments will not be inflicted on the extradited criminal or prisoner.”

The submission says that in 2013, in accordance with ‘mutual extradition and judicial cooperation treaties’ with Iran and Tajikistan, 31 Iranians and nine citizens of Tajikistan, “arrested following various reasons were transferred to their country.” (It is noticeable that such treaties do not exist for Pakistan and other Central Asian countries where foreign security detainees are likely to come from.) One citizen each from Bangladesh, Nepal, South Africa, Iraq, and Turkey were also repatriated that year, with the prisoners’ written consent. The government did not give more up-to-date figures or detail as to whether these individuals were ordinary or security prisoners. However, the submission also said that seven Iranians, three citizens of Kyrgyzstan, one from Tajikistan, and one Iraqi had ‘disagreed’ with being repatriated and had instead asked to seek asylum in other countries. The Afghan government has introduced them to the International Red Cross Committee (ICRC) to seek help in this.

Dealing with the American legacy

Since this submission, at least four more foreign detainees are believed to have asked not to be repatriated, following the end of their prison sentences or after having been found not guilty. They were all previously detained by the US and were handed over to the Afghan government on 12 December 2014. We have detail on them after a Freedom of Information Act (FOIA) request in America led to the release of some of their files (see also AAN reporting on the detainees). After transfer to Afghan custody, AAN was told that prosecutors began to prepare cases against them (read about that here).

Two of the detainees are brothers from Tajikistan, Said Jamaluddin and Abdul Fatah, born respectively in 1990 and 1983 in Dehgalman. (8) They are the sons of a well-known and longstanding jihadist leader, Mullah Amruddin (also known as Amriddin Tabarov), a 60 year old Tajikistani militant who is reported to have come to Afghanistan in 1993 and who fought with different Central Asian and Pakistani jihadi groups in both Afghanistan and Pakistan. The brothers were captured on 22 March 2009 during a raid on a house in Imam Sheh [as written, probably Imam Saheb] in Kunduz and admitted, their files say, to being members of the Islamic Movement of Turkestan. It is one of the constellation of splinter groups and re-brandings around the Islamic Movement of Uzbekistan (IMU). (9) The US decided, more than seven years ago, on 23 February 2010, that their continued detention was no longer necessary to “mitigate the threat” it said they posed, and they could be transferred.

No suitable place was found for them, however, and, in 2014, they found themselves transferred into Afghan hands. Soon after, in February 2015, they were put on trial not for a terrorism-related offense, but for illegal entry into Afghanistan (see this Washington Post piece which quotes their lawyer). The judge found them guilty and gave them a three year jail sentence, but he ruled that their years already spent in detention cancelled the sentence out. Nevertheless, AAN was told, the pair are still in custody in Bagram. They fear being tortured if deported to Tajikistan and have requested asylum in a third country.

The third ‘inherited’ detainee is an Uzbek, Musa/Muso Akhmadjanov/Ahmedjanov, son of Anwar Ahmedjanov. He was born in Tashkent in 1980, and according to his US file, was captured on 23 May 2010 as he crossed into Afghanistan from Mashhad, Iran. He has told his lawyer (quoted in the same Washington Post article) that he had left Uzbekistan because the authorities were harassing him over growing a beard and “looking like a Muslim.” His lawyer said he went to Turkey where he married a local woman, but was then expelled, in 2010, for not having a visa. His US case file says he admitted to being a member of the Islamic Jihad Union (see footnote 9) and alleged he had been facilitating the movement of foreign fighters across Afghanistan. According to the Post, however, the Afghan courts have repeatedly ruled that there is insufficient evidence of his having done anything illegal in the country. “We have concluded to [sic] hand over the accused person to the officials of his country,” the newspaper reported a three-judge appellate panel as ruling in May 2015. “[If] the individual would feel threatened from [a] safety perspective, then we request application of international law for his safety and security.” Ahmedjanov told his lawyer he would like to go back to Turkey, but according to the Post, the Turkish authorities can find no record of his marriage. He is also, AAN was told, still in Bagram.

Finally, the Egyptian Abu Ikhlas al-Masri was born on 31 December 1963 in Dimiat in the Nile Delta and came to Afghanistan to fight the Soviet occupation in 1988. He never returned home, but married a woman from Kunar province and settled there. As a young man, he had joined the Egyptian militant group, Islamic Jihad, members of which would go on to form the ‘Egyptian’ element of al-Qaeda under the leadership of Ayman al-Zawahri. By 2006, Abu Iklhas was appearing regularly in media and academic reporting as ‘a’ or ‘the’ senior al-Qaida commander in Kunar. (10) He was reported captured in December 2010 during an attack on Jalalabad airport. A leaked ISAF report from 2012, State of the Taliban, reported him as telling his interrogators, “Pakistan knows everything. They control everything. I can’t (expletive) on a tree in Konar (Province) without them watching. The Taliban are not Islam. The Taliban are Islamabad.” It is not known how the trial of Abu Ikhlas went, but AAN was told he is also still in custody in Bagram, despite having finished his sentences.

The particular problem of women prisoners

Foreign detainees include women and their children, as well as men. AAN was told that some have been put on trial and convicted of security offences, but not all. For example, we were told of five “Daesh widows” (from Uzbekistan and Tajikistan) who were picked up, along with three children, on the road from Nangarhar to Kabul last year, fleeing the fighting in that province. An official told AAN they were questioned, but no charges were brought. Despite the lack of charges, the women and children have remained in custody and here, there seems to be a conflation of two thorny issues: what to do with foreigners with no place to go and also what to do with women who have no mahram (guardian). It is a “weird legal black hole,” one official told AAN.

Detention dilemmas

The Afghan government finds itself in the same quandary as the US, unable to repatriate some of its foreign detainees, but also unwilling to release them for fear they will join or re-join the insurgency. For now, the Afghan government has opted to continue to hold them. (11) This is essentially illegal, as Afghan law has no provision for administrative detention. As the US discovered, finding third countries willing to host such men is difficult and Afghanistan has far less clout than America. It may be, therefore, that those deemed suitable for release but who fear torture if repatriated could find themselves in custody for many years to come.

Edited by Martine van Bijlert

 

(1) The piece quoted an ISAF officer with years of experience in northern Afghanistan who wrote in 2011:

We see it here [Mazar-e Sharif] in the provincial hospital, where dead bodies of insurgent KIAs are brought to. When the bodies are not claimed by family members, they are automatically labeled Foreign Fighters and depending on their faces: Asiatic = Uzbeks; dark-skinned = Pakistani; and Caucasian = Chechens. This is done by doctors as well as police and everybody takes it at face value. 

(2) A search on the internet looking for news reports of foreigners detained in the last three years produced the following items, all of which quote Afghan government officials as their source:

Two ethnic Uzbeks, both Tajik nationals, were detained in Kunduz on 9 June 2014. A third man, reported to be Pakistani who had accompanied them, was said to have blown himself up after refusing to surrender.

27 “armed Pakistani citizens” were arrested in Paktia on 26 August 2014, while travelling in a four-vehicle convoy that also included a military vehicle, said the Ministry of Interior.

Five alleged members of the Pakistani Taleban suspected of perpetrating the 16 December 2014 attack on the Army Public School in Peshawar, which left 150 people (mainly children) dead, were detained on 14 January 2015 in eastern Afghanistan.

“[N]ine Russian-speaking militants,” five men, a woman and three children (sic), the Nangarhari governor’s spokesman said, had been arrested on 10 December 2015. Most likely, said The New York Times, they were Central Asians coming from Waziristan in the Pakistani tribal areas to join Daesh in Achin and Kot districts of Nangarhar. The woman blew herself up, killing herself, the three children and a security official.

Fifteen foreigners were reported detained in Nangarhar on 13 December 2015 – twelve Uzbeks and Tajiks, a mixed group of men, women and children, in Rodat district, and, separately, three Pakistanis, residents of Kuramm, Tirah and Swat, in Ghani Khel districts.

Five “Russian-speakers”, were detained on 18 March 2016 by the Afghan intelligence agency, the NDS, the agency announced: three women and two men during a house search in Khiwa district of Nangarhar.

Two citizens of Tajikistan were captured, again by the NDS, on 13 July 2016 in Bati Kot in Nangarhar, together with two Afghans from Parwan; all four, the NDS said, had been intent on travelling to Iraq and Syria to join Daesh.

Two Pakistanis from Khyber Agency suspected of belonging to Lashkar-e-Islam were reported arrested in Achin district on 6 November 2016.

Seven Pakistani Taleban were reported arrested, along with two Afghan Taleban, in Ghanikhel district of Nangarhar, reportedly with arms, on 9 January 2017.

(3) The local researcher blamed Pakistani Waziris and other foreigners who had crossed into Paktia in 2010 in large part for the deterioration of security in the province. He said:

If there is a problem between local people and local Taleban, there is a chance it can be sorted out. With Taleban from further afield, it is less easy. There is no comeback against the foreign fighters… People have gone to Waziristan to complain [to the then shura in Miram Shah] but there they just shrug their shoulders. It is like when NATO commits a crime, what can Karzai or the ANA do?

(4) Semple points out that foreigners can never be completely autonomous in Afghanistan. They need locals “to vouch for them in dealings with the civilian population and with other fighters.” Foreign militants therefore recruit Afghan helpers, known as ‘ansar’, after the title given to the people of Medina who helped the Prophet Muhammad in his exile from Mecca. The US military would call them ‘facilitators’.

(5) The two men who were repatriated had been ‘rendered’ from Pakistan to Afghanistan by the CIA in 2002 and badly tortured at one of the agency’s black sites (read about their experiences here).

(6) MPs rejected detention without trial, but, on 11 May 2016, did pass other controversial parts of the decree, including authorising the Afghan intelligence agency, the NDS, to hold and interrogate individuals without judicial oversight or possibility of legal challenge for 60 days. The normal limit under the 2014 Criminal Procedural Code is 72 hours.

(7) See also the government’s submission (http://tbinternet.ohchr.org/_layouts/treatybodyexternal/SessionDetails1.aspx?SessionID=1108&Lang=e) to the Convention Against Torture Committee (see AAN reporting here which said:

During military operations against terrorist groups – in which foreign citizens are too [sic] – they resist the security forces at the time of their arrest. The security forces in that situation resort to use of force and tough treatment. But, after the arrest, during prosecution, they shall not be tortured and shall be treated based on the laws of Afghanistan. After being assessed by the relevant prosecutor, the courts will decide on their extradition to other states. (p23)

(8) The US gives all detainees a unique Internment Serial Number or ISN. These are crucial for tracking detainees through US files because spellings of names vary or sometimes are not given at all. The numbers of the four men detailed here are: Said Jamaluddin (ISN 4057), Abdul Fatah (ISN 4058), Musa/Muso Akhmadjanov/Ahmedjanov, (ISN 20370) and Abu Ikhlas al-Masri (ISN 21064).

(9) Central Asian jihadi groups are fissiparous and confusing. The oldest, the Islamic Movement of Uzbekistan (IMU), emerged in the early 1990s after the Karimov government cracked down on all legal opposition groups in the country and some Islamist activists went underground. It is also the best known in Afghanistan because of its presence during the Taleban era, fighting alongside the Taleban against the Northern Alliance in exchange for a safe haven. In 2001, IMU fighters fled to the Tribal Areas of Pakistan, but particularly since the Pakistani Zarb-e Azb offensive in North Waziristan, have been fighting on this side of the border.

The Islamic Jihad Union split from the IMU in 2002. Originally founded by Uzbeks, it seems to have concentrated on recruiting Turkish and German-Turkish fighters (see a detailed paper on IJU here). The Islamic Movement of Turkestan was another split/rebranding of the IMU, which however never amounted to much.

(10) See mentions of Abu Ikhlas here, here, here, here, here and here.

(11) In the course of the research for this piece, AAN was told by both a senior government and a non-government source that some foreign detainees have more recently been transferred to their home countries despite a substantial risk of torture. AAN was told of a Kazakh Islamic State commander deported to Kazakhstan, and a group of Uighurs to China. This information has not been verified, but we were told the government was motivated by the foreign policy imperative of maintaining good relations with countries in the region. If true, this would represent a possible breach of the Convention against Torture and thus, is an issue that needs watching.

 

The United States is reviewing its military strategy towards Afghanistan, as part of an overall strategic review. Nothing is certain until President Trump makes a final decision, but proposals, drawn up with the Afghan government, are circulating. We already know what the commander of US and international forces in Afghanistan, General John Nicholson, would like to see: a focus on support to the Afghan special forces and air force, reform of the defence and interior ministries and a few thousand more NATO soldiers. Kate Clark concludes that this is basically a plan for maintaining the status quo, albeit with an eye to trying to shift the balance of fighting in favour of the Afghan government.

A key aspect of the proposals being put forward by General Nicholson and President Ghani is reform of the Ministry of Interior and the police force, a subject which will be looked at in detail in a second dispatch.

By the end of last year, the US was supposed to be down to minimal troop numbers in Afghanistan, fewer than 1000, enough just to guard the Kabul embassy. When President Barack Obama announced, on 27 May 2014, that “America’s combat mission” would be over by the end of that year, he laid out plans for the phased drawdown of residual US troops. His plan envisaged the Afghan National Security Forces (ANSF), after having received two years of NATO/US support (2014-2016) and with continued external funding, to be able to hold their own on the battlefield. (1)

Subsequently, however, in October 2015, Obama was forced to slow the planned reductions of US troops and then, in June 2016, to increase the authority of the US commander in Afghanistan to order offensive military action. From that time, the US commander could order offensive strikes not just against al-Qaeda and the Islamic State, but also the Taleban, and not just for reasons of “counterterrorism” but also for “strategic effects.” For example, if he believed US firepower could prevent a town or city falling to the Taleban, a senior officer told AAN, he could now order air strikes. Although, US air strikes in Afghanistan had not ever ceased, the change in the commander’s authorities did result in an increase in their use.

Obama was forced to abandon his hoped-for, orderly, phased withdrawal of troops because of events on the ground. After the transition to a largely non-combat international military mission and full Afghan responsibility for security at the end of 2014, the Taleban proved to be stronger than hoped for and the ANSF weaker. The withdrawal of international air cover also meant the Taleban could mass in ways that had previously been suicidal, and they could launch ground offensives, including against urban population centres.

Various assessments of who controls how much territory and how much has been lost to the Taleban in the last two years have been made (see a 2015 assessment by AAN, and the quarterly assessments by the Special Inspector General for Afghanistan Reconstruction, SIGAR including its most recent here). (2) There have also been disputes not only over figures, but what ‘control’ means, as well as assertions that loss of government territory is partly deliberate withdrawals to ‘areas of more strategic importance’. Regardless of all this, the trend is clear – and not good: the government has been steadily losing territory since the end of 2014. According to the latest SIGAR report, the government now controls or ‘influences’ about 60 per cent of the country’s districts, where 65 per cent of the population live. Meanwhile, it says, 11 per cent of districts, where 34 per cent of the population live, are controlled or influenced by the insurgents, and 29 per cent of districts, where 25 per cent of the population, live are contested. (3)

The US’ direct intervention in the war has proved critical at particular junctures. For example, on the night of 29/30 September 2015, after the Taleban had captured Kunduz city, US and Afghan special forces defended Kunduz airport against a concerted Taleban attempt to overrun it. The capture of the airport would have meant the loss of the last government supply route to the city, making its re-capture far more difficult. Air strikes in Badakhshan that summer also broke the Taleban advance there. There were similar instances in 2016; after the Taleban took parts of the outskirts of Lashkargah in Helmand on 13 October 2016, US air strikes were ordered to support Afghan commandos deployed to the city and Lashkargar was held (although there was still fighting just outside and in nearby Nad Ali).

Despite the occasional importance of the US stepping into the war, its combat role is now, in reality, tiny. In terms of who is fighting in Afghanistan, this is an Afghan-versus-Afghan war. (4) In terms of support, however, both sides remain reliant on external backers. The Taleban would not survive in their current form or at their current strength without Pakistani backing and, most importantly, sanctuary. The ANSF also get strong external backing, most importantly funding and military hardware. (5)

It is worth noting that research on insurgencies globally has shown that to be successful, they need a measure of internal support and external sanctuary, whereas “a government with chronic legitimacy problems, and [one] that cannot seize and retain key territory from the insurgency, has a very low probability of winning.” The government and the US could argue that the Afghan state has ‘only lost’ peripheral territory and not key population centres, although some centres (Kunduz, Lashkargar, Maimana, and Tirin Kot) have been menaced by the insurgency. Even if that is the case, the general recognition remains that the government cannot win this war militarily, and neither can the Taleban. The conflict will continue unless one side loses its external backing or there is a negotiated end to the conflict.

US-Afghan views and proposals

Unlike the Karzai years, when US strategies could be drafted in opposition to, or with only the grudging acceptance of the Afghan government, President Ghani and Chief Executive Abdullah, as well as key figures like National Security Advisor Hanif Atmar, have been in close consultation with US officials and officers and the plans have been developed together. Ghani recently told Time magazine:

Input has been two-fold [ie from the US and Afghanistan]. We prepared a four year plan. It was completely driven by me, and by my colleagues, our national security council has agreed on it. Then we shared it … We have been very lucky. It’s probably very rare in history to have so many top [US] security officials be the friends of Afghanistan…. [W]e know people who know us intimately. The conversation has been enormously productive.

Ghani’s is a very different view of the war than Karzai’s when he was in office. The impression Karzai often gave in the later years of his presidency – and still gives – was of the US military oppressing Afghans, with him as bystander, a champion of the Afghan people and critic of the foreigners. Ghani and Abdullah have taken a different tack; Ghani has explicitly said the government ‘owns’ the war and the narrative of the leadership is very much about the ANSF protecting the people, with international support. (6)

US thinking still very much matters in this equation, however. It is the donor with the biggest pockets, providing seven-ninths of the funding to the ANSF. Since January 2015, it is also the only international military still authorised to carry out combat operations in Afghanistan. (The US has a ‘can-be-combat’ counter-terrorism  Freedom’s Sentinel mission. NATO has a non-combat Resolute Support Mission which the US is also the major contributor to. For detail, see here.)

The emerging American view of the war ­– from those on the ground – was seen first in the testimony given by the commander of US and international forces in Afghanistan, General John Nicholson, to Congress on 9 February 2017 (read a transcript of the 90 minute hearing here). The ‘positive trends’ he cited were few and far between. They included, for example, the reduced time it was taking the ANSF to recapture district and population centres from the Taleban (a drop from weeks in 2015 to days in 2016) and the fact that the Taleban had been prevented “from achieving any of their major objectives.” He assessed the war as “a stalemate where the equilibrium favors the government.”

It is hard to see how this can be so, given that the government has been steadily losing territory. Moreover, for local populations that stalemate is itself deadly; it is civilians’ land that is being fought over. Last year saw the highest number of civilian casualties in any year since UNAMA started systematically documenting them in 2009 and half a million people fleeing their homes to become internally displaced. The loss of lands also prevents economic recovery and erodes services in the countryside, among them some of the most celebrated achievements of the past 16 years such as in schooling and health (for example see AAN analyses here and here).

Nicholson blamed the continuing strong showing of the Taleban on “external enablement” by Pakistan: “[T]he primary factor that will enable our success is the elimination of external sanctuary and support to the insurgents.” He called for a “holistic response” to Pakistan, but without going into more details. However, Nicholson also spoke about the need for reforms in the ANSF with some strong words: “poor leadership, tactics, and training, as well as corruption… undermines combat effectiveness.” He proposed concentrating on what works in the ANSF, those parts that have “offensive capability” and which, in his view, could “break the stalemate in Afghanistan.”

This means the Afghan special forces (in both the army and police) and air force. Both suffer from less corruption, have merit-based appointments, good leadership, good morale and esprit de corps. They have also benefited from better training, weapons and close mentoring from US and other counterparts. Both are under pressure from over-deployment as they are used to compensate for the lack of fighting capability, not only offensive, but also defensive, in the rest of the Afghan National Army (ANA). Nicholson has proposed expanding both, with the special forces growing to become a corps. Both he and President Ghani have said the need for reform of the ministries of defence and especially interior (which is more corrupt) is pressing.

Nicholson also proposed increasing the number of NATO troops, ie for the non-combat Resolute Support mission, by a few thousand. This has now been progressed to NATO formally asking members and allies for more soldiers. Australia, Norway and the UK have responded affirmatively while Germany – just before an election campaign – reacted reluctantly. At present, NATO advisors, apart from those dealing with special forces, are largely in corps headquarters. “[T]hese additional forces,” said Nicholson, “would enable us to thicken our advisory effort across the Afghan ministries and do more advising below the corps level.” (7)

As to the aims of all these proposals, Nicholson listed them as follows:

…the destruction of Al Qaeda Afghanistan, the destruction of Islamic State in Afghanistan, helping the Afghans extend their control to at least 80 per cent of the population, working closely with the Pakistanis to eliminate or reduce sanctuary for the Taliban, Haqqani, and other groups inside Pakistan, and then working with the Afghans and the international community for an Afghan-led peace and reconciliation process. 


Much has been made of the proposal to increase foreign troop levels, with talk of Nicholson’s plans being a significant shift in US policy: a move away from drawing down (Obama) to, if approved, increasing troops (Trump). The Washington Post said the proposals represented “a major shift in strategy in Afghanistan that would effectively put the United States back on a war footing with the Taliban.” The Voice of America said it would “mark a dramatic shift in America’s longest war.” The proposed deployment has been described in the US press as a “mini-surge” (and even a “massive troop surge”). Both seem an exaggeration.

In reality, the increase in international troops would be marginal, relative to the Afghan government forces (350,000) and to both the current international force (three to five thousand added to 11,000) and previous levels (at the height of the ‘surge’ there were more than 100,000 American soldiers and 30,000 from other countries in Afghanistan, all deployed in a combat mission). (For a good graphic illustration of the relative numbers, see this graph from NPR.) Also, it appears this is an expansion of the NATO non-combat Resolute Support mission, which looks more like a tweaking of the mission inherited from Obama by Trump, than a significant change.

Fundamentally, these plans aim at maintaining the status quo of the war with a tilt in power towards the government, rather than the current tilt towards the Taleban. The thinking is that improving government forces’ strength on the battlefield – by improving the capability of the ANSF – and weakening the Taleban – by finding ways to pressure or persuade Pakistan to reduce its support to the insurgents – will tip the balance of the conflict in favour of Kabul. Even then, however, the aim is not to win the war, but to get to a point where the Taleban want to negotiate.

The strategy is familiar, resembling the thinking behind Obama’s surge of 2009 to 2012. During the surge, the aim was to boost the numbers of US and foreign forces so that they could go on the offensive and capture territory, while hoping the government would reform itself enough to hold onto it. This time the aim is to get the ANSF fighting better so they can capture and hold territory. Both times, the aim was not to win the war, but to put the Taleban on the back foot, and to force the movement to recognise it cannot win the war and it would be better to negotiate. (8)

Ways to break the stalemate

Nicholson’s thinking proposes two ways to shift the balance of the war so that the government controls more territory and more of the population. One is to reduce or eliminate external support for the Taleban. The other is to strengthen the ANSF. One could add a third – peace talks – but Nicholson’s proposal actually puts off negotiations until some time in the future.

Many Afghans (and others) believe that if only the US could force the Pakistanis to stop backing the Taleban, the war would be finished. Such a break in support can destroy a rebellion. See, for example, the crushing of the Iranian-backed Iraqi Kurdish insurgency in 1975 after Iraq made a deal with Iran, known as the ‘Algiers Accord’. (Iran stopped supporting the Kurdish rebels, but only after Iraq agreed to a humiliating climb-down on border claims, so this was achieved at great cost to Baghdad.)

In the case of Pakistan, nothing tried yet has achieved much traction at all. Pakistan’s acquisition of nuclear weapons has shielded it from some pressure, as has the risk (akin to the risk that keeps international support coming to Kabul) that if US cut support to Islamabad, a worse, more chaotic and more extreme country could result. Also importantly in this equation, the US needs to keep roads and air space open through Pakistan for its military supplies. Its dependency on this route is far less, now that its troop levels are so much lower, but it is still there. In other words, the US does not have a free hand in how it deals with Pakistan.

Much could still be done to put more pressure on Pakistan – see for instance this piece from Chris Kolenda for a list of suggestions. (9) However, Kolenda also points out the limitations of any pressure: “Pakistan seems resilient to the kinds of sanctions the United States has been willing to impose. Even under the aggressive U.S. sanctions regime
of the 1990s, Pakistan managed to support insurgencies
 in Afghanistan, Kashmir, and [Indian] Punjab, while developing a nuclear arsenal.”

The other factor which could change the balance of the war would be better-working Afghan ministries of defence (MoD) and interior (MoI). Corruption is endemic in the MoI and present, although more limited, in the MoD. As the next dispatch in this mini-series will outline, it includes crooked contracts, selling fuel and pocketing the salaries of ghost soldiers and police and, for parts of the MoI, involvement in racketeering and the drugs industry. It is difficult to imagine the ANSF doing much better on the battlefield, no matter how much training or advice they get, as long as many of the military leaders see their jobs as a means to make money. Nor can high morale be expected from those who are in the thick of it, facing the Taleban on the battlefield, if they believe their leaders are concerned mainly with filling their pockets.

This is a war, as Ghani himself pointed out in an interview with AAN in 2014 in which the elites do not suffer and certainly are not involved in the fighting, and economic motivations drive much of the recruitment to the lower ranks:

The cost of the war is being borne by the poor. Badakhshan, Takhar, Parwan and Nangrahar are paying the highest casualties of this war. So it is not a north and south issue… It is predominantly poor men who are finding outlet either in joining the national army or the national police or migrating illegally to neighbouring countries and abroad. We need to appreciate the cost of blood. We need to understand that there’s a cost of war. For our political-economic elite, the war was cost free because the massive international presence made it cost free. Now, with the BSA [the Bilateral Security Agreement NATO], it becomes our conflict. We’re the lead and [we have the] responsibility

Expecting soldiers and police to stand and fight – and die – in those circumstances­ will always be difficult, especially when they are fighting fellow Afghans.

The same accusation of using the war for financial gain could, of course, be made against the ‘Taleban elites’ who sit in Pakistan directing young men to fight, while, for example, making money out of the opium trade. There are some indications of unhappiness among Taleban commanders with their leadership on those grounds, but morale still appears higher among the insurgents. This may be partly a consequence of the many years when Karzai distanced the Afghan state from the conflict, even though Afghan forces were always involved in it. In doing so, he ceded the narrative space to the Taleban who have persistently tried to claim the moral and religious high ground.

Trump to make up his mind

It had been thought that President Trump would want to decide ‘what to do in Afghanistan’ ahead of a NATO heads of state meeting on 25 May 2017. This is looking less likely, particularly given recent distractions for him in Washington and the fact that he does not necessarily do what previous president have done, including sticking to expected time-tables and constraints. But however long Trump’s decision takes, his overall options are limited. They could be listed as four: deploy significant numbers of US troops again to try to break the deadlock; withdraw US forces and support; keep the troops there, with a small increase in numbers; or keep the troops there without such an increase.

The first option – a surge – has been tried and it failed. Some, apparently from within the DC establishment have suggested sending 50,000 more troops to Afghanistan, but it is difficult to imagine any appetite for this, in Washington or other troop contributing capitals, or indeed, in Afghanistan itself. Ghani has pointed out: “There is no global appetite, there is no Afghan appetite, for a resumption of that scale of presence.”

A second option for Trump would be withdrawing support to Kabul, with the US (and others) ‘cutting their losses and running’. He did suggest this in tweets before he became president:

Let’s get out of Afghanistan. Our troops are being killed by the Afghanis [sic] we train and we waste billions there. Nonsense! Rebuild the USA.

And:

It is time to get out of Afghanistan. We are building roads and schools for people that hate us. It is not in our national interests.

If the last two years are anything to go by, withdrawal of all international soldiers would lead to increased territorial losses for the government. A withdrawal of funding, however, would be catastrophic, given Kabul’s dependency on US money. The last time such funding ended, in 1992 when post-Soviet Russia stopped transferring money to the government of Dr Najibullah, the Afghan state collapsed, which triggered a particularly brutal civil war. In the 1990s, after such a collapse, it was possible for the world to forget about Afghanistan and its suffering. In 2017, should a similar scenario take place, the chaos and violence would not be confined to Afghanistan, given the attractions of the country to internationally-minded jihadists.

This is why withdrawing support to Kabul government is a ‘nuclear option’. It is also why, however unpleasant the US-Afghan relationship becomes – and it was very unpleasant in the later Karzai years – or how egregious elements of the state and Afghan elites are, it has been unthinkable for the US to walk away from Afghanistan and the state created by the 2001 intervention. All that means that, even for Trump, it is likely that only the two other two options will seem viable.

Between these two choices – keeping the number of troops the same, or increasing them a little – it appears that Nicholson has calculated that extra troops are needed and will be enough to act as ‘force multipliers’, enabling the ANSF to fight better and re-capture and hold territory, if there is also reform of the MoD and MoI. Whether any strategy will be enough to, as Nicholson puts it, break the stalemate or, possibly more accurately, reverse the government’s losses is another matter.

War, not peace

The Nicholson plan once again puts off efforts to find a negotiated end to the conflict – as happened in 2009 when Obama decided to order the surge (and when prospects of a peace process were far better). There are people with interesting ideas on how to hasten the search for peace: see this on “insurgent peace-making,” for example, how a “third-party actor” could facilitate a peace process and how a regional diplomatic strategy could be developed (here and here). However, there has been little of substance from either the US or Afghan government. (10)

The Nicholson plan may be a better option than either deploying large numbers of international soldiers to Afghanistan again, or withdrawing support. Yet after almost four decades of war in Afghanistan and 16 years of the present phase of the conflict, a plan which basically aims at maintaining the status quo of continuing conflict, and of not letting the other side win, is a distressing prospect. Moreover, even the modest aim of enabling the government to get more of the upper hand seems ambitious. It is difficult to see what elements of the proposals could actually break the stalemate: getting Pakistan to change its policy towards the Taleban and getting the leadership of the ANSF to reform its behaviour seem equally unlikely, going on past experience.

No-one in power has put any real effort into finding a negotiated end to the war, apart from Ashraf Ghani’s genuine but short-lived and probably ill-conceived attempt to get Pakistan to back peace talks with the Taleban (see AAN analysis here). This foundered on Islamabad’s unwillingness to cooperate. Prioritising peace would take more courage, determination and imagination than fighting the war, but for the moment, it is strategies for fighting which are under discussion. War, yet again, appears to be the default activity for Afghanistan.

Edited by Borhan Osman and Thomas Ruttig

 

(1) Obama said:

“I’ve made it clear that we’re open to cooperating with Afghans on two narrow missions after 2014: training Afghan forces and supporting counterterrorism operations against the remnants of al Qaeda. … At the beginning of 2015, we will have approximately 9,800 U.S. servicemembers in different parts of the country, together with our NATO allies and other partners. By the end of 2015, we will have reduced that presence by roughly half, and we will have consolidated our troops in Kabul and on Bagram Airfield. One year later, by the end of 2016, our military will draw down to a normal embassy presence in Kabul, with a security assistance component, just as we’ve done in Iraq.

 (2) After SIGAR published its assessment of the situation as of November 2016 (when it said the government controlled 83 and influenced 150 districts, the Taleban controlled nine districts and influenced 32, and 133 districts were “contested”), the Taleban issued their own assessment. On 26 March 2017, they claimed to fully control 34 districts, to contest 167 more, to maintain a significant presence in 52 districts, a minimal presence in a further six and no presence in 89.

(3) SIGAR quotes Resolute Support which assesses the districts’ status according to five indicators of stability: governance, security, infrastructure, economy, and communications. See the table on page 96 of SIGAR’s April 2016 Quarterly Report.

(4) From January to November 2016 (according to SIGAR quoting Afghan government figures), 6,785 ANSF members were killed and 11,777 wounded. In the last six months of 2016, seven US military personnel were killed and 43 wounded, a huge decrease, particularly from the surge years when the numbers of US troops killed each year were in the hundreds. UNAMA does not break down figures in terms of nationality, but the overwhelming majority of civilians killed (3498) and injured (7920) in 2016 were also Afghan. There are no good statistics for insurgent casualties.

(5) Annual funding for the ANSF is as follows: US, $4.5 billion a year, $1 billion from all other countries, half a billion dollars from Afghanistan. At the July 2016 NATO conference in Warsaw 30 countries agreed to extend their financial commitment to support the ANSF at near or current levels through to 2020.

(6) From President Ghani’s address to NATO Ambassadors: “We now own the war, and we are not asking for that to change. The transition to our control was carried out successfully. There should be no reversal. We do not want NATO troops returning to combat.”

(7) At his testimony, the following exchange took place:

General Nicholson: Mr. Chairman, I have adequate resourcing in my counterterrorism mission. In my train, 
advise, and assist mission, however, we have a shortfall of 
a few thousand, and this is in the NATO train, advise, 
assist mission. So this can come from the U.S. and its 
allies.

…

Senator Reed: At this juncture, you are operating at the corps level?

General Nicholson: That is correct, Senator.

Senator Reed: With some exceptions? Are there any exceptions?

General Nicholson: Senator, in the last summer, since we gained the new authorities in June, we began developing what we called expeditionary advising packages, which we would push down below the corps level. Now, this was something we put together based on the authorities and it proved quite successful last year. But we would like to be able to advise below the corps level. This is something that NATO has agreed to in our guidance. It is strictly a question of manning at this point.

Senator Reed: So that you would be able to, essentially, have more of these teams below the corps level, at the battalion level, but not down at the individual company platoon level certainly. 


General Nicholson: Sir, it would most likely be at the brigade level, but we think that would be adequate for what we need to do. We have identified the requirement and 
the desire to advise below the corps level. So these additional forces would enable us to thicken our advisory effort across the Afghan ministries and do more advising below the corps level.

(8) The surge, which was initiated in Obama’s first term in office, was aimed, in the words of the Associated Press at: “…beating back the Taliban to give the Afghan government and its security forces the time and space to take hold. The key goal was to ensure that the Taliban did not regain a foothold in the country that could allow it once again to become a safe haven for terror groups. And there was hope that Taliban members would be willing to come to the peace table.”

(9) Kolenda says “graduated penalties” against Pakistan (and others, as necessary) for “the use of or neglect towards militant groups that threaten its neighbors” could include “suspending major non-NATO ally status, designation as a state impeding counter-terrorism efforts, suspension of security assistance, targeted actions against specific individuals and organizations for supporting militant groups, discouraging future IMF bailouts, and designation as state sponsor of terrorism.” His proposals come very much in the context of a “focused engagement” towards all actors in Afghanistan and the region.

(10) This, for example, was how Ghani recently described prospects for peace talks, referring to the highly dysfunctional High Peace Council as the agent of any negotiations:

There are a lot of honest brokers, or attempted honest brokers, that want to bring peace. We are not closing the door. But when we get to formal open discussions, that’s when we have the breakthrough. And that’s our insistence. It’s not going to be under the table. It’s going to be through the Afghan Peace Council (a government panel tasked with negotiating an end to the conflict) [presumably the High Peace Council] and through a properly constituted delegation, along the lines that we did it in Murree [the Pakistani hill resort where an earlier round of peace talks were held].

In recent weeks, the Islamic State Khorasan Province (ISKP) has lost a significant part of its stronghold in Nangrahar as well as several senior commanders and its overall leader, Sheikh Abdul Hasib. Its losses have been mounting steadily since early April when American and Afghan special forces intensified their campaign against the group. This included dropping the largest, non-nuclear bomb in the US arsenal on an ISKP-held network of caves in Achin district on 13 April 2017. AAN’s Borhan Osman looks at the offensive in detail, including ISKP responses. He also assesses the US goal of ‘defeating’ ISKP this year and asks what defeat of such a group would look like.

 

The rolling back of ISKP in Nangrahar – a summary of events

ISKP’s control of territory in Nangrahar reached its peak in summer 2015 when it became the dominant insurgent group in eight of the province’s 22 districts. (For detail on why it was so successful in this province, see AAN reporting here and here.) ISKP had overrun large swathes in the districts which lie along the Spin Ghar mountain range to the south of the provincial capital, Jalalabad, mostly from the Taleban. Most of these districts are close to or on the border with Pakistan’s tribal agencies: to the south-east of Jalalabad, they are Achin, Kot, Nazyan and Bati Kot and to the south-west, Deh Bala (also called Haska Mena), Khogyani, Sherzad, Pachir wa Agam and Chaparhar, whose borders begin at the outskirts of Jalalabad city. ISKP never managed to capture any of the district centres, although it was twice close to overrunning the district centres of Achin and Deh Bala.

Since then, the Taleban have fought to take back territory and the group has also been pounded by US air strikes. ISKP territory had shrunk to four districts by the end of 2015, with territory mainly re-taken by the Taleban. ISKP then dug in through 2016 in all its remaining districts, that is, Achin, Kot and Nazyan in the south-eastern districts (Bati Kot had returned to Taleban control), as well as Deh Bala in the south-west. ISKP’s hold over these districts looked firm until mid-March, or the beginning of the Afghan spring 2017, when US and Afghan special forces stepped up their attacks against it.

In early April 2017, these combined forces launched a new campaign dubbed Operation Hamza, which, according to the US military, was targeted against ISKP not only in Nangrahar, but also in Kunar. In Kunar, the group has not yet established definitive territorial control, but it has actively recruited from members of militant groups there, including from the Afghan Taleban. Kunar has also served as a place of retreat for ISKP members when pressed in southern Nangrahar.

Nevertheless, the group is still most entrenched in southern Nangrahar, and particularly strongly in Achin and Deh Bala districts. It has turned Achin’s Mamand Valley into its command base with the adjacent Pekha Valley, to the east of Achin district centre, next in strategic value. Both these valleys border Pakistan’s Khyber Agency, from where, according to numerous local residents AAN has spoken to, the group receives weapons and ammunition which arrive on the backs of mules.

US-Afghan forces take the battle to ISKP’s heartland

The offensive by US and Afghan special forces, which has been taking place since mid-March 2017, and especially since the launch of Operation Hamza in early April, has focused on these two valleys and the surrounding areas. Ground offensives and night raids have been coupled with heavy air strikes by the US military. Missiles launched from the US military base at Jalalabad airfield have also hit targets in and around the two valleys. These precision-guided munitions, described by locals as ‘cruise missiles’ and often fired in batches of a few dozens, have become a frequently used element of the campaign. The offensive has had a tangible impact on ISKP, appearing to have severely weakened the group in its stronghold.

What has added to the pressure on ISKP’s Mamand stronghold is not only the penetration of US and Afghan forces into Pekha to the east, but also the group’s loss of Kot district to the west. Kot has been almost entirely cleared of ISKP as a result of this year’s campaign. The loss of Kot has, for the first time in several years, confined ISKP to three districts. Afghan forces, mostly local militias made up of the so-called uprising forces and Afghan Local Police, have established bases and checkposts in the newly captured territory to consolidate the government’s hold there. Most of the southern and eastern parts of the district, which have long been under the control of ISKP, are deserted after most of the local population fled and settled around Jalalabad. The displacement had been happening since 2015, but, according to residents of the district, sharply increased when the US-Afghan operations intensified in mid-March.

By losing Kot district, ISKP has not only seen its territory shrink, but also suffered a huge logistical setback: an important supply route which connected its eastern districts with its western ones has been cut. Kot was the main way for it to get weapons from Achin and Nazyan, on the border, to Deh Bala and further westward, including to Chaparhar on the outskirts of Jalalabad. ISKP, according to local residents in all these districts, would re-load ammunition, which had arrived by mule from Khyber agency, in Pakistan, to Achin and Nazyan, onto trucks and other vehicles to take it to Deh Bala. Now, with Afghan forces deployed in Kot, there is no longer a vehicle route from the Achin-Nazyan border available for ISKP to supply its fighters in Deh Bala.

While Kot might have been relatively easy for Afghan and US forces to capture, the two valleys, Mamand and Pekha, in neighbouring Achin district, have proved the most difficult. ISKP has been able to entrench itself deep into these valleys due both to the geography – the hard, mountainous terrain – and to the local society, which has been weakened and fractured (see this AAN analysis). ISKP fighters have occupied villages in the two valleys, often after forcing local people out. With the onset of Operation Hamza, the US and Afghan forces moved to capture the two valleys through ground offensives supported by air strikes. Getting into the Mamand Valley required passing through a complex network of caves that was situated at the valley entrance, in the Asadkhel area. The caves had been formed over decades by miners digging out slate, and ISKP was using them as bunkers; the caves protected the fighters from air strikes, but also acted as staging points from which to attack the advancing enemy.

According to Mamandis who spoke to AAN, getting across the Asadkhel area was hard for the US and Afghan forces as ISKP fighters positioned within the bomb-proof caves would come out in unexpected places to ambush the advancing forces. The US military bombed the caves repeatedly in the first week of Operation Hamza, but the munitions could not get through the rock and earth to destroy the cave complex below. On 13 April 2017, the US decided to loose a Massive Ordnance Air Blast (MOAB), nick-named ‘the mother of all bombs’, on the cave complex. This paved the way for the American and Afghan forces to get into the valley to launch a full offensive against ISKP.

The mother of all bombs and the death of the ISKP amir

The US and Afghan forces had managed to enter the other strategic valley, Pekha, during the week before the MOAB was dropped. The destruction of the Asadkhel caves also then allowed US-Afghan forces to enter Mamand, which is the more important stronghold for ISKP.

The US-Afghan forces’ progress into the two valleys has been described by local residents (who had left their homes, but still remain abreast of the situation on the ground through speaking to those few people still left in or around the area) as “snail-paced, but consistent.” They described how it often took the US and Afghan special forces two or three days to capture an ISKP village due to the severity of the fighting. In some parts of the valleys, ISKP has mined public routes and fields, which is further slowing down the progress of Afghan and US forces. As of mid-May 2017, more than half of the two valleys were still under the control of ISKP, but Afghan and US forces were continuing to steadily to advance.

As well as losing territory, ISKP has also been losing leaders and fighters. Since mid-March 2017, four senior commanders have been killed, including the latest amir (he took over in early August 2016), Sheikh Abdul Hasib, on 27 April. Between mid-March and mid-May, it also lost, according to rough estimates by local residents in whose homes the militants had been staying, about 300 members. The residents who spoke to AAN have long resettled in Jalalabad, but remain in touch with people still left in these areas, or by the occasional visits of relatives. They knew precisely, by name and location, the ISKP commanders who lived in their homes and, more broadly, in their villages. Although, sometimes they just repeated rumours that could not be corroborated after cross-checking and further questioning, they are still the most neutral and possibly best informed sources on developments in their areas. One caveat: their account of the ISKP death toll needs to be taken with a pinch of salt unless those who have been killed come from their area who they know personally or by reputation. It is less easy to ascertain the deaths of foreign militants because of the absence of nuance and details which help reassure a researcher that the account is true. These might be funerals held, graves dug or people knowing relatives in what is a well-connected society.

One notable batch of ISKP casualties took place during the operation that targeted Abdul Hasib on 27 April. Residents described that operation as lengthy, intensive and complex. It lasted several hours, with heavy bombing and the parachuting of US special forces and Afghan commandos into the heart of ISKP territory to conduct raids. The operation involved almost an entire night of close-range fighting in several villages. Local residents put the number of those killed in this operation at over 30; they spoke of the fighting men and their families together, although without knowing the details of children and women killed. They had not noticed the death of Abdul Hasib, most likely because he was not a known or prominent figure, locally. Habib came from Logar and therefore had no interaction with the locals in Nangarhar before his joining to ISKP.

The news of the ISKP amir’s death was made public by the US military on 7 May 2017. Another commander killed in the same operation was commander from Pakistan’s Orakzai tribal agency, who was known to the locals only by his nom de guerre, Dahshatgar (meaning ‘terrorist’, in Urdu). ISKP’s FM radio station, Khilafat Ghag, on 28 April reported that about 100 people had been killed and wounded as a result of the air strikes of 27 April. The group’s broadcasters described the victims as members of muhajir families. Muhajir means ‘migrant’, but is used here as a religious term for those leaving their homes for the sake of jihad or to escape repression, from which it can be understood that the radio station was referring to the families of the foreign and/or Pakistani militants who had settled in the homes of the local residents. The radio station aired interviews with those it said were relatives of the victims, including children, who spoke of losing their mothers and younger brothers and sisters in the air strikes.

The death of Abdul Hasib dealt a significant blow to ISKP as the group had already been struggling to find replacement leaders after a succession of them had been killed (more detail on which will come in a subsequent dispatch). The ascension of Abdul Hasib, a little-known figure, to the overall leadership in early August 2016 was itself witness to the fact that all the prominent commanders of the group, indeed the entire first-tier leadership, had already been killed. They included about a dozen senior commanders and leaders. While the death of Hasib was important in terms of its impact on morale and the symbolic loss of an amir, he had not been a compelling or impressive leader. He was more a Salafi-jihadist ideologue who inspired fighters with his high-flying speeches and visions of the future. He had not possessed particularly remarkable military skills. Now, as Abdul Hasib is gone, the discussion for his succession seems to have begun with the Aslam Faruqi, a nom de guerre for a mid-level commander from Orakzai agency, tipped as the most likely successor.

Pressed in the east, ISKP spreads westward

At the same time as coming under increased pressure in Achin and Kot, however, ISKP has made considerable advances into another district, Chaparhar, which is adjacent to Jalalabad and has long been contested. The group captured almost half of Chaparhar in a sudden and coordinated attack against the Taleban on 2 and 3 April 2017. ISKP claimed to have killed 30 Taleban in the fighting, although Taleban sources speaking to AAN only admitted to losing a dozen fighters. With the district centre having always remained under the government’s control, the rest of the district has changed hands between ISKP and Taleban several times over the past two years. It had the highest density of pro-ISKP Salafi fighters which made it difficult for the Taleban to establish solid control, as reported earlier by AAN. It was also one of the districts that saw the earliest defections of Taleban fighters to ISKP, in late 2014 and early 2015.

In the meantime, ISKP’s control over most of the tiny Nazyan district, that neighbours both Kot and Achin, as well as over Deh Bala district further southwest, has remained intact. ISKP is largely in control of the countryside in both the districts with the government confined mainly to the district centres. In Nazyan, the majority of the militants are members of a smaller and older group, Lashkar-e Islam, which has its origins in Pakistan’s Khyber Agency just across the border from Nazyan, but has been staying in Nangarhar for several years. The group, ideologically similar to the Pakistani Taleban, is led by Mangal Bagh, who has been an ally of ISKP since the latter’s emergence (read more about Lashkar-e Islam here). His group seems to have been tasked with keeping control of Nazyan, ruling there as a proxy of ISKP, thus making the district ISKP territory by extension. In Deh Bala, where ISKP is mainly made up of local militants, most of whom are former members of the Afghan Taleban, the group’s grip is also still tight. In both these districts, occasional US air strikes have targeted the group’s members, but they have not yet had to withstand a concerted operation against them. This may be to come.

‘Defeating ISKP’ in 2017: an achievable goal for the Americans?

The launching of Operation Hamza came in the wake of the US military announcing  its goal of “eliminating” ISKP by the end of 2017. The commander of US forces in Afghanistan, General John Nicholson,  has since repeatedly vowed to “defeat” ISKP in 2017.

It is the intent of defeating ISKP within a specific time-frame that makes Operation Hamza distinct from previous, similar operations conducted against ISKP. American and Afghan forces have, since the summer of 2015, undertaken several concentrated offensives against ISKP with ground and air components, although possibly less intense than the current one. In almost all these operations, ISKP lost parts of its turf and a number of its fighters, but the common pattern that emerged in the aftermath of these operations was not long-lasting loss for the group; rather, it demonstrated its resilience. ISKP usually bounced back after the campaigns subsided. It would recapture territory as the Afghan forces, often the Afghan National Police and ‘uprising militias’, that were supposed to hold the territory would retreat in the face of its counter-offensive. This has been the case in Achin, Kot and Deh Bala districts. The only areas where ISKP could not do this has been when it lost land to the Taleban, in the districts of Bati Kot, Khogyani and Pachir wa Agam.

With the public avowal by the US military that it will eliminate or defeat ISKP through Operation Hamza, it remains to be seen what the pattern will be this time – and also what the Americans mean by ‘defeat’.

Supposing the advances of US and Afghan forces continue and Operation Hamza targets ISKP in the whole of Nangrahar, dislodging the group from all these areas would take a long time. Moreover, if the Americans want to deny ISKP the opportunity to come back to areas it once ruled, the ANSF must be able to hold territory. If ISKP could be completely stripped of a physical foothold, there would be huge consequences, both to its morale and capabilities. It has been the control of territory that has distinguished the ISKP in Nangrahar from most other Islamic State allied groups in Afghanistan

However, denying ISKP the space to rule would not necessarily amount to ‘defeat’, as long as it has at least a few hundred members and enjoys some measure of continuing appeal. Dismantling ISKP from its physical base could just force it to change tactics, making it a clandestine, hit-and-run group which, for example, could shift its focus even more towards urban areas. If it could transform itself into a clandestine network without a physical base where it could be bombed, it would become far less easy to deal with.

If defeating ISKP means not just taking its territory, but also killing a large number of its members, with the aim of eliminating or at least minimising its ability to launch attacks in the Afghanistan/Pakistan region, then the goal might also be elusive. The first tier leadership of the group has already been eliminated and, according to the US military’s estimates), 75 per cent of the group’s fighters have also been killed. It has nonetheless been able to launch two major assaults in Kabul since March. One of the attacks claimed by the group was the massive and coordinated assault by several suicide bombers against the military hospital in the highly fortified Wazir Akbar Khan neighbourhood on 8 March 2017, which killed about 50 people. The other attack took place in an even more secure and important area in a neighbourhood close to the US embassy, the defence ministry and the presidential palace in Shashdarak on 12 April 2017; this killed eight Afghan civilians and wounded two US soldiers (a media report here). ISKP is thus apparently still able to carry out attacks in urban centres.

In addition to the Kabul attacks mentioned earlier, the group has carried out two attacks in Herat and Jalalabad more recently. In Herat, a bomb attached to a motorcycle exploded in an area predominantly inhabited by Shias on 12 May 2017. The explosion near a bakery killed six people and ISKP claimed responsibility for it, saying the target was the Shia community. (This incident was not widely reported in the media and some media outlets reported the incident as a gas cylinder exploding.) In Jalalabad, ISKP suicide bombers attacked the provincial branch of the state radio and television office on 17 May. Six people were killed in a three-hour gunfight that ensued after the attackers stormed the building. ISKP released details of only two attackers, but provincial officials said the attack was carried out by four people.

In a nutshell, the ongoing US-Afghan operation that has cost ISKP many members, most of its leadership and a great deal of territory, has put the group under significant strain. It will be difficult, this time, for it to recover its former strength any time soon. However, dismantling the group in a way that makes it unable to launch attacks or impossible for it to re-emerge is not so assured. ISKP may well continue to recruit fighters, step up its appeal and propaganda efforts, launch occasional attacks on urban centres and continue to be a particularly nasty, albeit still marginal, insurgent actor.

Edited by Kate Clark and Thomas Ruttig

While hundreds of thousands of Afghans sought protection in Europe throughout 2015/16, an increasing number have been returning to Afghanistan, both voluntarily and involuntarily. The number of voluntary returnees from Europe picked up significantly throughout 2016, with additional returns in the first four months of 2017, reaching a total figure of over 8,000. By contrast, the number of deportations has been significantly lower, at only around 350 over the same period. AAN’s Jelena Bjelica and Thomas Ruttig examine the trends, policies and practices relevant to those who have returned. They found that services available to those returning – in both categories – are patchy.

The research on Afghan migration to Europe is supported by a grant from the Open Society Foundations.

What are the trends and figures for returns?

Over 250,000 Afghans left Afghanistan in 2015/16 (see previous AAN reporting here) and, along with refugees from Syria, Iraq and other countries, travelled via the Balkan route – through Greece, the Former Yugoslav Republic of Macedonia and Serbia, towards Europe (see previous AAN reporting here). While reaching Europe has become increasingly difficult (outward migration from Afghanistan is back to pre-2015 levels) and tens of thousands of people still stuck in Greece, Bulgaria and Serbia, there is also a counter-trend: since 2016, the number of Afghans returning to their country has been on the increase. These returns include both voluntary and forced returns and refugees who left Afghanistan in 2015/16 and much earlier.  

These returns have been facilitated by the Joint Way Forward (JWF) umbrella agreement between Afghanistan and the European Union as well as the bilateral repatriation agreements between Afghanistan and Germany, Sweden and Finland. All agreements were signed in October 2016. Afghanistan also has agreements with other countries, to which UNHCR is a party in certain cases. (1) While these agreements enable host countries to repatriate rejected asylum seekers against their will, the signatories expressed their intention to prioritise voluntary returns. In fact, the threat of deportation is also a means to encouraging the target group to opt for a voluntary return (for example, see AAN’s case study on Germany here).

(1) Voluntary returns

In 2016, IOM assisted 6,864 individuals to return to Afghanistan through its Afghanistan Voluntary Repatriation (AVR) programme. Between January and September 2016, IOM recorded approximately 200 returns a week. After September 2016, the agency noted a slowdown in returns, to less than half of previous figures, between 82 and 100 returns a week. In 2015, only 1,419 individuals had used this option.

The highest number of voluntary returns in 2016 were recorded from Germany (3,159), Greece (1,257) and Turkey (577). (2) Most of the returnees were young men – 78 percent or 5,382 individuals – with the biggest group, 2,781 returnees between 19 to 26 years of age and 2,101 children and teenagers of up to 18 years. A further 1,982 were 27 or older. Only 1,482 of the voluntary returnees were women. Among the total figure, IOM registered 733 families but did not state how many people were in each of these families.

Herat, with 391 people, was the main destination for voluntary returnees in 2016, of those choosing to receive onward transportation support included in the assistance provided by IOM. This was followed by Balkh (187), Kandahar (66), Ghazni (58) and Nangrahar (53). The second largest number, 201 individuals, opted to remain in Kabul. Here, they received money for taxi fares to different neighbourhoods throughout the city. According to IOM, in 2015 most of the returnees had indicated that Nangrahar was their final destination. Based on anecdotal evidence collected by IOM, most of those who returned voluntarily in 2016 had left Afghanistan in 2015.

By the end of April 2017, IOM had assisted 1,322 voluntary returnees from 17 countries, among them ten EU members with 1,067 cases through its AVR programme. Additionally, IOM assisted eight voluntary returnees (six from Austria and two from Sweden) through a separate project (Post-Arrival and Reintegration Assistance, PARA, see here) (3) This equates to around 80 voluntary Afghan returnees on average per week in the first four months of 2017.

Most returnees seem to return directly to their families or other destinations they trust. Few, as will be discussed later, opt for the MoRR/IOM shelter at the Jangalak reception centre in the west of the city.

(2) Deportations

The Joint Way Forward (JWF) and the three new bilateral agreements (unlike the older ones) allow host countries to operate non-scheduled flights to Afghanistan in order to repatriate rejected asylum seekers. The JWF operational plan – an unpublicised annex to the umbrella agreement – foresees a maximum of 10,000 returns a year. It does not specify whether the total figure refers to voluntary or forced returns, however it is AAN’s understanding that the number includes both categories.

The document also states that there cannot be more than two non-scheduled flights a week, ie a maximum of 100 forced returnees a week (or 400 a month, which would mean a maximum of 5,000 deportees a year). This calculation indicates that an estimated 5,000 deportees and 5,000 voluntary returnees are expected a year. Nevertheless, given the high number of voluntary returns in 2016 and in the first four months of 2017, as well as the relatively low number of deportations so far (figures below), it can be expected that there will be more than 5,000 voluntary returnees this year.

According to IOM, between October 2016 and April 2017, 12 planes with a total of 176 Afghan deportees from Europe landed in Kabul (for dates and a breakdown per country, see table below). (4) The highest number of deportations on the non-scheduled flights in a single month was carried out in December 2016, when three charter flights landed in Kabul, bringing in a total 50 people, and in March 2017 when four charter flights landed in Kabul, bringing in a total of 56 people.

Arrival Date Country # of Returnees 1 13-Dec-16 SWEDEN 13 2 15-Dec-16 GERMANY 34 3 28-Dec-16 FINLAND 3 4 24-Jan-17 GERMANY 25 5 23-Feb-17 GERMANY 18 6 25-Feb-17 FINLAND 3 7 1-Mar-17 DENMARK 12 8 28-Mar-17 GERMANY 15 9 29-Mar-17 AUSTRIA 19 10 29-Mar-17 SWEDEN 10 11 4-Apr-17 FINLAND 10 12 25-Apr-17 GERMANY 14 Total number of deportees during the period 13 Dec 2016 to 1 May 2017 176

Source: IOM figures 

In addition to those returned on chartered flights from European countries under the auspices of the Joint Way Forward, Afghans are also being deported on commercial flights, and non-EU countries are deporting Afghans based on their own agreements with Afghanistan, as is the case with Australia. For example, during the first four months of 2017, IOM assisted 177 forced returnees through its Post-Arrival and Reintegration Assistance (PARA) project (more on this below). This included returnees from European countries (Denmark, Finland, Germany, Sweden and the UK), and from Australia, which has had an agreement in place with Afghanistan since 2003. Of those assisted, 126 have been returned on chartered flights and 51 on commercial flights. The highest number of forced returnees during the first four months of 2017 (all on charter flights) was from Germany – 72 individuals, followed by the UK, which deported 43 individuals to Afghanistan (the UK does all its deportations on commercial flights.)

Munich to Kabul: Charter flight with Afghan deportees

On 23 February 2017, AAN had the opportunity to be at the airport when a charter flight from Munich – the third German one of five so far – landed at Hamed Karzai International Airport in Kabul. It was operated by Italy-based holiday flyer Air Meridiana, as German carriers had refused the contract, fearing loss of image. On the flight were 18 Afghan men whose asylum applications had been rejected by the German government, aged between 19 and 53 years. Originally, they came from ten different provinces, Balkh, Kabul and Herat as well as from Kandahar, Khost, Maidan-Wardak, Uruzgan, Kunduz, Paktia and Nangrahar. Only the first three provinces are considered safe (in part) for deportations by the German government, which has been the cause of a heated domestic policy debate. (5) There were also almost 60 German policemen on board the plane (three policemen per deportee). Returnees interviewed by AAN claimed their “personal” policemen threatened them with being shackled if they “misbehaved”, so they did not even dare to speak with their fellow Afghans on board.

The final list of those on the plane was only handed over to the Afghan authorities by a representative of the German embassy upon the plane’s arrival. Before it arrived, the Afghan authorities had a list of 88 Afghan names, apparently a ‘pool’ of Afghans earmarked for deportation. While the German government, for domestic consumption, claims that “many” of the deportees were criminal offenders (see a late April 2017 interview by foreign minister Sigmar Gabriel here), it also admitted that it does not inform the Afghan authorities about this, “for reasons of data protection,” as it wrote in an answer to an official parliamentary query dated 20 April 2017. This has been confirmed by a number of Afghan officials present on 23 February 2017, leading to complaints on the German side.

As the steady drop in the number of passengers on these five flights demonstrate, the German authorities appear to be struggling to fill the quota agreed on with the Afghan government of 50 deportees per flight. Lawyers and pro-refugee groups regularly manage to acquire last-minute halts to deportation for Afghan clients from German courts.

General Al-Haj Muhammad Asef Jabbarkhel, the paunchy airport police commander greeted the arrivals with “I do not welcome you as a policeman, but as a fellow-Afghan,” in an obvious attempt to cheer up the 18 men. The general asked his assistants to bring “water, tea and biscuits” and told the new arrivals that Afghan authorities would take care of their initial accommodation. He said that they were back on their home country’s “holy ground” and managed to entice the men into joining him in a joint prayer for peace.

Following this, all deportees were registered in the MoRR office in the airport’s arrival lounge that opened just two days prior to the flight’s arrival. Other government representatives included officials from the foreign ministry and the Ministry of Interior’s Criminal Investigation Department. Representatives of the UN-related International Organisation for Migration (IOM) and German-funded International Psycho-Social Organisation (IPSO) were also present at the arrival lounge, situated in the area before passport control. IOM had a doctor present to provide immediate medical treatment, if necessary. In that case, one older and obviously sick deportee (he was shaking and had to be helped out of the shuttle bus by two assistants), was immediately led into a separate room for medical care.

Those deportees who expressed a wish to travel on to home provinces or to relatives outside Kabul received travel money from IOM. Some of the 18, however, left the airport without bothering to speak to any of the organisations present. Eight, with no relatives in either Kabul or elsewhere in the country (most of them had lived in Iran for many years prior to their travel to Germany), took up the offer by IOM and MoRR for temporary accommodation in the Jangalak “reception centre” funded and managed by IOM (more on Jangalak below.) AAN spoke to some of the Afghan journalists present who had also been there when earlier flights had landed, and they noted that this time there were no relatives waiting.

One of the deportees that AAN spoke to was Gul Sayed Hussain, a 23-year old from Kunduz province. He said that he could not tell his family that he had been deported back to Afghanistan. “It is embarrassing,” he said. Gul Sayed told AAN he had been in Frankfurt since 2011 and had left Afghanistan when he was 17-year old boy. He said he had travelled via Pakistan, Iran, Turkey, Greece and Italy to Germany, which was his final destination. He learned German and finished school in Darmstadt. In 2012 he found a job as a cook, and “fell in love with cooking”, he emphasised. At the time he was deported, he had been working in a restaurant of a large hotel chain. Gul Sayyed, who had been a bread-winner for his big family in Afghanistan, consisting of 14 sisters and five brothers, does not see his future in Afghanistan. He said he was now thinking of going to Dubai and trying his luck with restaurants there. He was going to first spend some time with his sister in Kabul, and figure out what story to tell his father back in Kunduz province.

There was another cook among the 18 deportees on this flight, a young man from Nangrahar who did not want to have his name published. After his five year stay in Germany, one could barely make out any accent in his impeccable German (with only possibly a hint of accent from the Baden area, where he had worked in a high-class bar and restaurant and, where, he insisted, he paid his taxes.) His colleagues had tried to keep him in the country, he told AAN, and ended his story by just shaking his head and with tears in his eyes.

The Afghan Government’s Returnee Policy and Coordination

The Afghan National Unity Government established the High Commission for Migration in April 2015, “with a view to formulate [sic] policies and initiate [sic] cooperation to re-integrate and accommodate internally displaced people and those refugees returning to [the] homeland on their own will;” the document fails to refer to deportees. But this commission seemed to be overwhelmed primarily by the massive number of returns from Pakistan and Iran. In November 2016, a more concrete step was taken, ie a decision had been reached between the international community (led by the UN Deputy Special Representative/Resident and Humanitarian Coordinator for Afghanistan) and the Afghan Government that, in coordination with the Office of the Afghan Chief Executive, a forum should be established aiming to coordinate national and international efforts regarding immediate response and long-term solutions to the crisis of returnees and internally displaced persons (IDPs). (See also previous AAN reporting on the mass return of Afghan refugees from Pakistan in 2016 here, and on the increase in the number of IDPs in Afghanistan in 2016, here.) In late November 2016, it was further decided that the Displacement and Returnees Executive Committee (DiREC) between the Afghan government and the international community should be established and tasked to define a management strategy for coordinating the humanitarian and development programmes; assign responsibilities for updating policy and government response as new information arrives; and define the reporting responsibilities of working groups.

Under the auspices of the DiREC, which is co-chaired by Sayed Hussain Alemi Balkhi, the Minister of Refugees and Repatriation, as well as Mustafa Mastoor, the Special Representative and Senior Adviser of the Chief Executive, and Mark Bodwen, the UN Deputy Special Representative/Resident and Humanitarian Coordinator for Afghanistan (Toby Lanzer replaced Bodwen in March 2017 as resident and humanitarian coordinator), a new policy framework for returnees and IDPs was developed. In force since December 2016, this policy framework, seen by AAN, deals with returnees from the region (Iran and Pakistan) as well as returnees from Europe and IDPs. It foresees a multidimensional approach to their reintegration. It calls for, among other things, individual financial support to be followed up by a “whole of community” approach “wherever possible,” meaning that the support will be handed out not only to individuals but also to the communities in which they settle. The policy views “land allocation as critical to the success of durable solutions.” It foresees changes in legislation and interventions at the general (ie state-level) as crucial. One envisaged change in legislation, on land distribution, is particularly essential as the current law, the so-called Presidential Decree 104 from 2005, has been proven vulnerable to corruption and mismanagement (see previous AAN reporting here).

Although it is not known how many returnees from Europe have received land from the government, and if so under which conditions, this could be an incentive for people who left Afghanistan a long time ago and who are now at the mercy of European governments’ decisions about deportations. At the same time, as AAN’s dispatch from Nangrahar showed, early hopes have proven futile to many returnees, and the hold of quasi-immune power holders to grabbed state land – which is supposed to be used for resettlement – is widely known among Afghans.

In practice, what assistance do returnees and deportees currently receive?

There are several types of assistance that those returning, both forcibly and voluntarily, can pursue. The assistance comes from the Afghan government, the countries which sent the returnees back, international organisations such as IOM and local non-governmental organisation like IPSO and the Afghanistan Migrants Advice & Support Organisation (AMASO). There seem to be no established coordination mechanisms to ensure that all returnees receive the support they need or that they are treated somewhat equally, that some returnees do not receive more support than they are entitled to or to ensure that there is comprehensive monitoring. The German government, for example, argues that their responsibility for returnees ends when they are handed over to the Afghan authorities upon arrival.

Here below, an overview of available assistance:

• Afghan Government assistance

The government’s current support to returnees from Europe is centred around legal aid, job placement (which is done through the Ministry for Labour and Social Affairs/MoLSA), land and shelter, Murtaza Rasuli, a director of an MoRR department that works with returnees from Europe told AAN. Nevertheless, AAN was told by several returnees that word of mouth among them was that few had actually received any other form of assistance, except the two-week provision of shelter from the government.

The Afghan parliament summoned MoRR, Ministry of Foreign Affairs and MoLSA representatives on 3 May 2017 for an interpellation session regarding, among other things, problems faced by repatriates and returnees following their arrival back in country. The questions posed by the MPs, however, focussed mainly on the largest group, the returnees from neighbouring Iran and Pakistan and those Afghan refugees still living there as well as in in Saudi Arabia, and government preparations and plans for returning refugees in general. The small group of returnees – both volunteers and deportees – seems to figure only on the side-lines.

• Financial assistance

For those returning voluntarily, financial assistance is available. The amount, however, depends on which country is returning them. It ranges from between 700 and 4,000 USD. Sweden, for example, gives a cash payment per person of 30,000 Swedish Kronas (approximately 3,150 Euros) and Belgium provides 500 Euros. Germany gives 700 Euros in cash in Germany at the departure airport and reintegration assistance in the range of between 800 to 2,500 Euros through IOM on a case-to-case basis following their arrival. The latter assistance is not cash-in-hands assistance, but a grant that could be used for education, vocational training, salary subsidy, micro business plans, etc.

[Update on 20 May 2017:] Since 1 February 2017, Germany offers an additional package, called Starthilfe Plus. It provides 1,200 Euros in cash assistance for voluntary returnees (over 12 years of age) if they decide to return to their country of origin before there is a final decision about their asylum request (it involves withdrawing this request and does not apply for all countries of origin). 800 Euros are offered to  asylum seeker who have been rejected but refrain from appealing against the decision. For 2017, a total of 40 million Euros has been allocated for the “help for a start” programme.

• Reintegration assistance

Through the European Reintegration Network Specific Action Programme for Afghanistan (see here), IOM provides post-arrival and reintegration assistance to both forcibly and voluntarily returned Afghan nationals from 18 countries: Australia, Austria, Belgium, Denmark, Finland, France, Germany, Greece, Italy, Luxembourg, Malta, Netherlands, Norway, Romania, Spain, Sweden, Switzerland, and the United Kingdom. (6) The planes for deportations, however, are paid for by the EU’s Frontex border management agency. (7) Additionally, in early March 2017, the IOM signed an agreement with the EU Commissions’ Directorate-General for International Cooperation and Development (DG DEVCO), worth 18 million Euros for a four-year term that will provide reintegration support to returnees and host communities across Afghanistan (see here). This programme will offer, in addition to individual assistance, community-based initiatives, which are meant to ease and facilitate the reintegration of individuals.

In 2016, only 1,094 of over 6,800 returnees received post-arrival reintegration assistance, eligibility to which is essentially decided by sending countries on an individual basis. This obviously means that even not all voluntary returnees receive financial support following their return to Afghanistan.

The majority of those 1,094 who were eligible for post-arrival assistance in 2016 chose to start a small business – 874 individuals. With 131 persons, a significantly lower number opted for financial support for housing; 76 received household items. Eight opted for an assisted job placement, two for house renovation, two for education or training assistance and only one for medical reimbursement.

According to Masood Ahmadi, an IOM reintegration programme manager, “a lot of people do not ask for a reintegration package, even if they are eligible. They simply do not come back to IOM to claim it.” This is mainly due to technical and bureaucratic hurdles, although eligible returnees are informed about reintegration packages, both in the sending country and upon arrival. Ahmadi adds that “Many do not have a [local] phone number when they come back; and they can’t follow up. We were thinking of distributing SIM cards, but that was not possible due to legal issues. We, however, do ask them to get in contact with the local IOM office in their province or main office in Kabul,” he said, underlining that “returnees are essentially informed about reintegration packages that they are eligible to receive, both in Kabul and in the sending countries.” IOM staff and migration authorities in sending and receiving countries inform voluntary returnees about the entitlements they are eligible to – but in practice, as NGO research in Germany showed (see this previous AAN dispatch), this often seems to be presented by authorities as a way to facilitate more ‘voluntary’ returns.   

IOM post-arrival humanitarian assistance to forced returnees is a basic package, which includes a transportation fee from the airport to the person’s residence and temporary accommodation if required. German authorities, for example, provide a small amount of pocket money to deportees. Some are also eligible for reintegration assistance similar to the one for those returning voluntarily. According to Laurence Hart, the head of IOM Afghanistan, in most cases this is only “a parachute package,” an immediate form of post-arrival survival help, rather than sustainable and long-term assistance. As AAN interviews have shown, this is not sufficient to allay the considerable fears deportees have regarding their future.

(3) Temporary housing

Most of the returnees and deportees return directly to their families or communities. However, for those who cannot do this, the government and IOM provide temporary accommodation. The Jangalak reception centre for those with that need is located within the Ministry of Refugees and Repatriation’s compound in the former Jangalak factory, which was once one of the country’s biggest but was destroyed during the war because it was Soviet-built. The 24-room (with two to three beds each) reception centre is open for both voluntary and forced returnees for a maximum of two weeks. A 12-member staff team headed by a former Hezb-e Islami commander looks after them. Each room is equipped with a fridge, TV, air conditioner and wardrobe. In 2016, only 43 individuals (including both voluntary and forced returnees) opted to stay in the centre. On average they stayed there for seven nights, meaning that in 2016, the reception centre had been occupied for a total of 149 nights, IOM told AAN.  

AAN visited the Jangalak reception centre in late February 2017, several days after the third non-scheduled flight from Germany landed in Kabul. At the time, there were ten men in the centre, eight from the German flight, one who was returned by Finland and a Pakistani from the UK, who, as he admitted, had initially had himself registered there as an ‘Afghan’. (It was not clear whether he admitted Pakistani citizenship in the UK already or only after having been deported to Afghanistan.)

Essa, a 28-year old man from Ghazni province and one of the deportees from Germany, opted for Jangalak because he had spent almost ten years living in Germany. Before he had grown up in Iran where his parents had moved in the mid-1990s and where he finished high school. As a result, he had no family in the country to return to. Essa had never even been in Kabul before. In Germany, he had applied for asylum but had been rejected. He managed to get a work permit anyway but following a change of policy, he lost it in 2014 after working for a company producing spare parts for cars in Stuttgart for four years.  He told AAN, “I am scared here, there are people with guns everywhere.” The last time AAN saw him in mid-March 2017, he said that he was planning to go back to Iran to reunite with his family. He was waiting for the money that his family promised to send him to pay for the journey. In contrast to Germany, Switzerland has a policy in place that does not send back Afghans to Afghanistan who have spent most of their time in Iran.

The Afghanistan Migrants Advice and Support Organisation, run by Abdul Ghafoor, a returnee from Norway himself, aids returnees mainly from Nordic countries. The organisation opened a safe house in January 2017, offering accommodation to those who have nowhere to go following the two weeks – the maximum period allowed – in the government-run shelter. This was the case with a deportee from Germany, who arrived on 24 January 2017 and who was injured in the bomb blast near the Supreme Court on 7 February 2017 (see here) Since his injury, he has been accommodated in the AMASO safe house, financed by private donations from Europe.

(4) Psycho-social assistance

The German government has contracted IPSO, a humanitarian organisation of German-origin based in Kabul, to offer psycho-social help to those deported from Germany. The organisation assists 400 to 500 individuals a day, but this number includes also, and mainly, local people that need psycho-social help, as Inge Missmahl, founder and director of IPSO told AAN. The organisation organises self-awareness groups, Afghan-life skills training, one-to-one counselling, painting and handcraft skills.

“We talk to them about why they decided to leave, why they were not accepted, what experiences they had en route, why they came back,” Missmahl told AAN. She pointed out that those Afghans who have been returned, but left a long time ago have some very different experiences and needs to those who left in 2015 and only returned recently. According to her, those who left years ago have accepted and adjusted to a European value system, which is not the case for those who left in 2015. Nevertheless, both groups experience stigma and feel a deep humiliation once they have been deported back. This requires both mitigation and counselling that Missmahl’s organisation provides. “We try to provide them with a moment of empowerment, so they feel self-efficient again,” she said, adding that a lot of people “never really found their own voice,” and left Afghanistan in search of one. IPSO provides up to five sessions for those in need, and the organisation keeps in Skype contact with returnees in remote provinces. They have also assisted people who have been deported from Finland and Norway, although the organisation does not have bilateral grant agreements with these two countries.

At the time AAN met the IPSO director, she said she was not required to keep separate statistics of how many deportees had taken up her organisation’s offer of support. This has now changed. According to German official data, IPSO had held “94 individual psycho-social counselling sessions and 64 individual meetings [of another, non- specific character]” – which, in AAN’s experience, seems to refer to the offers given at the airport upon arrival. 17 deportees participated in “support groups”, five visited the organisation’s psychiatrist, seven used IPSO’s day care and food offer, “others left to their provinces after a few contacts.” This means that only a minority of the deportees from Germany took up IPSO’s offers.

(5) Monitoring

Upon request of the donor countries, IOM also monitors returnees’ reintegration for up to a year. Norway, however, was the only country that has so far requested this, an IOM official told AAN. In late 2016, the organisation  launched a community response map, which monitors beneficiaries for up to a three-month period. The map also includes the responses of those who returned from Pakistan (see here).

Institutional unpreparedness, patchy support

Although the Afghan government and local and international organisations managed to organise some kind of first response to both voluntary and forced returnees, it seems that services available to those returning are patchy and in many cases insufficient to provide a realistic chance to start a new life in Afghanistan. There is also no convincing approach yet on what to do in particular with ‘returnees’ who have spent years in Iran and are out of touch with life in Afghanistan.

Despite certain improvements – such as setting up of a software-based registration system at most official border crossings and at the airport office –, the government is still institutionally widely unprepared to cope with the massive influx of returnees. It is still in the process of developing policies and fundraising mechanisms. The variations in numbers between IOM and the MoRR, but also between IOM and individual member states show that there is incomplete information about those who returned from Europe in 2016 and early 2017. The voluntary returns and particularly the deportations from Europe add an additional and untimely burden.

The available but very limited care and accommodation is far from sufficient for some returnees who need to re-acclimatise to a society that is effectively still war-ridden and under social duress. The mass return from Iran and Pakistan significantly adds to this duress. There is a great chance, therefore, that those returning from Europe in comparatively low numbers will end being sidelined, as a quantitatively less important and therefore less urgent humanitarian issue. Nevertheless, the fact that European governments continue to push for returns to Afghanistan in this situation (see AAN’s previous reporting here) is another example of a purely donor-driven policy in Afghanistan. As AAN has shown earlier, official Afghan buy-in into such a policy is achieved by financial pressure.

(1) Since 2001, Afghanistan has signed memoranda of understandings on returns and readmissions with several EU/ Schengen members, including France (2002), UK (2002), Netherlands (2002), Denmark (2004), Switzerland (2005), Norway (2005), and Sweden (2006, until 2009); also, see AAN’s previous reporting here and here.

(2) IOM figures differ from individual member states’ figures, as the organisation counts only those that it aided. France, for example, has a higher number on their list, as their numbers include deportees, which IOM had not assisted. France rejected three Afghans in 2015, and 136 in 2014 (see here). Official German statistics register 3,322 „voluntary returnees” to Afghanistan for 2016. IOM figures also include returnees from non-EU countries such as Turkey and Australia.  

The Afghan Ministry of Refugees and Repatriation (MoRR) also keeps track of voluntary returns and deportations, however, the variation in figures between theirs and IOM’s is striking. This might be due to methodology or the fact that Afghan authorities might not be informed by the sending country or unable to identify voluntary returnees when they board commercial flights. MoRR statistics for 2016 only show 911 individuals under the category “voluntary returnees who came via Kabul airport” and 1,275 under the category “the returnees who received IOM assistance and have been interviewed.” It also documented 536 individuals who were forcibly returned in 2016, and of those 536, ten had been returned to the country of deportation by the Afghan authorities. This contrasts with IOM figures, which documents 166 forced returns in 2016.

Additionally, according to MoRR figures, during the solar year 1395 (21 March 2016 to 20 March 2017), the ministry registered 4,074 spontaneous returns. The table on spontaneous returns suggests that there were only nine spontaneous returns from Pakistan and seven from Iran in the solar year 1395. UN figures, however, indicate that 614,411 people moved from Pakistan to Afghanistan in 2016 (see AAN’s previous reporting here).

(3) The remaining returnees came from non-EU countries, ie from Australia – 2 individuals; Azerbaijan – 4; Indonesia – 30; Nauru – 1, Serbia – 3; Switzerland – 10; and Turkey – 195.

(4) IOM keeps track of both voluntary and forcible returns, but there is possibly an additional number of returns and deportations outside of the IOM statistical overview. For example, the Netherlands was mentioned as a deporting country (twice by German interior minister Thomas de Mazière, one quote here), but AAN was unable to find any reference in IOM or MoRR statistics overviews on deportations from the Netherlands.

(5) The debate is fuelled by the continued refusal of the German government to name those provinces, or areas within them, which it considers safe enough for Afghans being deported there, arguing the information is classified (see the latest example in its answer to an official parliamentary query, dated 20 April 2017, here).

(6) IOM has bilateral agreements with Australia, the UK and Denmark for assisted voluntary returns, the funds for which are channelled through IOM’s global programme for voluntary returnees. The organisation also used to have a bilateral agreement with Norway, but after allegations of corruption in February 2016, the Norwegian government stopped the funding (see here and here). Although it is most likely that Norway will renew its funding to IOM this year, after all allegations have been cleared, the Norwegian government has currently contracted a local law firm in Afghanistan, Shahjan and Associates, which runs post-arrival assistance including the guest house, Roshan Plaza, (located in Shahr-e Now neighbourhood, central Kabul) for those returning from Norway. The rules related to the possible duration of stay in Roshan Plaza are the same as for the Jangalak facility, where individuals can stay up to two weeks.

(7) In one instance, IOM chartered a plane in February 2016 for 125 voluntary returnees from Germany, which cost the German government 98,000 Euros. According to Hart, the head of IOM in Afghanistan, buying 125 tickets on commercial flights would have cost only 68,000 Euros; the German government, however, had insisted that the plane should be chartered. It is not only the German government that opts for this expensive option. Finland, for example, has twice chartered a plane for three deportees each time. According to German government figures, charter costs for the country’s first four deportation flights were between 319,000 and 330,000 Euros.

 

Most of the 600,000 Afghans who returned from Pakistan last year chose to settle in the eastern border province of Nangrahar. This has put considerable strain on both health and education services. There has also been a boom in property prices, which has exacerbated land grabbing, already a major source of conflict in the province. AAN’s Fazal Muzhary (with input from Jelena Bjelica) analyses the local consequences of this mass return.

For most of the last year, massive numbers of trucks could be seen crossing into Afghanistan at the Torkham border, loaded not with flour, cooking oil or any of the other usual imports, but with returning Afghan refugees together with all their worldly goods. Many are returning to their homeland after decades spent in Pakistan and are bringing everything they own and can carry. Trucks are loaded high with mattresses, kitchen utensils, bicycles, fans, firewood, wardrobes, plastic water tanks, even timber taken from their old homes ready to build new ones. It is not unusual to see animals tethered on top – chickens, cats, cows, goats, sheep and sometimes dogs.

The trucks are not only piled high with belongings, but family members too, sitting on the top of all the stuff – women, men, girls and boys. For many of the ‘returnees’, it is their first time back in Afghanistan for decades. For some, those born in Pakistan, it is their first time ever, now back and moving towards new and sometimes unknown destinations.

Many spoke to AAN of their relief and happiness to be back on Afghan soil. 59 year old Nur Ahmad, for example, who is the oldest of six brothers originally from Baghlan province, where they were heading for, told AAN, “We could not leave our house in Haripur in Pakistan because the police would always stop us and ask for money.” Back in his homeland, he said they felt “very comfortable, despite all the problems we expect with finding work and shelter. “Crossing into Afghanistan was a dream for us, a dream come true, thank God.” Local officials in Nangarhar said, about 30 per cent of all the returnees that settled there were originally from other provinces, most of them neighbouring ones. However, they said those returnees appeared to have no attention to move on to their respective provinces.

A peak in ‘returns’, especially for Nangrahar province

More than 600,000 Afghans returned from Pakistan in 2016, according to reports by the International Organization for Migration (IOM) and the United Nations refugee agency, UNHCR. (1) During the first six months of last year, just 7,000 Afghans returned (see here). Then, the numbers picked up dramatically due to pressure from the Pakistani government. This included house raids by police and eviction notices, as detailed in an earlier AAN dispatch and reports by Human Rights Watch and UNHCR(2). Returns peaked in second half of last year while the absolute peak in returns was recorded in August 2016. Many, if not most of those who returned in 2016 (or their parents or grandparents) had left Afghanistan between 30 and 40 years ago, during the Soviet invasion, and have limited remaining family or economic ties to their homeland (see here)

After a winter lull, the returns have again picked up, this year. According to the UN humanitarian coordination agency, OCHA, 17,970 undocumented (Afghans holding no Proof of Registration, and not registered with the UNHCR) Afghan returnees crossed the border from Pakistan between January and March 2017, 20 per cent more than in the same period last year.

The current influx is just the latest wave of returnees. Since 2001, about 3.9 million Afghans have returned from Pakistan. In the immediate years following the overthrow of the Taleban regime, people mainly returned voluntarily, motivated by the hope that peace had been restored. After that, the number of Afghans returning home slowly diminished, largely due to the renewal of the conflict. Each year, from 2009 to 2014, fewer than 100,000 Afghans returned from Pakistan (except in 2012, when it was slightly over the 100,000 mark – for annual figures, see here).

Most of the recent returnees have chosen Nangrahar as their new home. According to Provincial Council Member, Zabihullah Zmaray, over 70 per cent of Afghans returning from Pakistan decided to settle in different districts of the province. His figure broadly tallies with one provided by Hafiz Ahmad Miakhel, media advisor at the Ministry of Refugees and Repatriation (MoRR), who put that percentage at over 60 per cent. Miakhel based his figure on the daily registration of returnees at the Torkham border crossing. IOM found in a survey of the heads of 306 households of undocumented refugees that 76 per cent said they planned to settle in Nangrahar. OCHA has put the figure of all returnees, both documented (Afghans holding Proof of Registration, and registered with the UNHCR) and undocumented, now settled in Nangarhar (from Pakistan, Iran and abroad) at around 418,000 (available here). The population of Nangrahar, which was about 1.5 million in 1390/91 (2012/13) according to the Central Statistics Office (www.cso.af), has increased by about a third in less than a year, if these estimates are correct.

Both the December 2016 and May 2017 IOM data confirm that most of the returnees from Pakistan came via the eastern border crossing at Torkham. The southern border crossing, in Kandahar’s Spin Boldak, saw far fewer returnees. Less pressure on Afghans from the Pakistani authorities in Baluchistan is probably the main reason for that. It is not just Nangarhar which has seen a high rate of returns. The east as a whole, so Nangarhar, Laghman and Kunar, together received the bulk of the returnees in the second half of last year. IOM says that these three provinces now have a total returnee population of 2,456,500, with one in five of the population now being a returnee (see here).

A strain on social services

This rapid increase in Nangrahar’s population has put a strain on government services, including health and education. The city’s main hospital, the provincial council member Zmaray told AAN, was built to cater for a population of about 1.3 million people in the 1970s, but is now overcrowded and struggling to provide services. He said all wards and bedrooms were full and new patients were either having to wait in corridors or in the open yard of the hospital. A doctor at the provincial hospital in Jalalabad city (who did not want to be named) said that the daily rate of babies being born there had doubled, from 60 to 120 per day.

Education department officials tell similar stories. According to the department’s director, Allahdad Ismailzai, the number of students at Nangrahar High School, located in the centre of Jalalabad, has more than doubled. An additional 1,300 to 1,500 students were admitted for the academic year 1395/96 (2016/17) which began on 15 September 2016, on top of the 1,200 students already studying there.

The education department managed to enrol a total of 34,000 additional students and pupils from returnee families in schools all over the province. Its officials told AAN that the students were enrolled based on different conditions. For example, 2,000 were accepted based on school documents from Afghan schools in Pakistan. Another 16,000, between grades one and six, were enrolled unconditionally, ie without presenting any papers. The remaining 16,000 students had been temporarily enrolled for three months. After that, the education ministry would test them to ascertain their level and formally enrol them. A local source in an international organization in Nangrahar who follows the issue also confirmed these figures.

The education department has received support from both international non-governmental organisations and the United Nations. The Norwegian Refugee Council (NRC) hired 120 new teachers for this academic year, while the United Nations Fund for Children (UNICEF) added 50 more teachers for children who are living in tents in different areas along the Torkham-Jalalabad highway, with a hundred more teachers to come. The education department officials told AAN that both UNICEF and the NRC provided stationary and 190 tents that could be used as schools, with 60 more promised.

Short-term relief and lack of economic opportunities

According to a document outlining support to the returnees that AAN received from the governor’s office in Nangrahar province, about 40 per cent of undocumented repatriates were given 350 USD per family by IOM and the World Food Programme (WFP) for food and shelter in the last six months of 2016. The government gave 100 million Afghanis from its own budget during the same period, and each family under this programme received 3,350 Afghanis (49.53 USD). Another batch of 7,000 families that returned early last year each received financial aid of 9,000 Afghanis (130 USD). Furthermore, it is added in the document, different NGOs, such as NRC, UNHCR, IOM, Danish Refugee Council, WFP, International Rescue Committee, Save the Children and UNICEF have provided assistance to the returnees in terms of food and shelter. The diverging amounts handed out to different groups of returnees indicate a degree of spontaneity in the reactions to a problem that had taken everyone involved by surprise and that has been triggered by bilateral Afghan-Pakistani tensions (see earlier AAN analysis here).

Such assistance, while welcome, also does not last long, and most families need to find their own income fast. Some of the returnees seek work as daily labourers, going to Talashi Square in Jalalabad city where employers usually look for mazdurkaran, the Afghan term for this widespread form of precarious employment. According to the IOM survey, an estimated 31 per cent of those intending to repatriate planned to be looking for daily wage labour, but even that kind of work is scarce. “Me and my friends hardly get a single job once a week,” said Zaman Gul, who is in his mid-40s. “When we were in Pakistan, we could find work sometimes six days, or at least a few days a week.” He said that other labourers told him that, before the returnees arrived, the labourers could find work, but now the chances had considerably decreased. Civil society activist Nur Agha Zwak backed up such testimony with figures. Between March and December 2016, he told AAN, the estimated number of day labourers in entire Jalalabad increased six fold, from about 300 to about 2,000. (Hakim Shehzad, head of the public works department, said that he lacked the data either to confirm or to challenge this estimate.)

There are vague plans from the local government to provide more job opportunities, but local government officials admitted that, so far, they had been unable to offer the returnees very much. The Nangrahar governor’s spokesman, Attaullah Khogiani, said that there were plans to utilise the existing skills of the professional and educated returnees, but he was unable to provide information on any specific job opportunities available to the repatriates.

Some returnees have brought over rickshaws from Pakistan to earn a livelihood in Jalalabad. According to a Pajhwok report there are now more than 9,000 of those tricycles in the city, many of them not registered with the traffic department. This has added to the traffic jams, as has the increased number of handcarts belonging to people trying to survive as sellers of fruit, vegetables and other items. While in the past it would take 30 minutes to drive from one end of the city to the other, people said it could now take over two hours. The local government now plans to provide number plates to registered rickshaws and to ban the unregistered ones from the city, in order to manage the city traffic better (read more here).

Not all returnees are poor. Some of those interviewed by the author in October 2016 had sold their businesses in Pakistan and planned to use the capital to start new businesses (or buy a home or a plot of land) or had managed to move their businesses from Pakistan to Jalalabad.

House rents and land prices

When returnees arrive, they often first try to find a house to rent and later try to buy or purchase land to construct a house of their own in the same neighbourhood. Most of the returnees prefer to live in Jalalabad city, or in its surrounding districts such as Surkh Rod, Behsud, Khogiani, Rudat and Ghanikhel. As a result, in many of these areas the rents and land prices have dramatically increased. (Land values in Afghanistan have already increased by 1,000 per cent in the urban areas since 2001, according to a report by the Special Inspector General for Afghanistan Reconstruction (SIGAR).) According to a property dealer named Shakirullah, in the early summer of 2016 a four-roomed house could be rented for around 13,500 Afghani (200 USD), but by the end of 2016 it had become difficult to find such a home for less than 33,750 Afghani (500 USD). In the Ulfat Mena neighbourhood, close to the city, before the influx of returnees, rent for a three-roomed house was less than 10,000 rupees (100 USD); however, following the influx, they were being rented for 20,000 Pakistani rupees (roughly 200 USD). As a result, there is now a new trend among the rich to buy land and build houses so they can rent them out to returnees. Those well-off consider it a booming business and a good opportunity for making quick and easy money. This further fuels the hikes in rent and in land prices. For all but the rich among the returnees, the price hikes in land prices and rent has made it difficult to find a new home.

Returnees who cannot afford to rent a house or buy land either move in with relatives in Nangrahar or, if they do not have some, jointly rent a house with other returnees. In the Daman area, also known as Qasemabad, a hillside in the Behsud district, to the northeast of Jalalabad, residents told AAN that there were hardly any households in the neighbourhood that were not hosting at least one returnee family from Pakistan. “I have three rooms in my house and two returnee families living with me,” a local journalist, Amin Zahir, told AAN, adding that the returnees did not pay rent because they were relatives. Shayesta Khan, an Afghan returnee, who returned last October, his three brothers and their families jointly rented a four-roomed house for 12,000 rupees (115 US dollars) per month, with each brother paying a portion according to his ability. The brothers are originally from Qarghayi district of Laghman, and have no relatives in Nangrahar.

As more and more people are seeking to invest in land and houses in order to rent them to returnees, owners have been able to push up the price of land. For example, in the Yawolasema Wiyala area in Behsud district, which is very close to Jalalabad city, one biswa (100 square metres) of land was sold for 168,750 Afghani (2,500 USD) in the early summer of 2016. In January 2017, one biswa in the same area cost between 303,750 and 405,000 Afghanis (4,500 and 6,000 USD). In the Ghauchak area, also close to the city, property dealers said the price for one biswa had increased from 337,500 to 540,000 Afghanis (5,000 to 8,000 USD).

Additionally, local people are now selling farmland, which is then turned into residential property, diminishing the area of arable land in one of Afghanistan’s most fertile provinces. The Afghan news agency, Pajhwok, reported in December 2016 that in Behsud district about 80 per cent of the farmland had been sold to returnees. In the Yawolasema Wiyala area, according to civil society activist, Mal Shinwari, the proportion of land meant for agriculture had decreased for this reason.

The high demand for land plots has also provoked new land disputes and encouraged land grabs by individuals seeking either to sell onwards or to build houses for sale or rent.

In Daman district and others, the number of returnees has changed the local rich-poor dynamics as well as local hospitality patterns. In the recent past, people from other provinces who owned property in the area would still allow poor people to live in their houses for free. But with the arrival of so many returnees, the owners have started to rent out their houses. A local tribal elder Murad Gul complained that the hike in rent was eroding the traditional spirit of generosity among people, who in the past would help the poor by allowing them to use their houses for free.

The governor’s spokesman, Attaullah Khogyani, told AAN that a new mechanism had been put in place by the municipality to control high rents. Every owner, before renting out a house to someone, has to inform the community elders as well as the Afghan intelligence agency, the NDS, prior to the deal, in order to get security clearance and approval for renting the house to the client. However, local people told AAN they have not seen any instances where this mechanism has prevented rents from rising.

The governor’s spokesman also said that the authorities have asked returnees originally from other provinces, who make about 30 per cent of all of the returnees, to move there and use the facilities provided there by the respective local governments. The governor’s spokesman further said that, as a result of spring, no decrease has been seen among the returnees who were said to have settled in Nangarhar because of cold weather. This means that the reason for returnees to settle in this province was not only the weather.

Plans for new towns run into obstacles

Although there are now three new townships planned for returnees in Nangrahar, the provincial government is still struggling to cope with housing their huge numbers. One of the three is meant specifically for carpet weavers. This plan emerged on 10 October 2016 when President Ashraf Ghani signed a new order for three townships to be built for carpet weavers returning from Pakistan (the other two will be built in other provinces). The aim is to accommodate a class of artisans that made Afghan products famous worldwide, but had left the country en masse following the Soviet invasion, depriving Afghanistan of one of its trademark exports. Ghani said he also hoped that the carpet weavers could produce new employment opportunities in the country.

Nangrahar’s weaver township is supposed to be built in the Wech Tangi area of Behsud district, (see a report here). A month after the president’s announcement, on 10 November 2016, provincial officials visited the site, but no further steps to survey the area have yet been taken (here is the report). Of the other two returnee townships planned for Nangrahar, according to the provincial governor’s spokesman, Attaullah Khogyani, one will also be built in Wech Tangi (it has been named Khanaki) and the other in Kot district. The spokesman said the area for those townships has been identified but the actual survey has yet to begin (officials claimed it would start soon.)

New and old land conflicts

However, the record on actually getting land to returnees or others is not good. Land-grabbing by the powerful has been a persistent problem in Nangrahar – as elsewhere. (3) There are actually two existing townships marked out for returnees, Chamtala Township in Surkhrod district and Sheikh Misri town on the border between Surkhrod and Chaparhar districts. In Chamtala, 8,000 land plots were allocated for returnees in 2008 (see UNHCR report here), but about 3,000 of these were seized by local powerbrokers, according to the Director of the Refugees and Repatriation Department, Ghulam Haidar Faqirzai (see an Afghan media report here).

In Sheikh Misri, land plots for returnees were approved as early as 2005. According to civil society activists, local powerbrokers took over the land and the returnees were unable to obtain their plots. Even returnees with documents for land plots failed to obtain land, despite protesting several times in front of government institutions in Jalalabad (see here). Locals and returnees told AAN that certain former officials, such as former police chief of Nangrahar, Muhammad Zaman Ghamsharik (who was killed in a suicide attack in February 2010 and replaced by his brother, Aman Khairi), and other powerful figures had grabbed these plots. In addition, current parliament member Haji Zaher Qader also staked his claim in part of the township of Chamtala (see previous AAN dispatch here). In a meeting with governor Mohammad Gulab Mangal on 18 February 2017, deputy refugee minister, Ahmad Wali Hakimi said that a survey would soon be carried out to identify land that had been taken in the towns of Sheikh Misri and Chamtala (see here). It appears, however, that the government is still struggling to reclaim the land from the local powerful.

The problems in these two towns indicate that there could well be similar issues facing the planned townships as well. For example, Wech Tangi, on the road leading from Jalalabad to neighbouring Kunar province, is the place where the weavers’ township is to be built. It is a flat desert area, situated to the east of Jalalabad, which borders with Qarghayi district of Laghman to the north, Kuz Kunar district of Nangarhar to the east, the Jalalabad-Kunar Highway to the south and the Daman area to the west. At the moment, there is no water source in this area, and if the refugees are going to settle there they would need to dig wells for drinking water. According to several local sources (including local journalists, residents and political analysts who closely follow the issue), however, inhabitants from Wech Tangi have tried to prevent the government from building the two planned townships in their area. They are reportedly supported by provincial Jamiat strongman Hazrat Ali, Senate Chair Abdul Hadi Muslimyar and others, who have already prevented returnees from setting up tents there. Locals from the area said that these figures had encouraged people in the area not to allow the construction of a road connecting the two towns with Jalalabad because certain shops and houses would be destroyed in order to complete the road project. It was not clear if this was a real concern by the property owners or a tactic to delay work for more nefarious reasons.

There are also significant bureaucratic hurdles for returnees trying to obtain land deeds (see this AAN report) Land distribution under the MoRR is so poorly managed that the president, according to AAN sources, is planning to redraft existing legislation and move the administrative management of land distribution to the Afghanistan Independent Land Authority (Arazi, in Dari).

The problem of land grabbing has already had an effect on Afghan refugees in Pakistan, as news of it has spread among them. Deterred by the chance to run into conflict with local power holders, many have decided to stay put. This is certainly true in Balochistan, where no major incident of pressure from the Pakistani authorities has so far been reported, and where one Afghan told a BBC reporter the refugees there would not be returning because of this issue (see the report here).

Looking ahead: more returnees, more pressure

Locals and officials in Nangarhar told AAN they think that many more returnees expected this year will also try to settle in their province. Increasing numbers will result in more pressure on social services and the labour market, make rents and property prices rise further and might pit local populations against the newcomers. Already now, many are anxious about the number of unknown people now settled among them.

A lot will depend on whether those among the returning refugees from other Afghan provinces are planning to move back there, whether the Afghan government is able to motivate them to do so and whether the government can implement its new action plan. It was released in mid-March and was put together in coordination with UN and donor agencies. It focuses on six areas: immediate humanitarian assistance, documentation, access to basic services, land allocation and adequate housing. The plan is still being costed, said OCHA, and there may also be some re-drafting of laws. (4) However, in order to support the returnees, political will from the government will also be necessary. That will have to include a determination to go after the politically well-connected, local land grabbing mafia.

Edited by Kate Clark, Sari Kouvo, Martine Van Bijlert, Borhan Osman and Thomas Ruttig

 

 

(1) The 600,000 returnees include 248,189 people who did not have identity papers and who were registered by IOM. Most of these ‘undocumented’ Afghans have been forced to leave Pakistan (see this AAN dispatch). The 600,000 figure also includes 370,000 Afghans with identity cards who were registered by the UNHCHR). Most of these ‘documented’ Afghans were happy to return, although pressure was put on them to do so ( see AAN previous analysis here)

(2) According to a UNHCR spokesman, Qaisar Afridi, the rate of Afghans returning picked up due to “tight security measures at the Torkham border by the Pakistani government, alleged harassment of Afghan refugees by Pakistani police, doubling the per person payment of financial aid to the returnees from 200 to 400 USD by UNHCR and the ‘Khpal Watan Gul Watan’ (One’s own country is the lovely homeland) campaign by the Afghan government in Pakistan.” Human Rights Watch, in its February 2017 report, explained that the returns were due to a “campaign of abuses and threats” by the Pakistani authorities (further details in this previous AAN analysis). According to Human Rights Watch, the doubling of UNHCR’s cash grant to returnees has been “critical” in persuading Afghan refugees to leave Pakistan (see for instance this report). UNHCR, however, disagreed. On 27 January, the agency wrote to Human Rights Watch, saying that, although it shares Human Rights Watch’s “concerns regarding the reported push factors affecting the repatriation from Pakistan,” it “strongly refutes the claim that increasing the cash grant constituted promotion of return,” and that UNHCR “provides support to refugees who make the decision to [return] based on a well-informed consideration of best options.”

(3) This is not just a problem in Nangrahar. All over Afghanistan, displaced Afghans have returned home and sought to reclaim the land they previously owned. This Special Inspector General for Afghanistan Reconstruction report quoted a senior official at the Afghanistan Land Authority (Arazi, in Dari) saying that “approximately 60 percent of all corruption in the Afghan judiciary involves land ownership.” The SIGAR report further stated that the hundreds of thousands who have not been able to reclaim their land have resorted to squatting on the outskirts of urban areas in informal settlements that are unrecognized by the government.

(4) OCHA wrote:

In mid-March, the Displacement and Returns Executive Committee (DiREC) and National Cabinet endorsed a comprehensive Action Plan to accompany the Policy Framework on IDPs and Returnees adopted in January. The Executive Committee facilitates joint humanitarian and development planning and brings together Government, UN and Donor agency efforts focusing on six key response areas, including: the provision of immediate humanitarian assistance, documentation, access to basic services, land allocation and adequate housing. A costing exercise outlining the financial requirements of each goal is in the process of being finalised along with plans to replace Presidential Decree 104 with a draft Technical Procedure for the Provision of Land to Returnees and IDPs. 

For more detail, see here.

 

 

Gulbuddin Hekmatyar, the notorious leader of Hezb-e Islami, returned to Kabul today. After several years of on-and-off talks, between the Afghan government and envoys of the party’s leader-in-hiding, a deal allowing his return was finally signed in September 2016. Several months of negotiations on the finer details of the deal’s implementation followed. An overview of AAN’s past reporting on the winding road that led to the deal provides indispensable background to the questions that still surround Hekmatyar’s return to public life.

For AAN’s most recent analysis on Hekmatyar’s return read this dispatch (3 May 2017):

Charismatic, Absolutist, Divisive: Hekmatyar and the impact of his return

 For analysis on the practical impact of the recent deal – on the UN’s sanctions list and on the situation in Shamshatu refugee camp, long the de facto HQ of Hekmatyar’s Hezb-e Islami – see these two dispatches (11 February 2017 and 14 April 2017):

Hekmatyar taken off UN sanctions list: Paving the way for his return – and Hezb-e Islami’s reunification?

Moving Out of Shamshatu: Hezb-e Islami’s refugee followers between hope of return and doubts about the peace deal

To see how the agreement with Hezb-e Islami features within the larger context of the issues facing Afghanistan this year, see here (27 January 2017):

What to Watch? Key issues to follow in Afghanistan in 2017

For background on why Hekmatyar’s Hezb-e Islami is controversial, and how the past still reverberates today, read this dispatch (14 December 2016):

Afghan War Criminal Zardad Freed: No protection for witnesses

For AAN’s analysis on the importance and impact of the deal, as it was being negotiated and signed, see these two dispatches (21 May 2016 and 29 September 2016):

Almost Signed? The peace agreement with Hezb-e Islami

Peace With Hekmatyar: What does it mean for battlefield and politics?

AAN’s paper on the influence of radical Islamic groups – other than the Taleban – among Afghanistan’s youth, includes an in-depth look the role of the Hezb-e Islami youth, including at Afghanistan’s universities (23 June 2015):

Beyond Jihad and Traditionalism: Afghanistan’s new generation of Islamic activists

The following dispatches trace the emergence and development of the negotiations with Hekmatyar’s Hezb-e Islami, both under president Karzai and president Ghani (most recent first):

19 February 2014:

Bomb and Ballot: The many strands and tactics of Hezb-e Islami

6 May 2013:

Adding the Ballot to the Bullet? Hezb-e Islami in transition

7 June 2012:

Another Hezb-e Islami U-Turn – with more to follow? (amended)

26 April 2012:

The second line of talks: Hezb-e Islami in Kabul

 6 November 2010:

Gulbuddin ante portas – again (2)

22 March 2010:

Gulbuddin ante portas – again (Updated)

Finally, see this dispatch for more background on Afghanistan’s ‘Amnesty Law’ that allows the search for peace to take place through blanket amnesty (22 February 2010):

After two years in legal limbo: A first glance at the approved ‘Amnesty law’

One of the anti-Soviet mujahedin leaders, Mawlawi Yunus Khales, famously likened Gulbuddin Hekmatyar to a pair of trousers that had caught fire: get rid of them and be naked or keep them on and burn. Hekmatyar, Khales appeared to be saying, is too necessary to throw away and too problematic to keep close. So, what happens to a government that signs a peace accord with this man, who is both charismatic and divisive, especially a government which already suffers from internal discord? As celebratory billboards with his picture are being raised – and immediately defaced – in Kabul, AAN’s Borhan Osman takes a look at the implications of Hekmatyar’s return to Afghan politics.

A peace deal with a party – or with an individual?

Gulbuddin Hekmatyar, leader of Hezb-e Islami (often abbreviated to HIG: Hezb-e Islami-ye Gulbuddin) is due to return to Kabul in the wake of the peace deal he signed with President Ashraf Ghani on 29 September 2016. The agreement, hailed by the Afghan government as the first major peace achievement of the last fifteen years, was the climax of six and half years of negotiations, which had been fraught with interruptions and breakdowns. The accord became possible after Hekmatyar dropped his most substantial pre-condition for any deal, the withdrawal of foreign troops.

The agreement contains a commitment by HIG to stop its military activities and fully respect the laws of Afghanistan. The government in return, committed itself to requesting the delisting of HIG leaders and members from sanctions by the United Nations and others. The government also declared an amnesty for the HIG leader and his followers for their past crimes and agreed to recruit HIG fighters into the Afghan National Security Forces (ANSF), and provide townships for 20,000 refugee families affiliated with HIG and living in Pakistan to settle in. The government said, as well, that it would free security and political prisoners detained for their links to HIG. For Hekmatyar himself, the government pledged to provide him with several homes and an honorary status, as it says in the agreement, in appreciation of his struggle “for peace and freedom of Afghanistan.”

This deal is basically about reconciliation with Gulbuddin Hekmatyar personally. Most provisions of the agreement were designed to make his return look prestigious and enable him to sell the agreement to his followers by demonstrating that it was also beneficial to them. Since Hekmatyar himself is at the centre of the deal, his return to the Afghan capital has been seen as the main manifestation of the peace agreement. HIG negotiators have kept insisting his return could only come after various aspects of the deal were implemented; implementing the deal has, so far, not gone smoothly.

The UN Security Council took Hekmatyar off its sanctions list on 4 February this year. Other Hezb leaders and Hezb-e Islami itself were never on it. The United States still has Hekmatyar and Hezb-e Islami on its proscribed list, but this is a lot less serious as it only bans their funds going into the US. America also still has a bounty on the heads of two Hezbi commanders accused of terrorist crimes in Afghanistan (including the attack on the Finest supermarket in Kabul in January 2011 which killed all the members of an Afghan family). As to prisoners, the government has only agreed to release those convicted of less serious crimes – to the fury of HIG negotiators. The release of some of the prisoners came on 2 May, days after Hekmatyar’s coming back to Afghanistan, although before his entry into the capital. Both sides have also been haggling over the distribution of plots of land to refugees associated with the party. They have also been wrangling over the nature of the welcoming ceremony which the government will hold.

HIG representatives have frequently taken to the media to accuse the government of not upholding the agreement. They have particularly accused circles around Chief Executive Abdullah Abdullah (who belongs to Hezb-e Islami’s old rivals, Jamiat-e Islami) of trying to sabotage the peace accord. According to diplomats and sources in the government that AAN has spoken to, HIG negotiators even threatened to withdraw from the agreement if the government failed to meet their demands. However, bargains have now been struck and Hekmatyar is coming back. The first official ceremony – a welcome by government leaders including Second Vice-President Sarwar Danish and National Security Advisor Hanif Atmar – took place in Jalalabad on 30 April 2017. Hekmatyar made a long speech, mostly dedicated to defending the peace deal against possible Taleban criticism. The Taleban have not officially commented on the deal or on Hekmatyar’s return, but on social media, Taleban members have consistently denounced Hekmatyar’s signing of the peace accord as surrender, a submission to the government.

Hekmatyar has yet to arrive in Kabul itself, a city which, during the civil war of the mid-1990s, he ordered ruthless bombardments of, regardless of the extreme harm done to the civilian population. He was not alone in this – and many of the commanders and leaders of the other factions fighting over Kabul at that time took senior government positions, fifteen years ago, in 2001. However, Hezb-e Islami was considered ‘first among equals’ among the various factions who together left a third of Kabul destroyed and tens of thousands of people dead. One example of Hezb-e Islami rocketing came in August 1992 when, according to the International Committee of the Red Cross, which was providing emergency health care to the city at the time, 1000 to 2000 people were killed and eight to nine thousand left injured (cited here).

Even before that, Hekmatyar, has been accused of carrying out large numbers of assassinations, particularly in Peshawar, where he targeted those who, like him, were also anti-Soviet and anti-PDPA. There are detailed accusations of him ordering the assassination of monarchists, women’s rights activists, intellectuals and mujahedin from other factions. As noted in a previous AAN dispatch, one of the most notorious assassinations was that of Sayed Bahauddin Majruh in February 1988. Majruh was the publisher of the highly respected magazine, which, a few months before his murder, had published the results of a survey that found that 70 per cent of Afghan refugees supported the former king, Zahir Shah, over any of the mujahedin leaders. Hekmatyar got very few votes. Asia Watch reported that Majruh had received death threats from Hezb-e Islami before his murder.

Hezb-e Islami already part of the state’s fabric

Hekmatyar will come to Kabul as head of a rather unusual party. Hezb-e Islami, taken as a collective political force, has been difficult to classify in the years since the fall of the Taleban as either pro- or anti-government. One part of the party, which has slowly become the largest, has supported the state and become part of the fabric of government in the post-2001 political order. Some senior Hezbi leaders, such as Wahidullah Sabawun, who once served (among others) as Hekmatyar’s head of intelligence, started their political activities in Kabul in early 2002. Others, such as Khalid Faruqi and Abdul Hadi Arghandiwal, joined later, establishing the largest Hezb-e Islami party in 2005 in Kabul; Arghandiwal became one of the several Hezbi ministers in the cabinet. The other part of the party continued an ‘armed struggle’ against the government until the signing of the September 2016 peace deal, although the effects of this struggle had become increasingly difficult to discern. Both of the factions have identified themselves as Hezb-e Islami, an undivided party. Both have taken pride in Hezb-e Islami’s legacy and called Hekmatyar their uncontested supreme leader.

The loyalty to Hekmatyar from both parts of Hezb-e Islami has continued, tacitly by one part, explicitly by the other. On paper, the party might have appeared to be fighting itself, given that Hezbis were on both sides of the ‘frontline’. However, many Afghans quoted a line about members of this party: “Once a Hezbi, always a Hezbi.” In other words, many Afghans believe Hezbis remain committed to their brand of Islamist politics and to their leader, regardless of changing circumstances or how they may present themselves.

Some analysts have gone further, reading the division of Hezb-e Islami along pro and anti-state lines as a tactic by Hekmatyar aimed at distributing his men on both sides of the ‘frontline’. However, the fact that Hekmatyar, at times, explicitly excommunicated those in the government casts doubt on this reading. His tone towards the pro-state segment was particularly harsh during the initial years of their joining the government, between 2005 and 2010.(1)

By the time Hekmatyar signed the peace deal with the government in September 2016, the overwhelming majority of Hekmatyar’s followers were living under the Afghan government. Given that the bulk of Hezbis were already on the side of the Afghan state and that Hezb-e Islami’s ‘armed struggle’ has dwindled to close-to-nothing, the significance of the Hezb peace deal is mainly reconciliation with Hekmatyar himself. It is his return to Kabul that makes this agreement important. Given his centrality to the peace accord, it is worth looking at the man himself and his personality traits and what impact they may have as he tries to fit into a new political environment. 

Hekmatyar, a charismatic leader? But divisive

President Ghani, in an interview with AAN during the presidential campaign of 2014, counted Hekmatyar as one of the five charismatic modern Afghan leaders (along with Ahmad Shah Massud, Abdul Ali Mazari, Abdul Rashid Dostum and Mullah Muhammad Omar), meaning a leader who inspired – or inspires – devotion in his followers by force of personality (and not implying that the leader is either a good or a bad person). Charisma is one of the qualities many mention about Hekmatyar. According to his followers, it arose through his closeness to them. Unlike other mujahedin leaders who were accessible only to the highest of the party hierarchy, they say, Hekmatyar preferred sharing meals with his fighters, would personally attend funerals and observe the ranks closely. His intellectual and writing skills and oratory were other elements of his personality that made him attractive to Hezbi members.

However, Hekmatyar’s strength lay not just in charisma, but in his capacity to organise. He created a party which, in the words of the Afghanistan Justice Project, “maintained a reputation as a highly organized and centralized faction. It had a complex leadership structure, with successive tiers in its decision-making body, and a powerful party leader.” Its ideology was also much more coherent than most of the other mujahedin tanzims (factions) and, until the mid-1990s, as Pakistan’s favoured mujahedin leader, Hekmatyar also got the biggest share of Western, Arab and Pakistani largesse. This helped him ‘grow’ his party and following. Loyalty to the leadership and to the organisational brand, a well-defined party structure and the vitality of its ideology, made Hezb-e Islami stand out as a strong organisation.

Hekmatyar has had an absolutist leadership style, based on building a small clique of loyalists around him, although those in this clique who questioned him or become too powerful were side-lined. An example of this is the constant reshuffling of his chiefs of intelligence (at least five people held this position during the years of anti-Soviet jihad). Compare that with Ahmad Shah Massud’s decades-long association with his chief of intelligence, Qasim Fahim. Hekmayar still has a grand vision of himself and his party. In his writings and interviews, he depicts himself as a visionary leader, an Islamic thinker and an authoritative theologian. In one book entitled Khubuna aw Taʿbirona (Dreams and Interpretations), Hekmatyar even published his interpretation of one of an Arab fighter’s dream as suggesting he could be the Mahdi, the divinely-mandated spiritual leader expected in the end times, at least for Afghans.(2) In conversations this author has had with Hezbis over the years, many have painted their leader as a man who is beyond reproach and whose decisions are above criticism.

To add to the mix of personality traits, his irritability is also frequently mentioned. People say he is easily irritated and ready to use extreme measures when angry. Making U-turns in alliances and using emotionally-charged rhetoric towards his foes during his years of anti-Soviet jihad and the insurgency are given as examples of this.

Hekmatyar’s absolutism has at times made him a divisive person, even within the inner circle of his party and even within his family. He favoured one son, Habib Rahman (from his younger wife), at the cost of another, Jamaluddin, his older son from his older wife. Habib Rahman has been acting in recent years as the spokesman and political representative of Hekmatyar, while Jamaluddin has been virtually removed from his position as head of the youth chapter of HIG. That made Jamaluddin turn against negotiations and throughout 2016 he accused his father of selling out the values of jihad for the sake of power, according to people close to him in the youth branch. He only got back on board with his father months after the signing of the agreement, and is now back leading the youth chapter. Hekmatyar also at times favoured one of his sons in-law over another, triggering competition between the two. Humayun Jarir has ended up with no specific portfolio within Hezb, while Ghairat Bahir is head of the political committee of the party. According to people close to the family, the two men vied to influence Hekmatyar’s decisions on details of the peace deal.

How much of Hekmatyar’s capacity for strong leadership and how much charisma he still has after being two decades away from day-to-day politics of Afghanistan will be seen. We simply do not know how strong he might still be or what control he may have over the party. In recent years, most of what has kept him in the public gaze has been noisy rhetoric, rather than actions, controversial statements rather than successful military operations. Examples here would be his Eid message from August 2013 threatening Hazaras for “encroaching on the rights of other ethnicities” and a year later, in April 2014, his declaration that he was prepared to send fighters to Yemen to fight in support of Saudi forces against the Shia Houthis. He also made headline news in August 2009 when he mocked the presidential elections and asked for an interim government to be set up but then, in January 2014, called on Afghans to vote, albeit for Hezbi candidates in the provincial elections in order to make Hezb dominate the provincial councils (3).

Adding Hekmatyar to the fragile mix of Afghan politics?

Hekmatyar is, then, a fractious and polarising leader, dividing Afghans between his staunch followers and those who detest him outright. The return of such a political leader, it would seem, should have an impact on the current situation on several fronts, particularly given the already fragile landscape of politics in Afghanistan. These include:

• Religious legitimacy (for some): This is probably the asset the government would most likely try to utilise. Hekmatyar is dubbed by his supporters as the ‘emir of twin jihads’, referring to his struggle against the Soviets and then against the Americans. Such outsized ‘jihadi credentials’ could present a challenge to the legitimacy of the Taleban insurgency. So far, the leader of Dawat-e Islami (formerly Etihad-e Islami) Abdul Rab Rasul Sayyaf dominated this discursive struggle. He has been vocal in rejecting the Taleban’s ‘jihad’ against the Afghan state as void of Islamic legitimacy, and thus an Islamically-illegal ‘rebellion’.

• Ethnic and sectarian tensions: Hekmatyar has a following among all the major ethnic groups, including Tajiks, Uzbeks and even Hazaras, but the backbone of his base has always been Pashtun. He has also not been afraid to play the sectarian, anti-Shia card, something which Afghan politicians and ordinary people have generally shied away from. Hekmatyar began his call to arms in 2002, for example, with a declaration in which he lamented the marginalisation of Pashtuns. In more recent writings, he imagined himself as a powerful Islamist who could unify the Pashtuns behind him and become their ‘Saladin’. His writings and interviews in recent years have also included diatribes against Hazaras. He has attributed their growing power to Iran, which he accuses of working to spread Shiism in the region.

Against this backdrop, his coming to the fold of the state brings a prospect of heightening ethnic debates in the Afghan politics. This tendency is already present – witness recent elections and political movements.(4) Some critics of Ashraf Ghani view the deal as a personal scheme by the president to bolster his Pashtun base in the government (his camp led the peace efforts, whereas Dr Abdullah’s camp remained suspicious of it) (see for example here, and here)

• Factionalism: Hekmatyar has long lamented the dominance of his old enemies, Jamiat-e Islami/Shura-e Nezar, (5) over government positions and economic resources during the post-Bonn era. If he continues his decades-long antipathy to Jamiat, this could undermine the recent rapprochement between it and many pro-government Hezbis. (In 2014, they came together in the presidential elections team of Dr Abdullah and Muhammad Khan, another former head of Hezbi intelligence.) Enmity from Hekmatyar could trigger a backlash from Jamiat, a still powerful political force in Afghanistan. Hekmatyar’s pre-recorded video message for the peace deal signing ceremony on 29 September suggested he has not yet backed down from his harsh hostile tone towards his former foes. His speech was dotted with what appeared to be coded references towards Jamiat, (6) veiled threats against “those who invited foreign forces to invade Afghanistan, and then joined these forces in a war against their own nation” and those “bought by foreign force” for whom the “war is a tool for obtaining power and resources.”

• Unification of Hezbis? Despite Hekmatyar’s reputation as a strong leader, there seems to be a considerable cleavage between him and what has become his increasingly diversified political base. One issue is an apparent difference in ideology and attitudes towards doing politics. The Hezbi heavyweights who, during the past decade, have participated in civilian politics (elections, parliament, appointments, running ministries and provinces), have adopted a realpolitik attitude: preserving their interests has mattered more to them than ideology. Unlike Hekmatyar, they have been muted on ideological discussions. They have also partnered with those political forces that their supreme leader has long lambasted as enemy number one: Jamiat/Shura-e Nezar.

Secondly, possible conflict over political and economic interests may make many Hezbis reluctant to fully integrate under Hekmatyar’s leadership. Although Hezbi leaders of all factions, including the largest one led by Arghandiwal, have said they consider Hekmatyar their supreme leader (Muhammad Khan in April 2014 told AAN that Hekmatyar remained the emir, the overall leader of all Hezbi factions and that nobody could contest this status), it is unlikely they will risk the political gains they have earned over the past decade for what might be Hekmatyar’s non-pragmatic positions. Indeed, indications of a discord between Hekmatyar and Arghandiwal have already emerged in statements issued by the two men in early April. Arghandiwal in a statement sent to the media asked Hekmatyar not to introduce people from the Kabul-based Hezb as cabinet ministers to the government (as part of negotiations for distribution of some seats to HIG). Hekmatyar responded by implicitly accusing Arghandiwal’s Hezb of treating the current distribution of power “by John Kerry” as untouchable and said, “We consider it a shame to partner with those devoid of popular support and dependent on others…who oppose appointment of competent people…who does not like our friendship and are afraid of us.”

Another early sign of the division came in mid-March 2017 when Hekmatyar ordered internal Hezb elections in all provinces to re-organise the provincial branches. The order left the election of the head of the provincial departments pending on consultation with Hekmatyar. This was seen by many of those in Arghandiwal’s Hezb as a coup against him as he already had provincial department structures in place.

Expecting unquestioning obedience from party members may well be a tall order in 2017. Hekmatyar will find a political environment that is strikingly different from the days of the anti-Soviet jihad. Then, he was the distributor of the resources which poured into his tanzim for fighting the Soviets; those who won his confidence received the biggest share. In today’s Afghanistan, he may be seen by those Hezbis who have already become part of the state as a competitor for resources, both power and money. Most of the Hezbi notables have made their mark on politics in the absence of Hekmatyar. Unlike him, they have moved a long way from the ideological slogans of the jihad era and are mainly interested in what brings in the money.

No easy integration

Hekmatyar’s return marks the beginning of his integration into Afghan civilian politics, not the end of it. Given his self-aggrandisement, that integration may not be smooth. The peace agreement has already been a source of dispute between his team and the government, with the two sides bickering over various issues: how and at what level should Hekmatyar’s welcoming ceremony be organised; what kind of residence should be rented for his accommodation and; how many bodyguards should he have and who should they be? The share in power, provision of government jobs and recruitment of Hezbis into the ANSF, the allocation of land for returning refugees allied with Hezb-e Islami all also remain sources of contention between Hekmatyar and the government. Some in government are unwilling to give much to him at all. Hekmatyar’s representatives have already accused Jamiatis in the government of trying to derail the peace accord in the government, both during the negotiations period and after signing of the deal. One area that may be thorny is the enlisting of Hezb-e Islami’s fighters and commanders into the ANSF; the process of integrating them seems unlikely to be smooth, especially given the appointment of Amrullah Saleh, a key Jamiat/Shura-ye Nezar figure as senior minister on ANSF reforms and appointments.

Then there are the coming elections in which Hezbis will participate. Some have interpreted the peace deal as Ghani attempting to realign Afghan political forces ahead of the next presidential election. If that was so, the prospect of a well-organised, largely Pashtun party ‘on-side’ would make sense. However, given the history of Hekmatyar’s obsession with national leadership, it is difficult to imagine him wanting anything but the presidency itself or deigning to campaign for anyone except himself.

Hekmatyar’s over-confidence in the popularity of Hezb-e Islami has, in the past, made him talk of elections more than any other mujahedin leader as the favoured path to power. Before and during the civil war, he would often call on other mujahedin factions to hold public elections, so that the nation could decide its leader and thus settle the perennial disputes over power. However, his first experience of quasi-public elections puts into question any actual claims to favour democracy. In early 1990, Hezb-e Islami was fighting over areas of Kunar with a Salafi group led by Jamil al-Rahman. Hekmatyar called for elections as to determine who should rule Kunar. When the results favoured the Salafis, Hekmatyar rejected the validity of the votes and escalated his attacks against the Salafi group. (For some details about the election, see here), although the full picture is yet not there).

While Hekmatyar’s stated passion for electoral politics at the national level has yet to be tested in any poll, his record is already enough to make many wonder if he is genuinely ready to accept pluralistic politics. If he has really embraced the founding principles of the post-2001 political order, as many of his followers have done, this would be a marked evolution. On the other hand, if he fails to play by the rules of Afghan democracy, that could be a risk to the country’s already delicate political set-up.

Edited by Sari Kouvo and Kate Clark

 

(1) This is based on statements and interviews published by HIG, most of which are no longer available online, but have been archived by AAN.

(2) In some Islamic narrations about the end times, the Mahdi (guided one) is the prophesied redeemer of Islam who will emerge to rid the world of evil. The Mahdi’s tenure, according to a doctrine shared by Sunnis and Shias, albeit in different variations, will coincide with the Second Coming of Jesus Christ (Isa), who will assist him against Dajjal (the Antichrist).

Here is the relevant excerpt from the book translated from Pashto:

Let me share with you the story of a meeting with the martyr Osama (bin Laden) and Ayman al-Zawahiri. In the first year of the American invasion when I was living in Shigal (district of Kunar), Osama, Ayman al-Zawahiri as well as Hamza and Osman the two sons of Osama and Abu al-Ghaith al-Kuwaiti were also with me. We were sitting around a dining table when Osama recalled a dream seen by an Arab brother….He saw that “we (Arab fighters) take shelter in an area resided by the Shinwari tribe. When living there, we received the news that Mahdi has appeared. People are carrying on their shoulders a person standing on a throne, in a position higher than us. They have tied his hands to his body with a rope. We are told this person is Mahdi…when we asked who are the people in this area (Shigal) by tribe. They said they are Shinwaris. I was puzzled to know there are Shinwaris in Kunar.” (Osama said) all parts of that dream has materialised, but that he did not know what was the interpretation of Mahdi with his hands tied.

In those days, comrades have provided me with an accommodation a bit higher than Osama and his friends. I was told to avoid meetings, interviews and contacts with strangers. I was feeling those days as if my hands were tied. With regard to that situation, I clearly understood the interpretation of the dream. I told them (Osama and others around the table): According to Quran, there is a hadi and mahdi (both meaning spiritual guide, but the latter also referring to the Islamic messiah) for each nation. It is possible that God has bestowed me with the honour to become the hadi for this nation, but they have tied my hands here.

Hekmatyar, Khubuna aw Taʿbirona , pp. 87, Adobe Digital Edition)

(3) Examples of the few Hezb attacks that made it into the headlines include: a February 2014 attack which killed two contractors for the US-led military coalition and wounded several Afghan civilians in Kabul; and a suicide attack which killed fifteen people, nine Afghans and six foreigners again in the capital in May 2013.

(4) The mapping out of political and military organisations onto ethnic communities has been seen in Afghan politics and the conflict since at least the 1970s. See, for example, the original Hezb-e Islami/Jamiat-s Islami split within Afghan Islamists and within Afghan communists in the 1970s (which mapped out onto differences between Pashto and Tajik speakers) or the way mujahedin groups emerged, again with ethnicity as one factor in their make-up, or the way members of the failing government of Dr Najib defected to mujahedin groups based on their ethnicity, with Khalqis tending to join Hezb and Parchamis joining Jamiat, or the bitter way that factional control of neighbourhoods in Kabul during the civil war played out in ethnic violence directed at civilians associated with ‘enemy’ factions.

(5) As noted in previous AAN dispatches, Shura-e Nezar was the most powerful sub-group of the broad ‘Jamiat family’. It was basically a network of Jamiat-related military commanders established during the anti-Soviet guerrilla war by Ahmad Shah Massud to make the military struggle more effective and in not-so-open opposition to Ustad Rabbani’s political leadership. Although officially disbanded, it is still a powerful network. Massud’s brothers (Ahmad Zia and Ahmad Wali) as well as Dr Abdullah and former interior and defence ministers Yunus Qanuni and Bismillah Muhammadi belong.

(6) Hekmatyar’s message was replete with veiled references against those he chastised as “a small clique” (tolgey in Pashto) whom he accused of having clung to power with the support of foreign troops. He left little doubt as to whom he was referring to. Hekmatyar has used the same term in past messages, interviews and articles to refer to his longstanding political rivals Shura-e Nezar/Jamiat-e Islami.

For an overview of AAN’s past reporting relevant to Hekmatyar’s return, see this overview. 

UNAMA’s latest two-yearly report on the use of torture by the Afghan state shows an increase in the proportion of conflict-related detainees who were tortured, compared to 2015, when UNAMA last reported. There has been, it said, no end to the “pervasive culture of impunity” for those carrying out torture. As AAN’s Kate Clark reports, UNAMA’s report has come two days before government officials are due to appear before an expert committee under the auspices of the Convention against Torture, and while Afghanistan is waiting to see if the International Criminal Court will launch an investigation into Afghan state forces’ use of torture.

AAN’s Detentions and Torture Dossier (2014) brings together our work on detentions and ill-treatment of detainees, including by the Afghan state, American forces on Afghan soil and of Afghans in the United States detention facility in Guantanamo Bay. They include dispatches on UNAMA’s previous reports on the treatment of conflict-related detainees in 2011 and 2012, while our analysis of its 2015 report can be read here. For an overview of the measures taken by the Afghan government before the 25-26 April Convention against Torture committee hearings, see this AAN dispatch.

UNAMA’s latest report on the treatment of conflict-related detainees shows that the government has not yet taken the difficult, but necessary steps to reduce the use of torture. The state is still not prosecuting those carrying out torture in its detention facilities. They face little risk even of disciplinary action, let alone being put on trial for what are criminal offences under Afghan law. It is not surprising then to see that the incidence of torture has risen since UNAMA last reported in 2015. UNAMA does recognise that the government is under an imperative to counter terrorism, but says this can be done “without infringing on fundamental freedoms [and] whilst protecting the rights of all Afghans.”

The use of torture and other forms of prohibited ill treatment as a tool for obtaining confessions is a dangerous paradigm that undermines broader peace-building efforts. Torture does not work – it is an unreliable and ineffective tool for gathering accurate information. Notwithstanding the destructive nature of such practices on long term stability, torture is illegal, immoral and wrong.

UNAMA report page 12

What is in the report?

In the last two years (January 2015 to December 2016), (1) UNAMA found that the proportion of detainees who gave “credible and reliable accounts” (2) of having experienced torture or other forms of prohibited inhuman or degrading treatment was higher than in 2015: 39 per cent of those interviewed, compared to 31 per cent two years ago. The Afghan Intelligence Agency (the NDS) and the police (both Afghan National Police, ANP and Afghan National Border Police, ANBP) were the main culprits, although the Afghan Local Police (ALP) and Afghan National Army (ANA) also featured. (3) UNAMA said that 45 per cent of those held by the police gave credible reports of having been tortured – the highest rate since UNAMA began monitoring in 2010 and an increase of 14 per cent since 2015. This was, said UNAMA, a “significant and disturbing development.” The incidence of torture by the NDS was also up, by three per cent. As for children, almost half (45%) of juvenile detainees (under 18 years of age), gave ‘credible reports’ of having been tortured. This is a higher proportion than for adults.

The most common forms of ill-treatment described to UNAMA (page 7) were: 

[S]evere beatings to the body (including with sticks, plastic pipes and cables), beatings to the soles of the feet, electric shocks (including to the genitals), prolonged suspension by the arms and suffocation (both using plastic bags and through forced immersion in water.) Other reported forms of torture and ill-treatment included the wrenching of testicles, use of cigarette lighters to burn the soles of the feet, prolonged use of stress positions, sleep deprivation, sexual assault and threats of execution.

UNAMA found that, as previously, torture is almost always aimed at gaining a confession and ceases after detainees sign or thumb-print a statement. UNAMA said that many detainees said they had not understood or could not read what was written on the ‘confession’ and almost all said they had had no access to a lawyer before they signed it. Part of the impetus for the widespread use of torture in Afghanistan is that courts are happy to convict on the basis of a confessions in the absence of any other evidence.

NDS torture

UNAMA’s monitoring indicates that torture is “systematic” (carried out on more than half of detainees) in NDS facilities in Kandahar and Farah and “regular and prevalent” (more than a third) in NDS Herat and Nangarhar and in Directorate 241 in Kabul (Counter-Terrorism). It said it also had “sufficiently credible and reliable reports of torture in NDS custody recorded in 17 other provincial and national NDS facilities.” (4) Almost one in five of those saying they had been tortured by NDS officials – 20 in all – were juveniles.

All 20 children stated that they were severely beaten kicked or punched during interrogation. One 16 year old detainee was beaten unconscious. A 15 year old boy lost consciousness after a NDS interrogator stood on his neck whilst he lay on the floor. His clothes were soaked with blood due to injuries sustained during the beating. One boy was dragged by his hair around the cell and beaten with a chain. Another was repeatedly soaked with water and forced to stand in his wet clothes.

UNAMA report page 29

Torture by the police

As for the police, 45 per cent of detainees held in Afghan National Police or Afghan National Border Police custody who were interviewed over the last two years “gave credible reports of having been subjected to torture or other forms of ill-treatment whilst in detention.” UNAMA singles out the police in Farah, Herat and Nangarhar (where 54 per cent of detainees were tortured) and especially Kandahar (91 per cent) as particularly bad. It also said that 33 detainees in ANP/ANBP facilities in 18 other provinces had experienced torture or ill-treatment.

The worst places for torture

Kandahar features – as it has every year in UNAMA reporting since 2011 (see AAN analysis here) – as the worst place for torture in Afghanistan. Six out of every ten people held by the NDS there and interviewed by UNAMA gave ‘credible accounts’ of having been tortured, while for the police, the figure was nine out of ten. Kandahar is the worse NDS site in the country for torture, with methods reported to UNAMA including:

…being beaten with either cables or plastic pipes, including on the soles of the feet. Two detainees reported either being hit in the testicles or having their testicles squeezed by NDS interrogators, causing blood to appear in their urine. Other methods of torture and ill-treatment documented in NDS Provincial headquarters in Kandahar included use of electric shocks, stress positions, and sleep deprivation.

UNAMA report page 25 

According to UNAMA, Kandahar’s police were using torture on most detainees and with particular brutality:

The methods of torture described by detainees held in ANP Kandahar were particularly cruel and included suffocation resulting in loss of consciousness; crushing the testicles; having water forcibly pumped into the stomach; being suspended from the ceiling by the arms or by the feet; having bricks or other heavy weights tied to the testicles; and electric shocks – including to the genitals. Detainees also reported having their heads held under water for extended periods, having pepper pumped into their rectum, being forced into stress positions, being stripped naked and threatened with rape, and having the soles of the feet burned with a cigarette lighter.

UNAMA report page 33 

As in UNAMA’s 2015 reporting, there were, again, allegations that the ANP in Kandahar is responsible for “a series of unexplained disappearances and extra-judicial killings of suspected insurgents in Kandahar.” Several sources, UNAMA said, had provided it with “accounts of their relatives or members of their community ‘disappearing’ after being arrested by uniformed ANP in Kandahar city, with the Provincial Chief of Police [Abdul Razeq] subsequently denying any knowledge of their whereabouts.” One individual, it said, had given a credible account of being held incommunicado for six to eight months following his arrest by Kandahar ANP on suspicion of being a member of Taliban. “During that time he was held in various ‘informal’ places of detention, including the basement of a private house, and was questioned on at least one occasion during his time in informal detention by the Kandahar Chief of Police.”

The most powerful security official in the south, Kandahar’s Provincial Chief of Police, Abdul Razeq, has been repeatedly accused of carrying out atrocities since 2006 in detailed investigative reports (see here, here and here). Earlier this year, AAN also revealed that he had officially been named under the United States Leahy Law as having carried out gross violations of human rights. This law aims at stopping support to units of foreign security forces if they or their commanders are ‘tainted’. However, what penalties Razeq or the Kandahari police under his command have suffered because of the Leahy Law have been difficult to discern.

Other places with a high incidence of torture by both police and NDS are Farah, Herat and Nangarhar. In Kabul, a site which is a perennial location for torture, again features in UNAMA’s report. In the Counter-Terrorism Directorate of NDS in Kabul (now numbered 241, but previously numbered 124 and 90, and in historical accounts of war crimes going back to the 1980s, 5), 15 out of the 34 detainees interviewed (44%) gave UNAMA ‘credible reports’ of having been tortured. Six of the 34 were children and, of those, four reported torture. The incident rate has “increased markedly” since 2015, says UNAMA, and now borders on the ‘systematic’. Methods of torture are familiar, not just from the last seven years, but back to the 1980s. UNAMA says that at NDS 241:

Fourteen of the detainees reported being beaten, punched or kicked during interrogation, with some reporting multiple and systematic beatings over several days. Techniques included beating with chains, cables and hose-pipes, and beating to the soles of the feet. Two detainees complained of having their heads smashed against the cell wall by interrogators. One detainee stated that he was strangled until he lost consciousness. The following day, he was woken at 2am and forced to stand under a cold shower for 10 minutes. Another detainee reported having been subjected to electric shocks while immersed in water. Detainees also reported being threatened with beatings, sexual assault, and attack by dogs.

UNAMA report page 28 

The other facility in Kabul which used to show reasonably high levels of torture until 2015, is NDS 501 (formerly 40). Investigations continued to show low rates of abuse. However, as in 2015, a high proportion of detainees (27 per cent) reported having been tortured prior to arriving there (detainees typically come from NDS 241).

The Government action plan on torture

The persistent and, for the police, sharply rising incidence of torture is disappointing given that President Ashraf Ghani came into office appeared genuinely appalled by the practice. “This is a vicious cycle,” said Ashraf Ghani, after official confirmation came in December 2014 of the extent and brutality of CIA torture in black sites on Afghan soil to interrogate and torture Afghan and foreign suspects. “When a person is tortured in an inhumane way,” he said, “the reaction will be inhumane.” After reading Human Rights Watch’s 2015 investigation into abuses carried out by Afghan strongman with impunity, he also reacted strongly, saying (told) his government “would not tolerate torture,” and that he was committed to addressing the issue.

After UNAMA’s 2015 report, the government made various pledges to take specific actions to tackle torture, but these pledges have either only been fulfilled in recent weeks – in the run-up to the CAT committee hearing – or they were fulfilled, but have had no impact on the incidence of torture. UNAMA goes into some detail about government actions since 2015, many of which came within the framework of a National Plan on the Elimination of Torture.

New Laws

The pledges made in the action plan include a new penal code which uses a definition of torture closer to the internationally-accepted definition set out in the Convention against Torture and a new anti-torture law (both finalized in 2017). The penal code was passed by the cabinet, the second by the Anti-Torture Law Committee of the Ministers. (Detail on the anti-torture law can be read about in AAN’s last dispatch.

Another new piece of legislation, however, has increased the vulnerability of security detainees to torture. Amendments to the Criminal Procedural Code (passed originally as presidential decree 76 on 19 October 2015

(see AAN analysis here) and then, with amendments by parliament on 11 May 2016). This piece of legislation extended the time that those suspected of terrorist offenses and offenses against internal and external security can be held initially for 10 days and then with judicial permission for a further 60 days. Crucially, this can now happen without the suspect appearing in court or having any chance to argue his case. (5) This “severely limits judicial oversight of conflict-related detainee,” says UNAMA, “during the period when they are most vulnerable to ill-treatment, and increases the risk that such ill-treatment will remain undetected.”

Afghanistan has also signed the Optional Protocol to the Convention against Torture (CAT) and withdrawn its reservation to article 20 of CAT. These two actions allow the CAT committee to follow up on allegations of torture and for individuals to make complaints. For more detail, see our last report.

Monitoring

 UNAMA also analyses the work of various monitoring and investigation bodies, some of them new. In January 2016, NDS set up a new Directorate of Gender and Human Rights, numbered 13. It deploys its own human rights officers to 29 NDS facilities at provincial and national level. NDS 13 is authorized to monitor, investigate and refer cases for prosecution. However, perpetrators were “mainly punished,” said UNAMA “through dismissal, written warning, verbal warnings, salary deductions and other administrative punishments.” UNAMA also said that one NDS provincial director and three deputy NDS provincial directors have reportedly been dismissed. However, none of what were to NDS 13 ‘proven’ cases of torture and abuse by senior NDS personnel appeared to have been referred to the prosecutor’s office for further investigation. (6)

The Gender and Human Rights Department of the Ministry of Interior (established in 2013) is also authorised to monitor detention centres, investigate human rights violations and refer appropriate cases for prosecution. However, says UNAMA, unlike NDS 13, its officers are recruited at the provincial level and are not independent of provincial and regional police chiefs. UNAMA is aware that some allegations have been referred to the ANP Criminal Investigation Unit, but does not know of any subsequent case of prosecution.

Investigations and Bringing Cases to Court

UNAMA did manage to get some figures on the outcome of investigations into alleged crimes by members of the security forces, but they were not necessarily for torture and the numbers look low. Nor was it clear if cases had been sent to the prosecutor, or if they had resulted in convictions of acquittals. In general, the Ministry of Defence seemed to have the strongest record on bringing serious criminal cases committed within its ranks to court.

UNAMA welcomes these and other (8) monitoring efforts, but notes that the bodies “appear to lack the required authority and independence to carry out meaningful investigations into allegations of torture or other forms of ill-treatment.”

Other individuals who might be able to act when they see evidence of torture are defence lawyers, judges and doctors working in the Ministry of Interior and NDS. None were fulfilling this oversight role. Access to defence lawyers, for example, has not improved since UNAMA’s last report, and where detainees did have access to legal counsel, that did not necessarily help with reporting torture.

Many lawyers indicated to UNAMA that they believed it was futile to raise the defence that a confession had been obtained under duress. In their experience, judges, particularly at primary court level, either did not consider the allegations of torture, or dismissed them on the grounds that there was no physical evidence that torture had taken place.

UNAMA report page 46

Redress and Compensation

Another theme in the national action is redress for victims. Compensation is referred to in the new anti-torture law, but without any specific mechanisms mentioned. As to redress, UNAMA said it could not identify any examples in the last two years of victims of torture or ill-treatment who had enjoyed access to any form of effective domestic remedy.

UNAMA acknowledges what it calls “the genuine efforts made by the Government to address concerns over the treatment of detainees, and steps taken to implement the [national plan], particularly with regard to enacting legislation, issuing policies and establishing and developing mechanisms for internal human rights oversight within its law enforcement and security institutions.” Nevertheless, it said “administrative punishments for ill treatment do not serve as an effective – or lawful – deterrent, compared to a punishment in accordance with existing domestic law.” The National Action Plan has, as yet, failed to produce any reduction in the use of torture.

The Convention against Torture (CAT) committee and possible International Criminal Court investigation 

Tomorrow (25 April), UN officials, the Afghan Independent Human Rights Commission and NGOs will be briefing the CAT committee in Geneva on Afghanistan’s record on torture. The following day, government officials will address the committee. The UNAMA report will not help to make the case that the government is working seriously to eliminate the use of torture by state forces.

Then, looming over everything is the threat of investigation by the International Criminal Court (ICC) into Afghan state forces’ use of torture. In November 2016, the ICC said it would be considering whether to investigate Afghan forces, and separately US forces, for their use of torture in Afghanistan, and the Taleban for a range of war crimes (read AAN analysis here.

One of the pre-requisites for the ICC launching an investigation is that the government of a country is unwilling or unable to itself prosecute war crimes or crimes against humanity. Following the ICC’s November 2016 report, the Afghan government did appear finally to wake up to the risk of coming under ICC investigation. It has started cooperating with the OCP and is now giving information to it. This year, UNAMA said, it had provided the OTP with a ‘Roadmap for Cooperation’, together with preliminary information on 22 cases which the OTP had previously requested, and is now busy compiling additional information for the OTP. Some of the recent legislation, including the Optional Protocol to CAT, also seem aimed at convincing the ICC of the Afghan state’s willingness to act against torturers. (More detail on the latest developments on the ICC will be given in a separate, forthcoming dispatch.)

Going by UNAMA’s report today, however, the Afghan government is not yet able to show itself willing or able to take the necessary, hard steps to stop torture happening in its detention facilities. Until senior officials are prosecuted, and torturers fear judicial punishment according to Afghan law, it is difficult to see how the pervasive culture of impunity will ever be dented. So long as there is no risk for those carrying out torture, Afghan citizens will continue to be abused at the hands of their own security forces.

 

 

 

(1) UNAMA’s 2017 report is based on interviews by UNAMA human rights officers with 469 conflict-related detainees in 62 detention facilities in 29 provinces across Afghanistan, carried out between 1 January 2015 and 31 December 2016. Of the 469 detainees interviewed, 378 were adult males, six were adult females, and 85 were children under the age of 18. The women were being held in NDS detention, but had not been accused of any offense or been tortured.

UNAMA’s 2015 report covered the period 1 February 2013 to 31 December 2014 and was based on interviews with 790 pre-trial detainees and convicted prisoners detained by the NDS, ANP, ANBP, ANA and ALP.

(2) See pages 19-22 of the report for an explanation of UNAMA’s methodology and especially footnote 45 on page 20 for a description of how detainees are interviewed and what is the best practice for ensuring human rights officers get true accounts of what has happened.

(3) UNAMA found some cases of torture by the Afghan National Army, but the sample was statistically too small to know how representative it might be. It also reported cases at the detention facility at Bagram (Parwan) which is under Ministry of Defence control. It round that guards, “may be using physical violence and intimidation as a means of maintaining order in a facility that is near to its capacity, and in an environment where the ANA guards – who are not trained corrections officers – see their role purely as containing a potential security threat.”

(4) UNAMA attributes the trend towards an increased use of torture by NDS to “significant increases in the credible allegations of torture and ill-treatment observed in NDS facilities in Herat, Kandahar, Nangarhar and NDS 241 in Kabul, combined with continued high levels of such cases documented at NDS Farah.”

(5) After 72 hours in police or NDS detention, the prosecutor had previously been allowed to request additional time for the investigation. The 2014 Criminal Procedure Code (article 100) allowed a judge to accede to a request for an additional seven days in the case of misdemeanours and 15 days for felonies. Under the 2015 amendments to the Criminal Procedural Code, for terrorist offenses, these seven additional days for investigating misdemeanours turned into 30 days, and the 15 days for felonies into 60 days (ie from two weeks to two months). A person suspected of involvement in a terrorist crime can now spend up to 70 days in custody before seeing a judge. Under the Criminal Procedure Code before it was amended, a total of 78 days of pre-trial detention was possible, but the last 60 days had to have been approved by a judge and required the suspect and his or her defence lawyer to come to court.

(6) UNAMA also has concerns that members of NDS 13 have been posing as independent human rights monitors in order to gain the confidence of detainees. At least one man, it said, had been subsequently beaten as a punishment for talking to the ‘human rights officer’ by his alleged torturer. Even though, from UNAMA’s account, it seems that the impetus to deceive was without malintent, the practice could create problems for independent organisations –UNAMA, the Afghanistan Independent Human Rights Commission (AIHRC) and the International Committee of the Red Cross (ICRC) – who have a mandate to speak to detainees in confidence; it is potentially destructive to human rights access. UNAMA said the director of NDS 13 has said he would issue instructions to staff to properly identify themselves to detainees.

(7) UNAMA reported the following figures:

Ministry of Interior: 46 cases (12 by ANP, 32 by Afghan Local Police (ALP), and two by ‘National Uprising militias’) referred to the prosecutor. This was for a wide variety of offences with nine apparently related to torture (four by ANP and five by ALP). The higher incidence of ALP cases may reflect better internal reporting mechanisms, rather than a higher incidence of torture. UNAMA had no update on prosecutions, apart from one acquittal, but said the ministry was seeking to provide more information.

NDS: 5 cases referred to the prosecutor, including 3 from Directorate 241. One person has been acquitted; the other cases are ongoing. Again, it was not clear how many of these cases were to do with torture.

Ministry Of Defence: 22 cases of serious crimes referred to the prosecutor, including the deliberate killing of civilians, beating to death of prisoners of war, and committing violence against women. Again, it was not clear if any were to do with torture. UNAMA said that the Ministry of Defence “does appear to be taking concrete steps to ensure that ANA personnel found to have committed serious crimes are brought to justice.”

(8) Other oversight mechanisms include the Office of the Police, Defence and Security Forces Ombudsman, set up in 2011, which tends, UNAMA says, to resolve even credible allegations of torture by internal disciplinary measures. In recent days, a “Prevention of Torture Commission” has also been set up. An obligation under the Optional Protocol to the CAT is to set up a ‘National Preventive Mechanism’ which is mandated to visit places of detention. However, those sitting on Afghanistan’s Prevention of Torture Commission include senior representatives from those organizations currently practicing torture – the NDS, and ministries of interior and defence. The commission lacks, said UNAMA, “the functional independence that is a pre-requisite for an effective National Preventive Mechanism as foreseen by the Optional Protocol.”

 

 

On 24 and 25 April 2017, Afghanistan’s record on torture will be reviewed by a committee of experts under the auspices of the Convention Against Torture (CAT). The CAT Committee will hear from the government, United Nations human rights officials and NGOs before making recommendations. In the weeks leading up to the committee meeting, the government has been scrambling to put new legislation and mechanisms in place, but it may not be enough to deflect criticism. UNAMA has already said there has been an increase in the use of torture since its last report in 2015, and perpetrators are still not being prosecuted, or even sacked. AAN’s Kate Clark (with input from Sari Kouvo and Ehsan Qaane) here answers some questions on how the CAT Committee works, how the government is defending itself and what Afghanistan’s record on torture is.

This research is supported by a grant from the Open Society Foundations. 

AAN’s other reports on detentions and torture can be found in our Detentions and Torture Dossier. It bring together dispatches and reports on detentions by United States forces on Afghan soil and by the Afghan state, and the detention of Afghans by the US in Guantanamo Bay.

How does the Convention Against Torture work?

 Afghanistan signed the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in 1984 and it came into force in 1987. The Afghan constitution recognises the country’s commitments under international law and confirms its obligation to comply with them. (1) A committee overseeing the implementation of the Convention is due to review Afghanistan’s record on torture on 25 and 26 April 2017 (See the agenda and read documents here (read them here.) The committee is made up of independent experts selected from different United Nations member states and meets regularly in Geneva where it is serviced by the Office of the UN High Commissioner for Human Rights. Its main obligations are: dialogue with member states on their periodic reports; dealing with complaints from states that have accepted the individual complaints procedure (ie states that have signed and ratified the CAT Optional Protocol – more of which later); and developing and adopting general comments that are interpretative statements about the implementation of the Convention, (see here for detail on Afghanistan’s session).

According to the CAT, all state parties should regularly report to the Committee. Afghanistan did submit its initial periodic report in 1992 – during the civil war! – but there was then a long, long lapse. In 2010, the CAT Committee issued a request for “Specific information on the implementation of articles 1 to 16 of the Convention,” a list of questions and issues which it wanted Afghanistan to address. Afghanistan responded to these in a report dated May 2016. It was the first report prepared by the Afghan government and submitted to the CAT Committee in a quarter of a century.

The government’s response to the CAT Committee involved a lot of listing of laws as evidence of action, rather than actual action. It ignored many requests for specific information or obfuscated in its answers. For example, question 2 from the CAT committee asked for “current criminal provisions concerning offences such as attempted acts of torture, instigation or consent of torture or the order to commit torture by a person in authority and the exact penalties imposed for any of these offences” and the number and nature of the cases (including geographical location of the offences prosecuted) and the penalties imposed or the reasons for acquittal. The government just described the law, giving no information about how – or indeed whether – it had actually been carried out. (2)

However, there is a tradition within the UN human rights treaty body system of civil society and other groups submitting what are called ‘shadow reports’. These are alternative reports that can clarify or, as needed, challenge the information provided by the government. Human Rights Watch, Open Society Afghanistan and the Civil Society and Human Rights Network (CSHRN) in cooperation with eight other Afghan civil society organizations have submitted such reports. The CSHRN’s report, which is the first report in its kind submitted from Afghan civil society to the CAT Committee, says the government’s response to the Committee “falls short in addressing the most pressing issues when [the report] comes to the absolute prohibition of torture and other ill-treatment.” The biggest challenge, it says, “remains the implementation of existing laws.” The Afghan Independent Commission for Human Rights (AIHRC) has also submitted its investigations into state agencies’ use of torture.

What will happen at the CAT Committee sessions? 

On 25 April, there will be a closed session with the Committee being briefed by UN human rights officials who are based in Kabul, followed by private sessions with the AIHRC and then with NGOs. On 26 April, at a public session at which anyone who is accredited can attend, government officials have their chance to answer questions and make statements; members of the delegation include the Attorney General, deputy interior and justice ministers and human rights officials from various ministries (see the agenda here).

The Committee’s ‘concluding comments’, a set of recommendations to the Afghan government, should be published on 12 May 2017. The government is expected to follow up on the recommendations and show how they have been addressed when their next periodic report is issued.

What is the ‘status’ of torture in Afghanistan?

Torture is illegal in Afghanistan in multiple ways:

Penal Code 1976

If the public service official tortures the accused for the purpose of obtaining a confession or issues an order to this effect, he shall be sentenced to long imprisonment.

October 7, 1976; 15 Mizan 1355), Art 275

Constitution of Afghanistan 2004

No one shall be allowed to order torture, even for discovering the truth from another individual who is under investigation, arrest, detention or has been convicted to be punished.

January 26, 2004 (6 Dalwa 1382) Art 29

Presidential Decree No 129 To Implement The Afghan Fact-Finding Delegation’s Suggestions On The Presence Of Torture And Ill-Treatment In Detention Centres

The Attorney General of the Government of the Islamic Republic of Afghanistan is ordered to prosecute those who violate article 51 of the Prisons and Detentions Law [3] in the light of the findings of the delegation’s report which has reported on the torture and mistreatment of detainees and prisoners, this in order to prevent torture and mistreatment and the conviction of any innocent detainee in the future.

Issued by Hamed Karzai, 16 February 2013 (28 Delwa 1391), art 1

(Read the text at the end of this dispatch)

Criminal Procedure Code 2014

… the judicial police officer, prosecutor and court themselves or through means of another person, in any case, are not allowed to force the suspect or accuse to confess using misconduct, narcotics, duress, torture, hypnosis, threat, intimidation, or promising a benefit. If the statements of the suspect or accused person are taken in violation of the provision set forth in paragraph of this article, they shall not be admissible. 5 May 2014 (28 Saur 1393), art 22

Last month, Ashraf Ghani introduced another presidential decree prohibiting torture – more of which later.

However, lack of legislation has never been the reason why torture carries on in Afghanistan. The problem is that the law is not implemented. Perpetrators are rarely prosecuted, or even sacked or demoted, and this encourages a culture of impunity. Moreover, the drive to torture is embedded in the Afghan criminal justice system which accepts confessions only, without any other supporting evidence, as enough to convict people. Many in the security ministries, including at the highest levels, also believe that ‘torture works’. The use of torture has a long history, featuring in war crimes reporting of all governments and most armed groups, some of whom have had their own quasi-criminal justice systems, with prosecutors and judges. Current locations and methods are usually familiar, appearing throughout the historical reporting of torture between 1978 and 2001.

Who has reported on torture in Afghanistan?

In recent years, systematic reporting on the conditions of security detainees has been carried out by UNAMA under its Security Council mandate and the AIHRC. These are the only two organisations with the authorisation and reach to be able to, first, get into places of detention to speak to prisoners and, secondly, do that across the country.

The International Committee of the Red Cross also has a mandate to visit detention facilities and speak to those being held. It works behind the scenes speaking to the authorities to ensure detainees are treated humanely. It does not report publicly on its findings.

What have investigations found and what has been their impact?

The UN’s 2011 report (see AAN analysis here) was the first systematic investigation into the conditions of conflict-related detainees in Afghanistan.(4) As AAN reported :

The types of torture most commonly reported by detainees to UNAMA were beating, especially with rubber hoses, electric cables or wires or wooden sticks and most frequently on the soles of the feet, and suspension, being hung from bars or chains for lengthy periods. Less common, but still widespread, were the twisting of the penis and wrenching of the testicles, and threats of sexual abuse, electric shocks, forced standing, and the removal of toenails.

UNAMA found that torture was systematic (ie more than half of those interviewed reported having been tortured) in the provincial NDS facilities in Herat, Kandahar, Khost and Laghman and NDS’s Counter-Terrorism Directorate in Kabul. In another 15 NDS facilities, a quarter of those said they had been tortured. Torture at the hands of the Afghan National Police (ANP) was also reported.

An investigation by the AIHRC/Open Societies Institute published a few months later in early 2012 (see AAN analysis here) echoed and reinforced the findings of the UNAMA report of the previous year. In addition, it found evidence of possible complicity by the CIA and US Special Operations Forces in the actions of the Kandahar Strike Force, an informal, ‘counter-terrorism’ militia operating in southern Afghanistan.

The government denied there was anything wrong. However, the reports did have a knock-on effect. Transfer where there is a substantial risk of torture is also illegal under the CAT (the legal principle of non–refoulement). The international military mission, ISAF, had turned a blind eye to the fact that detainees it was transferring to NDS were being tortured (even after public enquiries and legal challenges in some member countries, including Canada and the UK. It was only the publication of the UN 2011 report – and the publicity surrounding it – which finally forced ISAF to take action. It had the clout to be able to insist on monitoring, training and certifying NDS facilities, blacklisting those where there was a record of torture – although it only monitored those detainees it transferred.

However, UNAMA’s next report in 2013 (see AAN analysis here) found that torture was as extensive as ever (as AAN reported). The then ISAF commander, General John Allen, admitted failure, saying their influence over Afghan behaviour was limited. The fundamental problem, said UNAMA, was that virtually no official had been held to account, either by sacking or prosecution.(5)

… torture cannot be addressed by training, inspections and directives alone but requires sound accountability measures to stop and prevent its use. Without effective deterrents and disincentives to use torture, including a robust, independent investigation process or criminal prosecutions, Afghan officials have no incentive to stop torture.

The government accused UNAMA of exaggeration, with NDS saying it treated detainees according to “humanitarian and legal principles.” Even so, soon after, President Karzai ordered a fact-finding investigation and issued a decree criminalising what was already, in multiple ways, illegal. ISAF also strengthened its system of oversight of transferred detainees. UNAMA’s 2015 report (see AAN analysis here) did find a substantial – 14 percent – reduction in incidents of torture. Perpetrators were still largely being left in place, but it seems ISAF action had led to a reduction – or possibly re-location – of torture.

Are there locations that appear repeatedly in the reporting on torture?

The NDS Counter-Terrorism Directorate, is regularly named as a site of torture (it appears as the Fifth Directorate in historical reports on torture and has subsequently been renumbered 90, then 124 and most recently, AAN was told, 241). This directorate is located in the Shashdarak area of Kabul, a neighbour to the Afghan ministry of defence, ISAF and then Resolute Support headquarters and the United States Embassy.

Kandahar, both NDS and police (central and local stations), also appears regularly. In 2013, for example, half of all detainees held by the ANP in Kandahar said they had been tortured and it represented a third of the cases nationwide. This is also where 81 detainees had, in that reporting period, allegedly disappeared. “Multiple sources,” said UNAMA, “shared concerns that some detainees may have been killed in police custody [in Kandahar] following arrest.” Then, as now, the ANP in Kandahar is under the command of General Abdul Razaq. He already had a long list of credible and well-sourced allegations of abuses and crimes to his name (see here, here and here). The US and many in government feel that, despite the atrocities, Razeq’s presence is necessary to secure the south. (6)

What has happened since Ashraf Ghani took power?

Soon after Ashraf Ghani became president, it was officially confirmed that the CIA had tortured Afghans and foreigners in black sites on Afghan soil in the early years of the ‘War on Terror’ Ghani appeared genuinely horrified, calling the revelations shocking and inhumane:

“This is a vicious cycle. When a person is tortured in an inhumane way, the reaction will be inhumane,” Ghani told a specially convened news conference in Kabul. “There can be no justification for these kinds of actions and inhumane torture in today’s world.”

He also told Human Rights Watch after reading its 2015 investigation into Afghan strongman and impunity that the “Afghan government would not tolerate torture,” and he was “committed to addressing allegations of torture.” Since then, there have been promises to take action, but apparently not much else. Such promises were made in the context of the European Union-Afghanistan Human Rights dialogue, so that, on 15 June 2015 (link now taken off the website) and again on 1 June 2016, the government said it would:

In accordance with the National Action Plan to prevent torture:

• Ratify the CAT Optional Protocol and sign it at the UN General Assembly in September 2015, (repeated for September 2016) (Read the text of the Optional Protocol here)
• Establish an Independent Oversight Mechanism (National Preventive Mechanism) by November 2015 (repeated “within a year of the ratification of the CAT Optional Protocol”)
• Strengthen the role of the Ombudsman Office within the AIHRC, with a Memorandum of Understanding to be signed with the Ministry of Interior by September 2015 (repeated with the MoU to be signed by the ministries of interior and defence, and the NDS by July 2016 and instructions on the Ombudsman to be sent to all units by September 2016)
• Have the Ministry of Justice draft and finalise a law on the prevention of torture by February 2017 (in 2016 dialogue only)

None of these actions were taken at the time.

 Are there recent reports on torture and has the government taken any recent actions?

UNAMA is due to issue its latest two-yearly report on the treatment of conflict-related detainees. Publication is likely to be just after the CAT Committee sessions, but as the UN will be briefing the Committee in a closed session, the experts will have full disclosure of what is in the report. A sense of what is likely to be in it came in a report of the UN Human Rights Council on 11 January 2017:

UNAMA found that the detainees had experienced torture or ill-treatment at levels exceeding those documented in its 2015 public report. In most cases, the authorities used torture and ill-treatment to extract a confession. While the majority of documented cases related to incidents allegedly carried out in National Directorate of Security facilities, UNAMA also noted a significant increase in the use of torture and ill-treatment by the Afghan National Police. Since December 2015, the Government has made little tangible progress in meeting its commitments under the 2015 national plan on the elimination of torture. Notably, accountability [sic] persists for alleged perpetrators of torture and ill-treatment.

UNAMA reported restrictions placed by the government on access for its human rights officials to detention facilities, to monitor the treatment of conflict-related detainees. Although UNAMA’s 2017 report will not be published ahead of the CAT Committee, the government has been briefed and it is worried. In recent weeks, there has been a cascade of actions on preventing torture.

On 5 March 2017, President Ghani passed a twenty-article decree on the Prohibition of Torture (hard copy with AAN). It defines torture for, we think, the first time in Afghan law:

…an act which causes pain or physical or psychological suffering against a suspect, an accused or a convict or any other person for the purpose of forcing [the individual] to confess, give information or force another person to give information or to force an individual not to do an act. (art 3) 

Article 3 outlaws the commission of torture by a public service agent or official, ordering or agreeing to torture and being silent about it. It also outlaws torture commissioned because of discrimination or as a punishment. For the first time (we think) the defence of ‘obeying orders’ is explicitly outlawed, no matter what the situation (for example during wartime) (art 7). The decree outlines the penalties for those convicted of torture (higher for torturing women and children or for torture which injures or kills) and orders compensation for their victims (art 17).

The decree orders the establishment of a 15-member Commission for the Prohibition of Torture, lead by the head of the AIHRC and with representatives from the security and legal ministries, lawyers and civil society (art 12). (7) The commission can establish sub-committees to implement decisions or to follow special cases and members can directly enter detention centres and prisons without announcement. (Setting up such a ‘national mechanism’ is an obligation under the Optional Protocol to CAT.)

Off the back of that decree, a series of actions took place. On 11 April, Afghanistan was reported to have joined the Optional Protocol of CAT (neither AAN or others that we spoke to have yet seen any document related to this). The Optional Protocol allows for the establishment of a system whereby “independent international and national bodies” can undertake regular visits “to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.” The government also decided to withdraw Afghanistan’s reservation to article 20 of CAT. This gives the CAT Committee permission to request investigations into torture if it “receives credible information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State Party.” Finally, on 18 April, as ordered under the presidential decree, and as obliged by the Optional Protocol to CAT, the AIHRC-led Commission for the Prohibition of Torture was set up.

Will any of the recent government actions convince the CAT Committee of the seriousness of its intent – or actually reduce torture?

Given the comments about torture made to the UN Human Rights Council in January 2017, it can safely be said that the latest UNAMA report will show an increase in the use of torture since its last report in 2015, as well as a continuing absence of accountability.

One senior government official who spoke to AAN questioned UNAMA methodology and said Taleban detainees lied to defame the government. This is the regular line made by the government each time UNAMA or others have reported on the state’s use of torture. At the same time, the official admitted to AAN that it was hard to reduce torture. There was, he said, an institutional belief in its effectiveness, a belief that, without torture, the state cannot get convictions and that ‘terrorists’ will be released and be able to attack again. There is also, he said, the institutional capacity to carry out torture. Even pressure by ISAF, he said, had managed to achieve only a “dip” in the cases of torture. He claimed the government was serious this time and pointed to the Department 13 of the NDS as involved in investigations, saying three investigations were ongoing with all three individuals concerned removed from their posts. He also said the government could not publicise what it was doing on torture because many Afghans thought it good to torture ‘terrorists’. The mix of responses – UNAMA is hoodwinked by lying detainees, some in the administration think that torture works, it’s hard to stamp out, but it’s not happening – are very familiar.

As to the slew of recent government measures, all, on paper, are positive, bringing Afghanistan to a very high international standard in terms of the law. The new decree on torture is undoubtedly much better drafted than previous laws, introducing key notions such as that ‘obeying orders’ is not a defence for carrying out torture. On paper, there should now also be much greater access for national and international bodies to monitor and investigate torture.

However, as with the government’s written response to the CAT Committee which focussed on laws, rather than actions, these measures may not convince the Committee that the government is serious about reducing and eliminating the use of torture by state agencies. It is impossible to see how these laws and measures, however good they are, can by themselves lead to any reduction in the use of torture. For that to happen, perpetrators would need to fear the consequences of torturing people. Successive UN and other reports have shown that Afghan officials are rarely held to account for committing or ordering torture. Despite the old and the new laws and the establishment of yet another oversight body, unless senior officials are prosecuted, it is difficult to imagine anything changing at all.

A postscript… Will Afghanistan’s appearance at the CAT Committee have an impact on the International Criminal Court?

Whatever decisions the CAT Committee makes will have no direct impact on the decisions of the International Criminal Court (ICC) which is currently weighing up whether or not to investigate the Afghan state over it use of torture (as well as American forces over their use or torture in Afghanistan and the Taleban for a host of alleged war crimes and crimes against humanity). (See AAN reporting here and here.) Nevertheless, the government and some of its foreign backers are concerned that a negative report from the CAT Committee could make an investigation more likely. This is something to watch.

 

(1) Signed human rights treaties also include: the International Covenant of Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Discrimination against Women, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on the Rights of the Child. In the meantime, the Afghan government has reported on its human rights obligations to other UN bodies. Afghanistan has issued a report under the UN Human Rights Council’s Universal Periodic Review process which highlighted torture and has also reported to the Committee overseeing the Convention on the Elimination of All Forms of Discrimination against Women.

(2) The government response was:

15. The Penal Code of Afghanistan has firmly prohibited the exercise of any kind of torture by a public servant in order to obtain confession etc. According to articles 4, 275, 276, 277 and 286 of the penal code the presumption of innocence is respected. Punishment contrary to human dignity, is not permissible. If a public servant resort to torture or any inhuman act in order to obtain a confession, he/she will be punished on the provisions of the penal code and will be fired from his/her job. 

16. According to Article 414 of the Penal Code, midterm imprisonment will be applied if a public servant without permission of relevant, high authorities, arrests, detains someone or bans from work. In addition to this, if an ordinary person wears a police uniform or pretends to be an official authority, arrests, detains or torture someone, he/she will be sentenced to long-term imprisonment which should not be less than ten years according to Article 415 of the Penal Code.

(3) Article 51 of the Prisons and Detentions Law enshrines the Attorney General as the competent authority to ensure prisons and detention centres observe both the law and human rights standards:

1. The Attorney General’s Office is the authorized authority to supervise the application of
   legality and controlling the observance of human rights standards in detention centres
   and prisons. 

2. Prisons and detention centres are required to consider all the demands of the concerned
   attorney with regard to the observance of the provisions of the law and human rights
   standards and take action accordingly.

(4) In 2009, UNAMA issued two major reports on arbitrary detention (of all detainees, criminal and security). Read them here and here.

(5) Some officials had been transferred, but not demoted. General Allen said ISAF had experienced the same problem; despite informing the authorities in detail of 80 allegations, only one person had suffered any consequences – a transfer.

(6) AAN recently revealed that Razeq is officially ‘tainted’ by the US Leahy Law which aims to stop foreign security forces where there is credible information that a member has committed gross violations of human rights.

(7) The members are: the head of AIHRC, head of the law department at the Ministry of Defence, head of human rights department at NDS, head of the Criminal Investigation Department at the Ministry of Interior, head of the detentions and prisons directorate, the deputy Attorney General, representatives from the ministries of foreign affairs, women’s affairs, the Commission for Oversight of the Implementation of the Constitution, the Forensic Science Directorate and civil society and the heads of the Afghan independent Bar Association and Afghan Lawyers Union.

 

 

American and Afghan forces have arrived at the site of the massive US bomb blast that targeted a complex of tunnels and caves in Achin, Nangarhar, the stronghold of the Islamic State in Khorasan Province (ISKP), on 13 April 2017. Journalists and other independent observers have not yet been allowed to enter the area, so information about the immediate impact of the 11-ton bomb, dropped in the early evening, so far still only comes from official sources. AAN’s Martine van Bijlert, Borhan Osman and Kate Clark have looked at why the US chose to drop such a colossal bomb, wondering whether it was proportionate to the threat posed by ISKP, and what its impact on ISKP and Afghanistan may be.

In the early evening (19.32) of 13 April, the US Air Force dropped what is known as a Massive Ordnance Air Blast bomb, or MOAB (nick-named the ‘Mother of All Bombs’), on a complex of tunnels held by the local affiliate of Daesh, known as the Islamic State in Khorasan Province (ISKP or, for the US military, ISIS-K). The tunnel complex is at the entrance to the Mamand Valley in the Asadkhel area of Achin district in the mountainous south of Nangarhar, which borders the Pakistani tribal areas. At 11 tons, the bomb was the most powerful, non-nuclear bomb ever to have been launched in combat. (Video of the bomb’s impact, initially posted here by the US military, can still be accessed here).

Mark Galasco, previously with the US military (he later worked on civilian casualties for the United Nations in Afghanistan) said the US military had considered using the MOAB in Iraq in 2003, but decided against it because of the anticipated civilian harm. General John Nicholson, the commander of US and NATO forces in Afghanistan, said that in this case they had been monitoring the site for days and were confident there were no civilians in the area of the blast. “As ISIS-K’s losses have mounted,” Nicholson said, “they are using IEDs, bunkers and tunnels to thicken their defense… This is the right munition to reduce these obstacles and maintain the momentum of our offensive against ISIS-K.” The Afghan government, in turn, said the attack was carried out in coordination with them and they supported it.

The number of bodies so far retrieved from the site, all judged to be ISKP, are reported to be in the dozens (local officials reported at least 90 dead), but the numbers are likely to rise. Afghan and US forces have yet to get into the ‘hole’ caused by the blast. Depending on how many fighters were killed and how senior they were, the military may be hoping this could be a ‘knock-out’ blow for ISKP.

How significant was the ISKP stronghold in Nangarhar?

Nangarhar is the only province in Afghanistan where ISKP still has a significant territorial presence. The movement captured eight districts in the south of the province in July 2015, which were later reduced to four. (Read about the reasons why this area was vulnerable to ISKP takeover – provincial government’s weakness and corruption, American bungling, Taleban fragmentation, the presence of multiple Afghan and foreign militant groups and a history of Salafism – here.)

The core of the ISKP group in Nangarhar is made up of a group of Orakzais and other tribal fighters from the Tehrik Taleban Pakistan (TTP), veterans of Pakistan’s tribal area insurgency who were pushed across the border by the Pakistani military in the Zarb-e Azb offensive, launched in June 2015. Originally ‘guests’ of the local Taleban, the Orakzais turned on their hosts in July 2015, and drove the Taleban out. As David Mansfield reported, the Taleban did regroup, with reinforcements from Bati Kot, Kot and Shinwar districts, and Mamand supporters from the local population still living in the Mamand valley. They pushed Daesh out and up the valley, Mansfield says, but there was a brutal counter attack:

The houses of what were seen as local Taliban supporters were burned to the ground, families forced to flee and those local elders viewed as collaborators were captured and executed. The result was an exodus of families relocating to the safety of their relatives’ houses in Taliban- or government-controlled areas to escape Daesh’s rule. In their stead, Orakzai and Bajauri families moved into their homes – the most prestigious going to senior Orakzai commanders.

ISKP ruled the area with particular brutality, beheading members of the Afghan National Security Forces (ANSF), closing clinics and schools, and, in what were blows to families’ economic survival, banning opium and marijuana cultivation.

Ongoing operations and an ongoing war

To a large part of the European and American public, the dropping of the MOAB in Afghanistan must have come as a surprise, as if it were a massive one-off attack. The Afghan war in general, had dropped off the radar in America, where it was barely mentioned during the 2016 presidential campaign. Even if the Afghan war is remembered, people tend to consider it as a conflict that is only 16 years old, starting with the US intervention in 2001. (AAN has had to remind interviewers on the day after the bombing that the Afghan war has now lasted for nearer to four decades). Moreover, President Obama did announce on 27 May 2014 that by the end of that year the combat mission in Afghanistan would be over. And indeed on 1 January 2015, a new NATO non-combat mission, Resolute Support, with an advise, assist and train mandate was launched. Yet, the US military, with its separate counter-terrorism ‘Freedom Sentinel’ mission always had the authority to conduct combat operations. In reality, these combat operations never stopped. The US continued to use air strikes, place Special Operations Forces ‘advisors’ on the ground and occasionally use artillery against ISKP, al Qaeda and since June 2016 also Taleban targets. (1)

In Nangarhar, the US launched air strikes against ISKP (and the Taleban) throughout 2016 and during the first few months of 2017. The strikes were in support of Afghan and US Special Forces ground operations against ISKP that took place several times during that period. The emerging pattern of these efforts, though, was that of successful offensives, with the seizure of significant territory from ISKP, followed by the inability of conventional Afghan forces to hold the ground that the Special Forces had taken. As a result, ISKP would push back and return. In several cases, ISKP brutally killed local Afghan forces after the operations had ended.

The last operation, codenamed Hamza, was launched in early April 2017 and seemed more intense than previous ones. It led to significant ISKP casualties, as reported by official Afghan and US military sources, and confirmed by independent and ISKP sources. ISKP activists on social media reported the dispatch of several batches of suicide bombers to engage in face-to-face battles with Afghan and US forces or to attack their Forward Operating Bases (FOBs). Operation Hamza led to a significant loss of territory for ISKP in Kot district and for the first time, Afghan and US forces were carrying out operations inside the Mamand Valley, itself, the strategic stronghold of ISKP. The group was so firmly entrenched in the mountainous valley that neither the Afghan/US forces, or previously, the Taleban had ever been able to dislodge them from there, even after clearing most other areas, according to local elders from the valley. They said that since the valley appeared unbreachable, most of the ISKP’s political and military leadership had based themselves there. Afghan commandos and US Special Forces had been poised to take the Mamand Valley as the next step during its campaign. There is no precise information about how much of the original population had fled the Mamand valley. Elders thought that more than half of the people had left, after ISKP brutality and the burning of people’s houses had forced many to flee.

ISKP has long used the network of caves in the Mamand Valley to hold prisoners. Ever since the group maintained strong control over the area, it brought captives from any of the four districts where it controlled territory to the caves, so that they did not need to be moved as battle frontlines shifted. Although it is not clear as yet if there were any captives held in the caves at the time of the bombing, it was one of the first concerns expressed by locals in the wake of the strike. Prisoners included members of the communities under ISKP rule who did not submit to its orders. Many of these prisoners were also considered spies by the group, for having links to the Taleban or the Afghan government.

The MOAB was dropped in the Asadkhel area, at the entrance into the valley. The question now is whether it was militarily necessary to destroy the cave complex in Asadkhel in order to capture Mamand, and whether it was necessary to use this bomb to do it, with all the drama and headlines it brought with it.

Both the Afghan Ministry of Defence General Nicholson have suggested that it had been necessary. Nicholson said the MOAB was necessary to “minimize the risk to Afghan and U.S. Forces conducting clearing operations in the area while maximizing the destruction of ISIS-K fighters and facilities.” The US military point of view is that, in (what it says was) the absence of civilians, and with the knowledge that hard fighting would have led to casualties among their own and Afghan forces, overwhelming force was a legitimate means of shortening the fight and protecting their troops.

Were there really no civilian casualties?

With a bomb of such force and magnitude, it is difficult to conceive that only the intended target will be affected and that civilian suffering can be prevented. Afghan authorities, however, have claimed that there were indeed no civilian casualties (this included statements by defence ministry spokesman Dawlat Waziri, the army spokesman in Nangarhar, and the Achin district governor).

Their claims have been difficult to verify, due to a serious – and long-standing – shortage of information coming from areas under the control of ISKP generally, and Mamand Valley, its tightly-kept stronghold, in particular. Journalists have been unable to travel to the area. Normally, local elders would provide information, but most have fled the area. The number of detailed reports about developments and life within ISKP-controlled areas has been close to zero. In the light of this blackout of reporting, Afghan and US officials have had a comfortable monopoly on the flow of information about the outcome of the strike in Achin. It may be true that there were no civilian casualties – sustained aerial surveillance from drones will have given the US a clear idea of who was living in the area of the blast. But we may also find casualties coming to light in the coming days and weeks.

UNAMA had already drawn attention to the rising number of casualties from air strikes (both US and Afghan) in the war generally and the “considerable increases in civilian casualties caused solely by international military [ie US] forces in Nangarhar province” in particular. UNAMA’s 2016 annual report on the Protection of Civilians, noted that 89 civilians had been killed or injured in 13 aerial operations in 2016 compared to 18 during 10 aerial operations in 2015.

Some of the commentary on the MOAB strike on Twitter and in the press has focused on whether locals support such strikes, or not. Given the difficulty of getting views from the area, assertions either way seem premature. It may also be that a more complex, nuanced view of the bomb may be nearer the mark (see also these first reactions).

The complexities involved in discussing local views is illustrated by the one piece of research on the impact of drones in Afghanistan, from the UK’s Durham University. The study gathered opinions from people in two (un-named) districts of Nangarhar, described as pro-government and Pashtun, found people to be generally supportive. They said the strikes accurately targeted militants who had been making their lives a misery. However, the research also found that locals’ were living lives horribly constrained by both the drones and the militants, leaving them unable to live normal lives. They were worried about attack if they went out into the mountains to gather fodder or herd livestock, or when they gathered for weddings and funerals or hosted guests, with the threats coming from both sides. It was a bleak picture of a life where the successful killing of militants did not feel like victory and did not lead to an easing of the difficult living conditions (Read about UNAMA statistics and the drone study here.)

Was the scale of the attack proportionate to the ISKP threat?

When the MOAB was developed in 2003, the Pentagon ordered a legal review to ensure the impact of the bomb could not be deemed indiscriminate, and therefore illegal under the Law of Armed Conflict. It found that, “Although the moab weapon leaves a large footprint, it is discriminate and requires a deliberate launching toward the target.” One aspect of the bomb, the report found, was that, “It is expected that the weapon will have a substantial psychological effect on those who witness its use.” And indeed, local reporting suggested that the explosion could be felt across several districts.

Given ISKP’s limited role in Afghanistan, there are questions as to whether the size and the threat the group posed warranted such a dramatic strike. (One commentator described the attack as: “America’s biggest non-nuclear bomb… used on one of the smallest militias it faces anywhere in the world.”)

When the US decided to drop the MOAB, ISKP was under pressure. Its territory was shrinking and although they still had a well-entrenched stronghold in the Mamand Valley, there was no great threat of expansion or momentum.  Elsewhere in the country, the movement had largely been suppressed by the Taleban. ISKP groups that had sprung up in different parts of Afghanistan had all been tiny and most of them were not linked to ‘IS central’ in Syria and Iraq, at all – they had merely adopted the brand and flag of IS. The ISKP group based in Nangarhar did have stronger, institutional links, as it was recognized by the IS ‘headquarters’ and its operations were carried on central IS media platforms. ISKP sources, moreover, told AAN in March 2017 that Raqqa had dispatched a couple of commanders from the centre to oversee operations in Khorasan after the death of the group’s leader Saeed Khan in July 2016. ISKP is also reputed to have better funding than the Taleban – a possible incentive for dissatisfied Taleban commanders to switch. But its reach was still limited.

All in all, in terms of IS internationally and the overall war in Afghanistan, ISKP is marginal. Its territorial hold is tiny and has been shrinking (2). It has failed to move beyond its initial pattern of recruitment that mainly involved foreign militants and ‘dissident’ Taleban, often men thrown out of the movement for being Salafist or criminal. The one place where its significance has grown is Kabul, where it managed to launch two sectarian attacks which led to mass casualties: the Ashura commemorations of 2016 and a gathering of largely Hazara (so mainly Shia) protesters about the routing of the TUTAP electricity line. (AAN reported on the presence of ISKP cells in the capital here.) The group’s ability to carry out such mass murders in the capital may not be hindered by setbacks – or defeat – in Nangarhar. ISKP also has a sizeable following of ‘desk-bound’ supporters, who support it virtually from their computers, and from a range of Salafist networks (usually centred around madrasas in Afghanistan and northwestern Pakistan) of previously non-violent, non-jihadi, ulama.

One reason for wanting to ‘stamp out’ the ISKP stronghold in Nangarhar, also mentioned by General Nicholson during his press conference (see video here) was the fear of the consequences of further defeats to IS in Iraq and Syria, with the possibility of Arab and other supporters from there re-locating to Afghanistan. There are already reports of more foreign fighters, including Arabs, coming to join ISKP and of there being some movement to and from the Middle East.

The bomb may well have killed a large number of ISKP fighters and commanders, diminishing its leadership and affecting its operational capabilities. But there may also be unintended consequences. The use of such a huge bomb made a strike against a minor organisation world news, which in turn could help ISKP recruit. ISKP radio, Khilafat Ghag, already said, in its evening transmission on 14 April 2017 that the battle in ‘Khorasan’ (the old Islamic name for the region now containing Afghanistan and parts of Pakistan and Iran) against the US had entered a conclusive point, where Muslims have no justification not to support its campaign. “These orientalists know our religion well,” the broadcast said. “They know about the prophetic narrations that an army that will emerge from Khorasan and knock on the doors of Jerusalem.” It was the strict resistance of ISKP against the US-Afghan offensive, it said, that had forced the US to drop its biggest bomb: “It is obvious that the enemy feels the need for such huge strikes when they face, proportionally, a huge level of resistance. There is no other reason for this strike than that the US and its allies have lost their morale against the lions of the Islamic State in Khorasan.” Another statement from the radio said “By God, hundreds of youth are preparing to join the Islamic State ranks, thanks to the dropping of this bomb.”

The main actual threat ISKP represents is against the Taleban. ISKP has the image of being ‘younger and more radical’, more media savvy and reputedly better funded than the old guard. The Taleban fear a threat akin to what the mujahedin faced in 1994, when it was the Taleban that was the young, rising power. Although that fear may be overplayed, the Taleban has taken the threat seriously, moving in to try to physically eliminate ISKP (as it did in Zabul) or to disarm dissident and wavering commanders.

But for Afghanistan as a whole, and in the context of the entire insurgency, the threat posed by ISKP is marginal. The Taleban are, by far, the largest and best organised element in the insurgency. Even among foreign groups, al Qaeda may still be stronger and have better international and Afghan linkages than Daesh. Although General Nicholson stressed that the attack had been determined by events and circumstances on the ground, one could therefore ask whether the strike was about Afghanistan in the first place.

Wider political calculations?

Eliminating ISKP is, along with al Qaeda, is at the top of US strategic aims in Afghanistan (see for example Nicholson’s testimony to Congress in January). Defeating IS featured heavily, as one of the few foreign policy objectives, during President Trump’s 2016 election campaign – he, among other things, promised to “bomb the shit out of them.” Islamic State is a name which carries weight in America.

Pentagon officials have said that planning to use the MOAB pre-dated the Trump presidency and that the bomb had been in Afghanistan for months. Even so, the drama of launching the MOAB seems to have been part of the political calculation of wanting to be seen to strike IS and to strike them hard.

The bombing of ISKP targets in Afghanistan by the US is not new, but the size of the bomb –and the consistent use of the “America’s biggest non-nuclear bomb” moniker – made the strike into a huge news story, both in the US and worldwide. The bomb thus appears to be part and parcel of a desire by president Trump to ‘take the gloves off’ his military. He had already removed restrictions aimed at protecting civilians when the US conducts air strikes in Somalia and Yemen. In Afghanistan, the US military had learned, to its cost, that civilian casualties harm the military effort and had worked hard over the years to increase safeguards and precautions, realising that protecting civilians was of strategic value.

Although Nicholson stressed that the possibility for collateral damage had been carefully assessed, the colossal nature of the weapon that was used feels like a step-change in the war. Moreover, the framing of this bomb as the largest non-nuclear weapon ever used on the battlefield betrays a fascination with lethal force that is worrying. A former intelligence officer described the MOAB as “a bravado weapon” which meant that “You basically have a mushroom cloud in Afghanistan.”

Indeed, some Afghans have expressed concerns that their country is being used as an arena to try out the impact of rarely used weapons, project an image of American strength and show other countries what happens if you cross Washington. “This is not the war on terror“ tweeted former Afghan president Hamid Karzai, “but the inhuman and most brutal misuse of our country as [a] testing ground for new and dangerous weapons.”

As Afghan and US soldiers pick through the rubble, the success of the operation in terms of its damage to ISKP will become clearer: how many ISKP fighters and commanders were killed, what was their seniority and were any of the leadership killed. More operations are anyway expected against the group elsewhere in Nangarhar. Local sources in Achin reported that Afghan forces (most likely jointly with US forces) were already carrying an operation in Pekha area, another tightly-held ISKP centre adjacent to the Mamand Valley. ISKP in its radio transmission on 14 April 2017 dedicated fully to MOAB, vowed to take revenge for dropping the bomb “on the oppressed people of Achin.”

The final verdict on the bomb for many Afghans may rest on how reckless the use of the bomb turns out to have been, after it becomes clear whether civilians were or were not harmed. Its impact on ISKP may take more time to assess. As for its impact on the Afghan war, generally, it is difficult to imagine that even a bomb of this size and nature will have an effect that is anything more than marginal.

 

(1) In June 2016, Obama increased the authority of the US commander in Afghanistan to order offensive strikes, with potential targets including not just al Qaeda, but also the Taleban, and for reasons not just of ‘counterterrorism’. The US commander could additionally also strike for “strategic effects,” for example, if he believed US firepower could prevent a population centre falling to the Taleban.

(2) Sources in the Nangarhar-based ISKP said the emir had recently officially extended the group’s presence to neighboring Kunar province, after two years of muted presence there. They claimed the group had carried out attacks against Afghan forces there in February 2017. ISKP social media activists also carried statements claiming attacks in two districts of Jawzjan, last week. Overall, though, its territorial control has still been decreasing rather than expanding.

Shamshatu refugee camp, headquarters of Gulbuddin Hekmatyar’s Hezb-e Islami in Pakistan since the 1980s, is increasingly empty. Many residents, including a number of important Hezb leaders, have left for Afghanistan, encouraged to return by the peace agreement signed by Hekmatyar and President Ashraf Ghani in September 2016. The deal paved the way for the return of those living in the camp and included promises of land and government posts. However, many residents fear the deal will not be fully implemented and are not yet ready to leave permanently. AAN’s Fazal Muzhary has been to the camp and describes the history, current mood and recent developments in this, Hekmatyar’s stronghold (with input from Thomas Ruttig and Kate Clark).

A look into Nasrat Mena (better known as Shamshatu)

After almost three and a half decades of existence, one of the best known and most significant Afghan refugee camps in Pakistan is slowly emptying. Following the peace agreement with the government – and the general pressure Afghan refugees are under from Pakistan to leave (on repatriation see AAN analysis here) – many are deciding to ‘go home’.

Although the camp is officially known as Nasrat Mena – which translates as the Victory Quarter, an allusion to the hope that Afghans would overcome the Soviet occupation – the camp is better known as Shamshatu. This is the name of the barren, desert-like area inhabited by tortoises in which it was set up in 1983. (Shamshatu means ‘tortoise’ in Pashto.) It was founded to host Afghan refugees who poured out of their country after the coup d’etat by leftists in 1978 and subsequent Soviet military invasion over Christmas, 1979. What was supposed to be a temporary refugee camp, where people lived in tents, developed into a full-blown town of mud buildings, a large sprawl to the southeast of the Pakistani province of Khyber Pakhtunkhwa’s provincial capital, Peshawar. There was a bazaar, schools, mosques, small restaurants, two hospitals (one for men and one for women) and two universities, one military and another with a medical, engineering and education faculties.

Like many of the other Afghan refugee camps that were established in the 1980s, control over Shamshatu camp was handed to an Afghan mujahedin faction then fighting the Soviet occupation, in this case, Hezb-e Islami led by Gulbuddin Hekmatyar (or HIG) (1). Islamabad had become the funnel for large amounts of cash, weapons and other supplies from western and Arab countries and China to the mujahedin. Donors allowed Islamabad to distribute the aid as it saw fit. It chose to recognise only seven factions, all Sunni and all Islamist or with a ‘Muslim’ orientation, who became known as ‘the Seven’ or ‘the Peshawar Seven’, Haftgana in Dari. If refugees wanted humanitarian supplies, they had to join one of these factions and, in some camps, including Shamshatu, they had to ‘join’ the faction controlling the camp. Hezb-e Islami was Pakistan’s most favoured faction (until the rise of the Taleban in the mid-1990s) and it received the bulk of foreign arms and funding. Jamestown’s Terrorism Monitor quoted a financial officer for the camp’s administration in 2007 as saying that “Whoever lives or has lived in the camp is a supporter of Engineer Hekmatyar and a member of Hezb-e Islami Afghanistan, because this camp belongs to Hezb-e Islami.” This was not entirely the case; the population was always more mixed. However, it was Hezb’s stronghold and most people who lived there were ‘members’.

Almost a city

If you travel along the road leading from Peshawar to Shamshatu, you meet two check-posts at the immediate entrance to the camp. The first, outer check-post is manned by Pakistani police and the second by security guards of the camp, deployed by Hezb-e Islami.

Once inside, the road from Peshawar divides the camp into two parts. To the left is Area A (Alef Saha, in Pashto) and, to the right, Area B (Ba Saha). Area A is dominated by a large congregational mosque. It was the first building constructed in Shamshatu, according to Wahid Muzhda, a Kabul-based political analyst and former member of Hezb-e Islami (and then of the Taleban). For Eid, when the camp was still fully populated, about 50,000 men and boys would come here to perform the holiday prayers. While laying its foundation stone in 1982, Gulbuddin Hekmatyar named the mosque Imam Muhammad Bin Hassan al-Shaibani. Dominant in Area B is the large Qais Bin Saad School, built on about 40 to 50 jeribs (8 to 10 hectares) of land in 1984. Part of this school is still used by Hezb as a party office. According to Muzhda, there was also an underground bunker available in case of explosions and other attacks.

At the height of its population, there were about 800 shops in Shamshatu which were rented to refugees by the municipality of the camp which is also controlled by the party. Almost all day-to-day necessities are available in these shops, including medicine, bread, fruit, vegetables, cooking oil and all kinds of other foodstuffs and household items. Furthermore, people living in the camp have access to several types of services. As in any Afghan town, there are workshops belonging to carpenters, car mechanics and electricians, and technicians and labourers for hire. This saves people journeys to Peshawar for shopping or employment, and also means the party has benefited from the rent and the economic activity.

There was a particular place for shopping in the camp where only women with their mahram or male family member could go. The security guards were always present there and they would not allow a girl or woman to enter without a mahram. The market only sold ‘women’s items’ – female clothes, cosmetics and other daily necessities. The shops in this area would close before the evening call to prayer and beyond that time, no one could be seen in the area. The residents of Shamshatu were not allowed to sell or buy naswar (snuff), cigarettes, or music tapes and videos and shaving beards was outlawed. Hezb members told AAN that the shopping area for women, and the ban on naswar and shaving no longer exist, but playing loud music and selling video CDs of western and Indian movies are still banned.

Apart from the large Friday mosque, 38 small mosques also sprang up over the decades. Friday and Eid prayers were only ever performed in the major congregational mosque, though; imams at the other mosques were banned from performing these prayers. There were also three high schools such as (Qais Bin Saad High School and Abu Ayub Ansari for boys and Al-Banat al-Mu’minat for girls) and a few primary schools. A ‘jihadi university’, which focused on training fighters, whom the Hezb people referred to as ‘army officers’, was established in the camp around 1985. Engineer Abdul Salam, Hekmatyar’s military assistant, told AAN that during the resistance against the Soviet occupation, six classes, each of 60 to 70 students (a total of around 300 to 400 people) graduated as ‘officers’ from the academy. The university was closed in the 1990s; Hezb officials did not recall the exact year. Another, civilian university, was also established; it was later moved to Peshawar city and then, in 2008, to Khost province, where it was renamed Sheikh Zayed University after the founder of the United Arab Emirates which funded the relocation.

How Hezb came to dominate Shamshatu

Hekmatyar, fled Afghanistan to Pakistan in 1975, after an unsuccessful attempt to start an Islamist uprising in July that year. According to Muzhda, Hekmatyar first did his political work from a small building in the Faqirabad district of Peshawar. After the coup and Soviet invasion and the huge influx of Afghan refugees into Peshawar, and looming security threats – including a bomb blast in front of the Hezb office, thought to be the work of KhAD (Afghan state intelligence) – the Pakistani government was convinced to move the bases of Afghan jihadi groups out of the city.

In 1982, a six-member team was tasked with finding a location for a camp for Hezb-affiliated refuges and negotiating the lease of the land from the local government. One of the six was Engineer Salam, who worked at different positions in the party and is currently head of all Hezb-e Islami offices in Kabul. He told AAN that they leased 500 jeribs (100 hectares) of land from the local government and another 500 jeribs from local people, both for 99 years. Hezb still pays 1,300 Pakistani rupees (today roughly 11 USD) per jerib, per year. Once it was decided to set up the camp, a plan was drawn up and it was divided into two parts, parts A and B, either side of the road from Peshawar.

According to a military commission member of Hezb, Akhtar Muhammad Sharafat, 4,000 plots were distributed to party supporters from different provinces. Most of the important party commanders lived in the camp, at least temporarily when sheltering from operations in Afghanistan and coming for supplies. Hekmatyar’s office was put into Area B of the camp, and although he also had a home in Peshawar city, he preferred to be in Shamshatu and would stay there most of the time (2).

In order to manage the daily affairs in the camp, a number of departments were set up, including on security, culture, judicial matters, education, finance, planning and management, health and social services, which focused on helping martyrs’ relatives. A mayor was selected every three years by the members of the financial committee (there was no election). The members of the power and water (the camp had 11 wells, each about 400 feet deep) collected taxes and payments for bills. There were more than 100 security personnel, who would patrol the camp or man security posts that were spread over the camp, specifically near hospitals, wells, in the bazaar and in other important areas.

Engineer Salam told AAN that, although Shamshatu was dominated by Hezb members, supporters of other mujahedin factions, such as Jamiat and Harakat, were also living there, making use of the facilities such as the schools, hospitals, the security provided and the large bazaar (other camps did not have all the facilities that were available in Shamshatu). They were not given land by the party and personally purchased the land from Pakistanis. In addition to Afghans, some foreign fighters also lived in the camp at the time of the resistance against the Soviet invasion, including Arabs and Central Asians. This is not the case anymore, according to Salam.

The darker history: prisons and torture

During the anti-Soviet ‘jihad’, Shamshatu also had its own prison where, allegedly, torture was carried out; this is detailed in a 2005 report by the Afghanistan Justice Project (AJP.

Mujahidin factions based in Pakistan maintained prisons where they held, tortured and in some cases executed Afghan refugees suspected of opposition to the policies or practices of the Pakistan-based groups. Hizb-i Islami (Hikmatyar) and Hizb-i Islami (Khalis) both maintained prisons near Peshawar. Human Rights Watch has described some of these prisons. One of the best known was Shamshatoo, which was used by Hikmatyar to detain men and women. According to Human Rights Watch, “Torture [was] reported to be routine, including severe beatings and the use of electric shock.” The intelligence agencies of these factions also carried out abductions of Afghan refugees. Human Rights Watch also reported that the Pakistani Inter-Services Intelligence (ISI) also interrogated, and sometimes tortured Afghan refugees considered to be a “security threat,” in some cases because they did not support one of the Peshawar-based mujahidin parties recognized by Pakistan. In some cases these detainees would be handed over from the ISI to Hikmatyar.

Asia Watch, which interviewed refugees in Pakistan in mid-1990 and gathered the names of people who had been allegedly detained in the detention facility, described the prison: “[The detention facility] is reportedly a two-story prison, part of which is underground. The prison reportedly included a section for women prisoners.”

In addition, Hezb is also accused of carrying out assassination of people they deemed enemies in the late 1980s and early 1990s, with operations based out of Shamshatu. Hezb-e Islami was blamed for the killings of members of other mujahedin factions, monarchists, women’s activists and intellectuals. One of the most notorious was that of Sayed Bahauddin Majruh in February 1988. Majruh was the publisher of the highly respected Afghan Information Centre Monthly Bulletin, which, a few months before his murder, had published the results of a survey that found that 70 per cent of Afghan refugees supported the former king, Zahir Shah, over any of the mujahedin leaders. Hekmatyar got very few votes. Asia Watch reported that Majruh had received death threats from Hezb-e Islami before his murder.

First deputy CEO, Muhammad Khan, who was Hezb’s intelligence or deputy intelligence chief and living in Shamshatu at the time of these alleged war crimes, denied them in an interview with AAN in June 2014. He said he had only been concerned with foiling plots by Afghan state intelligence agency, KhAD, and Shamshatu had had no detention centre, only security offices which dealt with the “internal affairs of the war” and one [weapons] depot.

The camp’s population; then and now

Shamshatu has seen rises and falls in its population over the last thirty years. Member of military commission of Hezb, Akhtar Muhammad Sharafat told AAN how the camp’s population quickly increased from the initial 1,000 families, mainly Hezb supporters, who came in the early 1980s, to, at its maximum, about 8,000 families (a more politically mixed population). According to Muzhda, who closely followed the changes in Shamshatu over the years, a number of Shamshatu residents started to support the Taleban around 1995 because of news of the Taleban surge in Afghanistan. Also, Pakistan started to strongly support the Taleban. When the Taleban regime fell in 2001, there were again population movements. At first, the number of non-Hezbi residents increased after the Taleban lost power as some families affiliated with the Taleban fled Afghanistan and settled in Shamshatu. However, there was also soon a movement in the opposite movement. Various Afghan refugee camps in Pakistan emptied after the fall of the Taleban regime when many Afghans decided to return to Afghanistan. Since 2001, more than 4.5 million Afghans living in Pakistan as refugees have returned, but most of them were non-Hezbis. Shamshatu was a partial exception; decisions by Hekmatyar drove also the decisions of many Shamshatu inhabitants about whether to stay or go.

Hekmatyar was at first ambivalent about the ‘developments’ of late 2001 and then became hostile to the new government. Although his son-in-law, Humayun Jarir, was in the Bonn conference in late 2001 but under the umbrella of another delegation (the Cyprus Group), it was not clear whether he had a Hezb mandate for this, the faction did not become part of the Afghan government and suffered some revenge harassment from its long-term rivals, Jamiat-e Islami which had captured Kabul; in the end, Hekmatyar opted to launch a ‘jihad’ against the Kabul administration and its foreign backers. In February 2002, he was deported from Iran where he had found asylum after he was forced out of Kabul by the Taleban in 1996. He claimed to have gone into hiding in the Shegal valley of eastern Kunar. (3) Although he was away from Shamshatu, he was able to continue to control the camp with the help of his military assistant, Engineer Salam.

Hezb members told AAN that the camp did not see a considerable decrease of inhabitants after the fall of Taleban regime in 2001, but this is not quite accurate. At the time of the fall of the Taleban UNHCR estimated the camp’s population at 53,000 people (roughly 7000 families). It later reported that, by November 2002, more than 15,000 residents of Shamshatu, mainly non-Pashtuns, had handed in their ration cards, destroyed their houses and boarded trucks back to Afghanistan. The camp’s population was now down to just over 37,600, according to an UNHCR update. Services had been reduced due to the smaller population and “the number of non-governmental organisations active in the camp has shrunk from 37 to nine.” Nevertheless, Sharafat stated that, based on electricity and water bills, there were still around 8000 families (roughly 53,000 people) living in this camp until mid-2016. Although he admitted that the population saw a decrease, he said it was not as much as in other – non-Hezbi – camps (which was true).

Although, since 2001 some pro-Hezb-e Islami people returned to Kabul, or decided to have houses both in Kabul and Shamshatu, most of the Hezb supporters felt they were not in a position to completely return. Two reasons can be considered: one is the fact that they had leased the land for 99 years and second that the Pakistani government, at the time, did not put much pressure on Afghan refugees, generally, to leave.

Nasrat Mena after the peace deal

Two developments came in 2016 to ‘encourage’ residents of Shamshatu to leave. Firstly, like all other Afghan refugees, pressure by the Pakistani authorities on Afghans to leave intensified. Moves included the border closure of Torkham in June 2016, the building of a gate for the first time on the Pakistani side of the border and a number of new rules including the necessity for Afghans to carry a passport and valid visa to enter Pakistan. Afghans living in Shamsahtu said they began to fear the border closure might be permanent and their way home would be blocked. Moreover, the new border measures made it difficult for Afghans living in Shamshatu to commute between Kabul and Peshawar using their refugee cards, as had used to be the case. Families began to leave Shamshatu camp from June 2016.

Secondly, the signing of the peace agreement between the Afghan government and Hezb-e Islami on 29 September 2016 additionally galvanised the decision of many Afghans in Shamshatu to return to Afghanistan (on repatriation see AAN dispatches here). After the peace agreement was signed, Hezb members in the camp changed how they spoke about Afghanistan. Before the peace deal, one resident told AAN, members and supporters would say that Afghanistan was occupied by the United States and the Afghan soldiers were their puppets. They have now reportedly dropped this rhetoric and say that those fighting the government are causing destruction.

Based on the agreement, the Afghan government is committed to “take all measures to resolve the problems of Afghan refugees living in Nusrat Mina Camp [Shamshatu] and other refugees based Pakistan and Iran.” These returnees would receive privileges including provision of land for their shelter with other necessary services in Kabul and other provinces, once the agreement is fully implemented. This can be considered as one of the incentives for Hezb supporters to return to Afghanistan. According to Engineer Salam, around a quarter of the inhabitants of Shamshatu have now returned to Afghanistan, but the number might actually be higher. As was the case earlier, some poor people destroyed their houses in the camp when leaving, taking the timber with them to use to build new homes (see photos). Currently there is only one high school for boys and one for girls left, and the number of security personnel reduced to about 60 from more 100 in 1980s.

Hezb people who spoke to AAN said that, there was no plan to fully destroy or abandon the camp. They said officials were still waiting for the full implementation of the peace agreement. They fear that if the agreement is not fully implemented or if there are disagreements between the government and Hekmatyar, there might be fresh fighting and they would then be unable to return to Pakistan, and in particular, to Shamshatu. Even Abdul Salam, Hekmatyar’s military assistant, is concerned as his family still lives in Shamshatu. He said once the agreement was implemented the Hezb supporters were going to return to Afghanistan in a ‘dignified’ way. However, it seems that low level Hezb supporters do not care whether the deal is implemented or not – they just want to go home. AAN was told, the accelerated rate of return from Shamshatu, mainly among low-level supporters lasted till the end of December 2016 when UNHCR stopped the repatriation process, for all Afghan refugees, due to cold weather in Afghanistan. That programme started again, on 3 April 2017.

Non-Hezbis in Shamshatu believe Hezb supporters will definitely return to Afghanistan, in order to get dividends from the peace deal, such as plots of land and jobs in the government. They also said that the return of Salam and other important Hezb members to Kabul in December 2016, though their families are still in Shamshatu, had further strengthened their belief that Hezb-affiliated people were serious about returning. It seems that once the agreement is fully implemented, it is likely that most residents of Shamshatu, including families of key Hezb members will return, particularly given the heightened pressure from Pakistan, which has extended the stay for Afghans only till end of 2017.

Engineer Salam told AAN that the assets and weapons that the party owned and used for protection would be shifted to Afghanistan, once the peace deal is fully implemented. Hezb is also planning to move schools, madrasas and other institutions to Afghanistan. He said that the leadership will decide about the fate of Shamshatu camp, but that for now they try to keep the camp as far as it is possible, until the peace agreement is fully implemented and the refugees have returned.

New Hezb mobilisation and preparations for Hekmatyar’s return

One of the changes seen in Shamshatu after the peace deal was signed, is that Hezb supporters started distributing new membership cards, both to the old members who lost their cards or were inactive for long time, and to new recruits that want to become members. These cards were also given to the new generation, who were born in Shamshatu and are ‘intellectually’ affiliated with Hezb, but had not become members. Afghan refugees in Shamshatu told AAN that many people had got new cards as they hoped to receive the benefits promised in the peace deal once they are in Afghanistan. The new recruits hope for government posts in Afghanistan, as they believe that Hezb will be given a quota in the government based on the peace deal “that entails Hezb’s participation in government in accordance to the law.” A rumour driving the distribution of the cards is that Turkey and Saudi Arabia may give money to party members to enable them to build houses upon their return in Afghanistan. The party leadership seems also to be trying to push membership to demonstrate its large following when party leader Hekmatyar finally returns to Kabul.

Sources in Shamshatu told AAN that another important change is the training of 250 to 400 armed Hezb members who would serve as a special guard for Hekmatyar after his return to Kabul. One source there told AAN that Hezb supporters in the camp stopped movement of ordinary people in the area where the training was carried out. According to this Afghan media report, these guards will receive a salary of between 200 and 250 USD from the government budget. According to the same source the training was supposed to be completed in January 2017, but in March, 2017, residents in Shamshatu confirmed that it was still ongoing. Although Hezb chief negotiator Muhammad Karim Amin did not confirm the training of the guards in Shamshatu, he did say that preparations for Hekmatyar’s security were underway, both in and outside of Afghanistan.

Last minute delays to the deal

Aside from general worries about the peace deal not going through, there have been particular problems in the last few weeks. Although the UN removed Hekmatyar’s name from its sanctions list, two commanders, Engineer Abdul Sabur and Abdullah Nawbahar, are on a US terrorism blacklist. The US State Department has offered two and three million dollars, respectively, of reward money for information leading to the men’s arrests. According to the peace deal the Afghan government is supposed to ‘request’ the UN Security Council and other relevant countries to lift sanctions against Hezb-e Islami leadership and its members. However, the request of Afghan government in December 2016 to the UN only included Hekmatyar’s name but not the names of the upper mentioned Hezb commanders (see report here). Sabur and Nawbahar are not going to return to Afghanistan unless their names are removed from the US blacklist, but that is unlikely to scupper the deal.

A more serious problem is prisoners. Based on the peace agreement the Afghan government is committed to releasing Hezb prisoners who have been imprisoned for political and military activities and against whom “there are no haq-ul-abd ‘right of people, as opposed to right of God’ claims.” During March 2017, Hezb repeatedly accused the government of not honouring its commitments, (see for example here). Some of the dispute is about the nature of the detainees. Hezb-e Islami submitted a list of 488 prisoners to be released, but the government only announced that some of the prisoners were going to be released. Officials told AAN they would not include those who had been involved in terrorist attacks. A source in Hezb-e Islami also told Pajhwok that, as well as not releasing prisoners, 70 Hezb supporters who had come to Kabul to celebrate the peace deal had been detained.

Hezb officials have also been concerned that plots of land have not been distributed. Based on this Washington Post report, Hekmatyar wants a big number of his supporters to be given land, but the Afghan government has said that was not feasible.

On 2 April 2017, however, Shah Hussain Murtazawi, acting spokesman for the president, said in a press conference that some Hezb prisoners would be released the following week (no releases have been reported), that all other responsibilities of the government would be completed within 15 days and that it was now up to Hezb to announce when their leader would return.

Concerns and a shifting composition

Since many pro-Hezb people have left Shahshatu for Afghanistan, and many more are planning to do so, non-Hezbis, who include many Taleban and Taleban-sympathisers, still living in the camp are concerned that it will become difficult for them to continue living there. Services will decline, they believe and the Pakistani police may continue to pressure those Afghan refugees remaining in this camp. It will then not be easy for the non-Hezbis to live in peace, on either side of the border. In Pakistan, Afghans are no longer welcome, and on the Afghan side, they will not be covered by the privileges obtained by Hezb for its members through the peace deal. The composition of the camp’s inhabitants is likely to change, with active members of the Taleban and sympathisers gaining more influence – if they are allowed to stay.

Editing by Thomas Ruttig, Kate Clark and Martine van Bijlert

 

 

(1) Other camps include Jalozai Refugee Camp that was given to Abdul Rasul Sayyaf’s Ittehad-e islami (now Dawat-e islami) party and a camp in Cherat that was given to Muhammad Nabi Muhammadi’s Harakat-e Enqelab-e Islami. This camp was also close to Jalozai camp, as was the small Khurasan camp, related to Burhanuddin Rabbani’s Jamiat-e Islami in Pabbi area. In the Shamshatu desert, in addition to Nasrat Mena, two other camps existed, one given to Mawlawi Yunos Khales’ Hezb-e Islami (despite its name, it is a separate party from Hekmatyar’s), which still exists, and the second given to Qazi Muhammad Amin Waqad, who was a co-founder of Hekmatyar’s Hezb but later parted ways with it; it had been destroyed.

(2) Until the fall of the communist regime under Najibullah in 1992, Hekmatyar lived most of the time in Shamshatu. When he came to Kabul, he was mainly based in Chahar Asiab to the south of the city. After the Taleban took control of Kabul from the mujahedin in 1996, Hekmatyar fled to Iran.

(3) This was according to Hekmatyar’s book “Khubuna” (Dreams).

 

This year’s Nawruz, the Persian New Year on 21 March 2017, also heralded the beginning of the positioning for Afghanistan’s next presidential election, although due only in two years’ time. Atta Muhammad Nur, the powerful governor of Balkh province, used the popular holiday to announce that he will run in 2019. He kept open, however, whether that will be for president or vice-president. Atta also revived the struggle for the leadership of the Jamiat-e Islami party, thereby challenging its most senior representative in the current government, Chief Executive Dr Abdullah Abdullah. He is already facing severe headwind from within the party. AAN’s Thomas Ruttig looks at how Atta’s campaign has so far unfolded and the hurdles that stand in his way, even within his own party (with input by Obaid Ali and Ali Yawar Adili.)

On the first day of the Persian new year, Atta Muhammad Nur, the powerful governor of Balkh province and head of Jamiat-e Islami’s Executive Council (shura-ye ejra’iya), went public on his future political intensions. The key point of his statement that was widely covered by the Afghan media (see for example here) was: “In the near future, after consultation with political allies and [the] people, I will make a decision on my resignation [as governor of Balkh province] in order to participate in the upcoming elections.” As early as December 2016, he had already indicated that he might leave his gubernatorial position, stating “I have been in Balkh for a long time. It is natural that I should open the way for others to take the seat.”

His Nawruz speech was not the first time that Atta (1) has hinted that he might run in the next presidential election. Earlier this year, but less prominently (at least for an international audience), he announced in an interview with BBC Persian on 3 January 2017: “I will [either] be a candidate [on my own] or I will go with one of the tickets [as a vice-presidential candidate]” (watch the video here, in Dari). The latter could indicate that he might be considering joining forces with incumbent President Ashraf Ghani, who, as many Afghan and international observers in Kabul believe, will probably run for a second term.

There were similar rumours of Atta’s presidential ambitions prior to the 2014 election (see this AAN analysis). But Atta eventually decided to support president Ghani’s main opponent, Dr Abdullah Abdullah, and assuming the role of a kingmaker. With his considerable riches and control over large stretches of the populous northern Afghan provinces, Atta was an important contributor to Abdullah’s campaigns in 2009 and 2014, both in terms of campaign funds and voter mobilisation. In 2009, his support for Abdullah led to a crisis in his relations with the then president, Hamed Karzai. This almost cost him his Balkh governorship, as the president was unhappy about someone he had appointed supporting his main rival in the upcoming election. Relations only improved after Atta paid a ‘reconciliation’ visit to the presidential palace in Kabul.

To be (a governor) or not to be

Atta’s announcement that he intends to run in 2019 came after a major political success: a month earlier, on 20 February 2017, he had finally succeeded in persuading president Ghani to renew his appointment as governor of Balkh province (see media report here), with its capital and economic boomtown Mazar-e Sharif. Up to that point, Atta had served in an ‘acting’ capacity, after the president had decreed, immediately after taking office in 2014, that all provincial governors would be replaced (more AAN analysis here). The deal allows Atta to resign as a ‘full-fledged’ governor – if, indeed, he does run in 2019.

The agreement to keep Atta as Balkh governor highlights his importance and specific role in Afghanistan’s power-play, which made trying to replace him so difficult for Ghani. Atta is not a ‘normal’ governor in the sense that, as an appointee of the centre, he is expected to act as the transmission belt of the central government and its policies, as is the case with most new governors appointed under Ghani. Atta became governor of Balkh in 2004, after a protracted struggle with General Abdurrashid Dostum and his Jombesh party for dominance in this key northern province, which he won. (2) He has since cemented his position – both politically, economically (AAN analysis here) and even culturally. He has had monuments of historical figures from northern Afghanistan built all over Mazar-e Sharif – from Zarathustra and Rumi, to Ahmad Shah Massud – and is sponsoring cultural projects, placing himself in the context of Balkh’s long history and artistic tradition (more AAN analysis here). His entrenched position makes him the last of the de facto autonomous former warlords or commanders, who used to rule over key provinces in the early years after 2001 without much interference from the centre – from Ismail Khan in Herat to Sher Muhammad Akhundzada in Helmand, Gul Agha Sherzai in Kandahar and Haji Din Muhammad in Nangrahar.

It is of similar importance as his governorship that Atta belongs to Jamiat-e Islami’s core leadership. Jamiat is not only one of Afghanistan’s oldest and largest political parties (and, based on a wide network of commanders, still one of its most powerful military factions), but also Ghani’s de facto main coalition partner in the National Unity Government (NUG) that came into being after the botched 2014 presidential election and, in contrast to its name, is marred by almost constant infighting. Now also Abdullah, who was the runner-up and Jamiat’s de facto candidate (3) and became the new government’s chief executive (CE), has come under intense criticism from his own camp (see AAN analysis here) for not delivering on the power-sharing deal included in the NUG agreement (full text here) between its two formerly opposed camps.

It cannot have been an easy decision for Ghani keep Atta in Balkh. Not only had Atta openly supported his fiercest rival during the elections, using strong language against Ghani (including personal accusations of mass electoral fraud), but he also initially refused to recognise him as the elected president and had even threatened to unleash mass protests and to form a “parallel government” (quoted here). Atta, on his part, is well aware of his twofold position of strength, as he confidently expressed in the January 2017 BBC interview: “I remain in my position as governor because of my ability to better serve the people, and because of my political position within Jamiat.”

A look back: Atta’s move toward the Jamiat leadership

Atta’s political offensive has a second dimension. On 13 March 2017, about a week before his Nawruz statement, he sharply and publicly criticised his erstwhile political ally, fellow Jamiat-e Islami party member and NUG chief executive, Dr Abdullah. While addressing a gathering marking the third anniversary of the death of former Vice President Marshal Muhammad Qasim Fahim, another former Jamiat leader, Atta called his decision to support Abdullah in the 2014 presidential race “the biggest mistake [of] his political career” (Afghan media reporting here). He was quoted accusing Abdullah of selfishness, saying that “Abdullah’s huge[st] achievement is getting a salary and appointing advisors [for himself]” and of not achieving a fair share in the government, because he gives in to the president too often on top appointments. Atta even claimed that Abdullah had been removed from his positions in Jamiat:

After two years and a few months [in the CE office], we separated him from the decision making within the party. (…) We moved his responsibilities to other capable people.

This was not the first time Atta had expressed his disapproval of Abdullah, accusing him of dropping the ball on key Jamiati policy aims. These included strengthening the role of parliament, breaking the president’s institutional grip on the election-related institutions and convening the Loya Jirga, which, according to the NUG agreement was supposed to decide on whether Abdullah’s extra-constitutional position as government chief executive should be abolished or turned into a constitutionally-sanctioned permanent prime ministerial post. In a speech to Jamiat commanders and other supporters in Kapisa province on 30 January 2017, Atta had already spoken about his motives for backing Abdullah in 2014: “I invested in [Abdullah] because he served with Amer Saheb [the late Ahmad Shah Massud] and I thought he might approach the people in the way Amer Saheb did. Unfortunately, that did not happen.”

Over the last few months Atta has sought to re-negotiate the NUG deal with the president on Jamiat’s behalf. That he has now publicly opened up the front against Abdullah suggests that he firmly intends to become Jamiat-e Islami’s new leader.

The position of Jamiat leader has been in a transitional state for almost six years now. Since the Taleban assassinated the party’s founding father and long-standing leader, Borhanuddin Rabbani in 2011, Jamiat has been led by his son, Salahuddin Rabbani. When Salahuddin took the position on 4 October 2011, three weeks after his father’s violent death, it was supposed to only be for two months, after which, according to the party’s constitution, a regular congress was to be convened to choose its permanent leadership. The congress did not take place as planned. It was re-scheduled in 2013 for “after the 2014 presidential election” (more background here), but has yet to take place – which means he is overdue for another 30 months, since then.

Atta has been strengthening his inner-party position, with the aim of becoming the party’s leader for many years. After the power struggle over Mazar-e Sharif fell in his favour in 2004, he built an extensive network of followers from this stronghold to cover the northern provinces. He went public for the first time in 2011 on the very day that Salahuddin Rabbani was appointed interim party leader after his father’s death. He was quoted by the media (4) as saying that he was ready to take the lead of the party to prevent it from splitting and that“[t]here has been a lot of support [for me] from senior party members and if that continues I will take the lead” (see more detail here). In 2013 he was appointed chairman of the party’s Executive Council, which runs the party’s everyday affairs on behalf of the larger leadership council (he replaced Ahmad Zia Massud who became one of the two deputies to the party chairman, a position that is officially higher, but of less practical influence than the Executive Council chair; see more AAN analysis here).

Today, the field of contenders for Jamiat’s top leadership position has thinned, which works in Atta’s favour. Abdullah’s position as the highest-ranking Jamiati in government has been weakened, in the eyes of many party influentials because of his failure – in the eyes of many party influentials – to place the expected number of party members in the NUG. Former defence minister and vice president, Muhammad Qassim Fahim – Ahmad Shah Massud’s anointed successor at the top of Jamiat’s armed wing, Shura-ye Nazar – passed away in March 2014. Ismail Khan, although an influential and indeed now Jamiat’s most senior leader (he is a decade or more older than Qanuni, Abdullah or Atta), is too much of an outsider given his base in Herat. And former interior minister Yunus Qanuni has kept a relatively low profile for a long time, without any indications of ambitions for the party leadership. Recently, however, he has moved more to the forefront again, speaking out about one of Jamiat’s key demands: the shift from the current presidential to a parliamentary system. He also participated in the formation of jihadi councils such as the one led by Ustad Sayyaf (see AAN analysis here). (5)

Atta’s current mobilisation

Atta has been working on his campaign for months. He began negotiating with president Ghani in the last quarter of 2016 in the context of the threat he felt to his gubernatorial position in Balkh, in an attempt to strengthen Jamiat in the NUG and to capitalise on a possible success for the competition about the Jamiat leadership (see AAN analysis here and here). He went the extra mile to disperse any impressions that these efforts might be mainly self-serving. In his speech in Kapisa province in January 2017, for example, he stated that he “received promises to serve as the first vice president and to get millions of dollars” (6) but that he “rejected all this” (see also here). Instead, he said he was trying to ensure Jamiat and its allies were better included in “decision-making on national, international and strategic issues.”

Although Atta claimed he had entered into negotiations with Ghani with the consent of the party’s leadership, a close aide, Farhad Azimi, was quoted by Afghan media in early January 2017, saying “talks are progressing slowly because of disagreements between the party members” (or rather party leaders) – singling out Ismail Khan and Ahmad Zia Massud. Ismail Khan, for example, raised concerns about a “lack of trust” between Abdullah and Atta that would jeopardise Jamiat’s unity. Indeed, public backing for Atta’s talks by the Jamiat leadership council only came a month later, in early February 2017. As it came with a two-month timeline, it put Atta under pressure to deliver on his own promises with regard to government positions. (7) This could be difficult, however, as the president’s camp insists that the talks are about Jamiat’s increased political participation in the government, rather than specific government positions (see for instance the statement made by the president’s deputy spokesman, Shah Hussain Murtazawi, on 1 February 2017).

Headwind for Atta from within Jamiat

Although Jamiat came out in support of Atta’s re-negotiation activities, there remains stiff resistance to his ambitions towards the Jamiat leadership within the party’s leadership council (that, according to the party’s constitution, includes its founders, the leader and the heads of its committees). The leadership council has the authority to convene the party congress, where the new leader will be chosen, but members have told AAN that a majority in its ranks is sceptical of Atta and therefore opposed to convening the congress. Unless the party congress is convened, Salahuddin Rabbani will remain at the party’s head.

Another reason for resistance to Atta, according to the Kabul-based daily Hasht-e Sobh, is that some in the party’s leadership council fear that the tensions between Atta and Abdullah, or any other contenders, could lead to a permanent split of within Jamiat.

There are already various factions and sub-factions within the party that are vying for power, some of them with ‘historical’ claims to the party’s leadership. To bring them under one hat will be a difficult task for whoever who wants to become the new, permanent leader of Jamiat.

If Atta does become head of Jamiat, the lead over the party will, for the first time, in the hands of a northerner. Politically, Jamiat has been led so far by the Rabbani family from Badakhshan in the northeast, a distinct region from Balkh that is culturally and historically part of Afghan Turkestan. His son Salahuddin may be considered too young by those still alive in the older leaders’ generation, although they might not say so publicly. (8) There is no other obvious candidate from Rabbani’s province. The important military wing of the party, Shura-ye Nazari, is in the hands of the Panjshiris. Although officially disbanded, it is still a powerful network linked to the memory of resistance hero Ahmad Shah Massud, to which Massud’s brothers as well as Fahim, Abdullah, Qanuni and former defence and interior minister, Bismillah Muhammadi, belong. The surviving Massud brothers, Ahmad Zia and Ahmad Wali, both lack Ahmad Shah Massud’s charisma or are too intellectual for Jamiat’s membership base. Neither do they have his strong credentials as a fighter and commander. And Fahim did not name anyone who would take his place. This factionalism is another major factor for resistance against Atta’s ambitions for the leadership post.

Another 2009 election poster showing Abdullah and Atta – the one that enraged then president Karzai so much. Photo: Thomas Ruttig.

Conclusion: a step-by-step campaign with hurdles

Atta’s push for Jamiat’s leadership appears to be a first step towards a higher goal: the presidency, an ambition that he has long harboured. Now, as laid out above, the conditions to create a platform with and within Jamiat, seem to be aligning. He can play on the hurt pride of many Jamiatis and Tajiks now that, under Ghani and for the first time since 2001, there is no vice-president from their ethno-political group. He alluded to this in a videotaped message released on 28 October 2016, when he stated that Tajiks in Afghanistan had “suffered most” as the main drivers of the resistance, both against the 1980s Soviet occupation and in the struggle against the Taleban regime. He said they now have “the least representation at the top of the power pyramid and in the leadership of the government” (watch the video here).

Atta has been upfront about his ambitions, while keeping it ambiguous how he will proceed. He left the door open for two options: running on his own, as the Tajik and Jamiat’s candidate or running as a vice-presidential candidate on someone else’s ticket. Such an approach is not uncommon in a political environment, where all sides keep their options open until the last possible moment, in preparation for last-minute manoeuvres. In his statements, however, Atta clearly signalled that although he respects the claims of the older Jamiati generation for a leading position both in the party and the government, Abdullah has squandered his chances, and now it is his [Atta’s] turn.

Although he may feel that his chances had never been better, there are still a number of significant obstacles to overcome on his way to the top. The first is Jamiat’s notorious factionalism and the readiness of its leaders to be co-opted by other contenders, as Karzai capably demonstrated in the 2009 elections (when, with Fahim, he had a Tajik/Jamiati running mate, while running against a Tajik/Jamiati contender, Abdullah, thus splitting their vote bank). The second obstacle is the difficulty of building a broader coalition around Jamiat, as Tajik votes alone will not suffice to win the presidency. Given the unreliability of the Uzbek voter base, still controlled by Dostum (who twice, in 2009 and 2014, switched sides from a pre-election opposition alliance to the camp of the later – Pashtun – winner) will make this goal particularly difficult. Thus, success for Atta is all but certain.

Last but not least, the fact that the Balkh governor has opened launched his campaign for the leadership not only of Jamiat, but also for the presidency in 2019, could have another negative side effect: it could well overshadow matters that are more important to most Afghans, namely the country’s socio-economic situation and prevailing insecurity.

 

(1) Although Nur is the governor’s takhallus – the Afghan equivalent of a surname (that can, however, be changed and is not usually passed on to children) – most Afghans refer to him as “Atta.” This is his given or first name, but its use is not deemed as casual as it would be in the West.

(2) Before his appointment as governor, Atta was commander of the (then-) 7tharmy corps of the pre-Taleban and Jamiat-dominated Islamic State of Afghanistan. These so-called “Afghan militia forces” were partly disbanded and partly reorganised and incorporated into the army and police in the years after 2001.

(3) Officially, Abdullah ran for his multi-party alliance, the National Coalition of Afghanistan (Etelaf-e Melli-ye Afghanistan) of which Jamiat was one member. More detail on this coalition and its relationship with Jamiat in this AAN analysis.

(4) Source: “Balkh Governor Eager to Lead Afghanistan’s Jamiat-e-Islami Party“,
 Tolo News, 3 October 2011 (not online, in the author’s archive).

(5) During a seminar on the political discourse in Afghanistan on 19 January 2017, Qanuni said that the presidential system did not meet “the people’s needs, and in some cases added to the problems” (as summarised by 1TV on Twitter here and here) and that he was “against the centralised presidential system and will continue to call for a parliamentary system in the country.”

In 2014, after Fahim’s death and during president Karzai’s last months in office, Qanuni had also accepted the ‘Tajik’ vice-presidential post that had been held by the late Fahim before. Indirectly, this made him the most senior Jamiati in government at that point.

(6) This alleged offer came against the backdrop of the affair surrounding Uzbek leader and First Vice President Abdulrashid Dostum, who stands accused of having his guards rape a political rival and amidst debates of whether that would cost him his job (a media report here). These accusations emerged publicly in December 2016 (media report here).

(8) Salahuddin Rabbani, however, does not seem to have given up. On 22 February 2017, in a speech at Jamiat’s youth organisation, Sazman-e Jawanan Jamiat-e Islami-ye Afghanistan, he spoke in favour of a parliamentary system “as the best method of governance,” and criticised the fact that no seats had been allocated to political parties in the coming parliamentary election, and promised that Jamiat “will come forward on the scene more coherently in the next Wolesi Jirga elections” and that “we will focus more on the internal cohesion of Jamiat in the year ahead.” (It was unclear whether this “we” was a pluralis majestatis, actually meaning himself, or whether he meant the full Jamiat leadership in general.) His speech can be watched in this video.

Afghan women and girls often quietly endure harassment, including sexual harassment. Speaking out brings with it the possibility of their honour being called into question, and could lead to further restrictions being placed on their lives. Over the past few years, several legal initiatives have sought to address the issue of harassment. This has led to a situation in which two of them, in particular – the more progressive Elimination of Violence against Women Law (the EVAW Law) and a more recent, narrower Anti-Harassment of Women and Children Law – have been pitted against each other. AAN’s Ehsan Qaane (with input from Sari Kouvo) unpacks these legal initiatives and looks at how the issue of harassment has become embroiled in old conflicts among Afghan women’s rights activists and between the presidency and parliament.

There is no official record of the cases of harassment against women in Afghanistan. Harassment, whether it occurs within the family or educational institutions, in the workplace or the public sphere, is a little talked about phenomenon.

A report by the Afghanistan Independent Human Rights Commission (AIHCR) documenting violence against women between March and November 2016, for example, only included 34 complaints relating to harassment against women. Latifa Sultani, the Coordinator of the AIHRC’s Women’s Rights Unit told AAN, “all the registered cases of harassment against women were committed by husbands or close relatives of the female victims.” She added that the AIHRC had not received any complaints about women facing harassment in public spaces, workplaces or educational institutions. Sayed Ehsan Khaleq, a member of the legal board of the Ministry of Labour, Martyrs and Disabled People told AAN that while the ministry had received complaints from employees, including female employees, about unfairness in the work environment, none of the complaints had been about harassment.

The lack of any official record reveals a different story: the cases presented by Salam Watandar Radio Station, in a series of social reporting in the first half of 2016 (see here) indicate that with the increased presence of women and girls in the public sphere, cases of harassment had also increased.

The only other, more comprehensive survey specifically focusing on sexual harassment of women was carried out by the Women and Children’s Legal Research Foundation, based in Afghanistan. The survey, carried out in 2015, was based on interviews with 346 women from seven provinces: Kabul, Badakhshan, Herat, Balkh, Nangarhar, Kandahar and Kapisa. 90 per cent of the women interviewed said that they had faced harassment at least once in public spaces, 87 per cent had experienced it in their workplaces and 91 per cent in educational institutions. A smaller survey, carried out in 2016 by the Youth Development Association focused on Daykundi province, showed the occurrence of “sexual harassment at an alarming rate” of over 80 per cent of the 115 women and girls interviewed. Different forms of harassment reported from that province included:

Verbal harassment appears to be the most frequent form (24.7%), followed by phone calls and call dropping (22.7%), staring at women and girls (13.9%), street harassment (10.3%), bothering and disturbance (9.3%), and other forms of workplace harassment (touching, stalking etc) (7.2%).

That harassment of women should be a concern for the Afghan government and lawmakers was highlighted in March 2015 when President Ashraf Ghani spoke to the US Congress. Pledging to make educational facilities and work places safe for women, he said “A mental and cultural revolution must take place over the treatment of women in and by our society. There is no point talking about how much we respect women’s honour, if we let it go unpunished or allowed harassment in our streets.” (Watch the video, particularly from minute 49 to 57, here.)

The Afghan Penal Code and the EVAW Law

The current Afghan Penal Code, which dates from 1976, criminalises rape and sexual assault against women and men, but it does not include any provisions relating to harassment or sexual harassment. (1) The Elimination of Violence Against Woman (EVAW) Law adopted by presidential decree in 2009 is the first Afghan legal act specifically addressing this problem. The EVAW Law is a very progressive law within the Afghan context. Besides a broad approach to violence against women, including the harassment of women, the law also addresses forced and early marriage, as well as polygamy.

Harassment of women is defined in article 3 (7) of the EVAW Law as “using words or committing acts by any means, which causes damage to the personality, body and psyche of a woman.” But these “acts” and “words” remain undefined. According to article 30, a person convicted of this offence can be sentenced from three to twelve months in prison. In cases where the person who committed the harassment misused his authority, the sentence cannot be less than six months. (2)

According to article 7 of the EVAW Law, the victims or their relatives can register complaints with the police, the huquq (civil departments within the Ministry of Justice), at courts or in other relevant offices. These institutions must tackle the complaints and inform the Ministry of Women’s Affairs (MoWA). Based on the same article and article 16, the High Commission on the Elimination of Violence (HCEV), chaired by MoWA and with participants from all relevant government institutions (3) is in charge of coordination between the different institutional actors and for developing policies and regulations for the implementation of the EVAW Law. One such regulation is the Anti-Harassment Regulation that will be addressed later in this dispatch.

Besides criminalising harassment against women and related crimes, the EVAW Law includes provisions that seek to ensure that government institutions work to address social and cultural patterns of harassment. For example, according to article 11, the Ministry of Information and Culture is required to broadcast programs on TV channels and radio stations and publish articles to raise public awareness about women’s rights, the root causes of violence against women and to create awareness about crimes committed against women.

The EVAW Law, however, has been in limbo for almost three years. This is due to a failed attempt by MP Fawzia Kufi, the chairwoman of the Women’s Rights Commission of the Wolesi Jirga, the lower house, to get it approved by parliament on 18 May 2013. Kufi had pushed for the presidential decree to become a ‘full law’ against the advice of other activists on the subject who did not want to involve parliament, fearing its conservative majority would reject the law and render it useless – as was indeed the case. The main driving force was Qazi Nazir Ahmad Hanafi, head of the Legislative Commission and the law’s most fierce critic. The law then only survived because the spokesperson of the Lower House, Abdul Rauf Ibrahimi, took it off the agenda and sent it back to the Women’s Rights Commission (see AAN dispatches here and here).

The Anti-Harassment Regulation

Afghan women’s rights activists have long been lobbying for the fine-tuning of the EVAW Law’s definitions and procedures relating to harassment that they considered not specific enough. This included Zarqa Yaftali, the chairwoman of the Women and Children’s Legal Research Foundation – the organisation mentioned above – and a member of MoWA’s legislation committee as well as many other members of the Afghan Women’s Network (AWN), one of the country’s largest women NGOs. The survey on sexual harassment carried out by Yaftali’s foundation in 2015 provided fresh input to these efforts. Zarqa Yaftali told AAN that the findings of the survey were the basis from which the Anti-Harassment Regulation was developed.

The first draft of this regulation was prepared by the MoWA, in light of Article 16 (6) of the EVAW Law, (4) with technical support of UN Women. (5) The draft was re-worked by the Ministry of Justice, then approved by the Afghan cabinet on 5 September 2015. It was finally published on 3 October 2015.

The regulation clarifies what constitutes harassment of women, providing a definition similar to that provided by the UN Secretary General in 2008 (6), as well as a stronger mechanism through which to address harassment cases. The definition, in the regulation’s article 3, is as follows:

Hostile action or physical contact with women; publication of posters, pictures, audio and video clips that are against ethics; verbal or non-verbal abuse or illegitimate demands; intimidating or abusing a woman by threatening a demotion, transfer, termination, withholding of promotion, or withholding of a positive evaluation.

The key terms in the definition were also further elaborated upon in the regulation, as follows (highlights by AAN):

1. Hostile action is an unfavourable action that might harm the human dignity of a woman or cause resentment [or] create an atmosphere of intimidation and humiliation for a woman.
2. Physical contact is the touching of a woman’s body (by a man who is not her mahram).
3. Verbal harassment: causing harm to a woman’s safety or wellbeing by use of words, phrases or jokes and humour [sic] describing the body, clothing or behaviour; harassment over the phone; telling stories; or expressing [offensive] emotions, ideas, or feelings.
4. Nonverbal harassment: posting compromising images of a woman on social media or distributing offensive topics regarding sexuality by email, taking pictures, publishing or distributing films or personal and family photographs without permission, or any other such actions which might will destroy the personality of a woman and divest her psychological health and dignity.
5. Organisation: ministries, governmental institutions, both civil and military, independent commissions, educational institutions, institutions of higher education, enterprises, private businesses and joint ventures, non-governmental organisations and foreign organisations which are located in Afghanistan, and where the individual[s involved] are working or studying.

The regulation did bring more clarity – or at least detail – to the EVAW Law’s definition of harassment. Nevertheless, it also created new problems. For example, physical contact as a form of sexual harassment was defined as “touching the body of a woman who is not mahram” (according to Islamic Law, mahram women are the women a man cannot marry – a sister, daughter, mother – or his own wife). This definition, however, excludes mahram women from those protected from becoming victims of sexual harassment, according to Latifa Sultani of the AIHRC. Indeed, the women involved in the 34 cases of sexual harassment registered by her commission in 2016 (see above) had been harassed by their husbands or close relatives, ie their mahrams.

The mechanisms for dealing with cases of harassment of women to be created based on this regulation (particularly in workplaces and educational institutions), would be more robust than anything the EVAW Law had stipulated to date. Both at the central level of government and at the provincial level, the boards implementing the regulation would have the authority to order administrative punishment, except when sexual harassment had a punitive element. In these cases, the boards would have to send the complaints to the relevant judicial organs. (7) The regulation is less clear regarding the role of non-governmental organisations. It obliges them to create a similar mechanism but is unclear on the specifics.

The politics of the EVAW Law versus the anti-harassment law

In October 2016, Hanafi managed to bring the Administrative Board (ie the presidium) of the Lower House to put pressure on the Women’s Rights Commission to bring the EVAW Law back onto the house’s agenda; had it not, the law would have been handed over to the Legislative Commission where – given its chairman Hanafi’s enmity to the law – it would likely have been watered down or even been dismantled. When the parliamentary Women’s Rights Commission received this ultimatum, it chose instead to draft new legislation dealing with the same issues, the Anti-Harassment of Women and Children Law, and not build on the existing EVAW Law and its Anti-Harassment Regulation. (8) In fact, the MPs’ take the view that the new law replaced the EVAW Law, which they objected to and never approved. Masuda Karokhi, the deputy head of the commission, confirmed to AAN that this law was “a new law to protect women’s rights.”

The new law was passed by the Lower House on 9 November 2016. The Upper House followed in approving it on 25 December 2016, with only some minor changes to the language (for example, the senators expanded the law’s validity from women only to include children in some articles.) A few days before parliament went into its winter recess on 20 January 2017, a joint commission of both houses chaired by Senator Humaira Nemati with MP Kufi as deputy, approved the amendments put forward by the Upper House.

The finalised law was then sent to President Ghani for his verification, but so far he has neither signed nor rejected it. Neither has it been published in the official gazette. (AAN has unsuccessfully requested information on the status of the law from the President’s Office several times.) Nevertheless, according to article 94 of the constitution, the Anti-Harassment Law has become applicable law, even if it has not yet been explicitly approved by the president. (9)

Interestingly, the law passed through both houses with much less criticism from conservative MPs such as Qazi Hanafi than that directed at the EVAW Law. Hanafi told AAN on 29 March 2017, “The Anti-Harassment Law was passed swiftly because the law was according to Sharia and for the benefit of women and children.” Being in part ‘un-Islamic’ was one of the main arguments against the EVAW Law. (Read AAN analysis of the mobilisation against the law outside parliament here.) However, the tug-of-war concerning the two laws also reflects the long-strained relationship between the country’s executive and legislative powers (read AAN analysis of this issue here.) So neither side wanted to give in.

Although women’s rights activists agree on the need for strong mechanisms to prevent the harassment of women in public spaces, workplaces and educational institutions, not all activists are happy with the Anti-Harassment Law. Samira Hamidi, a member of the board of the Afghanistan Women’s Network (AWN) told AAN that her organisation and Medica Afghanistan (10) have lobbied the President’s Office, the First Lady’s Office and the Second Vice-President’s Office to convince the president not to sign it. Another source (who spoke with AAN on the condition of anonymity) said that the MoWA had also tried to convince the president not to sign the law. In a conversation with AAN on 29 March 2017, MP Masuda Karokhi claimed that President Ghani had not yet signed the law because the AWN had asked him not to. She further said that the Women’s Rights Commission of the Lower House would put pressure on the president if he ignored or postponed the endorsement of the law.

The choice regarding which methods to adopt in order to address the harassment of women has, in the first instance, legal dimensions. The EVAW Law’s definitions have been considered to be too unspecific, and the Anti-Harassment Regulation – designed to overcome this shortcoming – do not have a status of a law. This opened up the way for the law’s opponents to forward the new anti-harassment law. Secondly, however, there are also political dimensions: this is a power-struggle between the MoWA, which initiated the Anti-Harassment Regulation in 2015, and the Women’s Rights Commission of the Lower House, which promoted the Anti-Harassment Law. There has also been competition between AWN and MP Kufi, since AWN opposed Kufi’s strategy to present the EVAW Law to parliament. The fact that Kufi and her team do not seem to have consulted wide enough on the Anti-Harassment Law has not helped relations: AWN accuses Kufi of not involving them in the drafting of the law and ignoring its recommendations on it. Other women’s rights activists have echoed these accusations. In contrast, Zarqa Yaftali, the chairwoman of the Women and Children’s Legal Research Foundation (WCLRF), who brought up the idea of the Anti-Harassment Regulation in 2015, and Aziz Rafiee, the chairman of the Afghan Civil Society Forum, one of the biggest civil society networks, told AAN that their organisations had worked very closely with Kufi’s Women’s Rights from the beginning to the end of the legislative process.

Both the proponents and opponents of the anti-harassment law continued to lobby both the presidential office as well as the Second-Vice President for their demands to be heard. According to both a source in the Office of the Second Vice-President, as well as to Samira Hamidi, on 20 February 2017 Second Vice-President Sarwar Danesh apparently told a group of members of both sides that both he and the president thought the Anti-Harassment Law was a good achievement, however there were a number of technical problems. He promised that the government would amend the law to improve it further.

Conclusion: double limbo or pragmatic compromise?

Laws and legal mechanisms to prevent the harassment of women are undoubtedly in urgent need in Afghanistan. For the moment, however, the country has two such laws that exist simultaneously and compete with each other, the EVAW Law and the Anti-Harassment of Women and Children Law. The EVAW Law – which came first – already criminalises sexual harassment, and the later-added Anti-Harassment Regulation fills its legal gaps, sharpens it definitions and defines implementing mechanisms. There is, in fact, no need for the anti-harassment law. That it emerged anyway has, as we have seen, to do with the competition between the groups of both law’s initiators and the strained relations between the presidency and the parliament.

The EVAW Law’s fate thus remains unknown; it is even unclear whether it will be presented to parliament again. With this law, the additional regulation and its clarifications are also at risk. While the Anti-Harassment Law does, then, ensure that harassment is addressed in a law, the 15 other offences covered by the EVAW Law – such as forced and early marriage and polygamy – might be dispenses from legal coverage.

Edited by Sari Kouvo, Thomas Ruttig and Emilie Jelinek

 

(1) The Penal Code is currently under review. The 1976 version states in Article 429:

(1) A person who, through violence, threat, or deceit violates the chastity of another (whether male or female), or initiates the act, shall be sentenced to long imprisonment, not exceeding seven years. (2) In the case where the person against whom the crime is committed is less than eighteen years old, or the person who commits the crime is one of the persons specified under paragraph 2 of Article 437 of this law, the offender shall be sentenced to long imprisonment, not exceeding ten years.

(2) Related crimes recognised in the EVAW Law are intimidation and humiliation of women. Article 3(6) and (5) define intimidation of women as: “performance of acts or use of words which result in or lead to fear in women.” And humiliation of women as: “using words or committing acts which belittle the personality of a woman.”

(3) Government institutions with membership in the commission are: the Attorney General’s Office (AGO), the Ministry of of Labour, Martyrs and Disabled People (MoLMDP), the Afghanistan Independent Human Rights Commission (AIHRC), Kabul Family Court, the Ministry of Women’s Affairs (MoWA), the Ministry of Religious Affairs, Hajj and Endowment (MoHIA), the Ministry of Education (MoE), the Ministry of Higher Education (MoHE), the Ministry of Information and Culture (MoIC), the Ministry of Justice (MoJ), the Ministry of Interior (MoI), the Ministry of Public Health (MoPH) and the Afghanistan Independent Bar Association (AIBA).

(4) Article 16 (6) of the EVAW Law stipulates:

Suggesting regulations and adopting relevant rules/procedures for the purpose of better implementation of this law.

(5) This is the official short version of The United Nations Entity for Gender Equality and the Empowerment of Women.

(6) The office of UN Secretary General, in a bulletin published in 2008 for the internal regulations of the organisation on the “Prohibition of discrimination, harassment, including sexual harassment, and abuse of authority” defined it as follows:

Harassment is any improper and unwelcome conduct that might reasonably be expected or be perceived to cause offence or humiliation to another person. Harassment may take the form of words, gestures or actions which tend to annoy, alarm, abuse, demean, intimidate, belittle, humiliate or embarrass another, or which create an intimidating, hostile or offensive work environment. Harassment normally implies a series of incidents. […]

Regarding sexual harassment, this UN bulletin clarified that “sexual harassment is any unwelcome sexual advance, request for sexual favour, […]” that “it can take the form of a single incident.” The bulletin also mentioned that harassment and sexual harassment “are particularly serious when accompanied by abuse of authority.”

(7) At the central level of government, these boards would be chaired by a representative from one of the organisations on the board (the Ministry of Justice, the Ministry of Women’s Affairs or the Ministry of Hajj, Religious Affairs and Endowments); in the provinces, where this board would also be composed of local representatives from these same ministries, it would be chaired by a representative from the provincial governor’s office.

(8) The anti-harassment law defines harassment in article 3 as “physical contact, illegitimate request, verbal and non-verbal harassment and any other acts that caused psychological, physical damage and humiliated a woman or a child.” The last part of this definition, “any other acts that caused psychological, physical damage and humiliated the dignity of a woman or a child” is broader than the definition of violence against women in Article 3 of the EVAW Law. Paragraph 2 of Article 3 of the EVAW Law defines violence as “committing those acts mentioned in Article 5 of this law which lead to damage to the personality, body, property, and psyche of a woman.” The EVAW Law, at least, limited criminal acts to very specific acts, which are named in Article 5 of the Law. But the Anti-Harassment Law keeps it open to any acts. In addition to this, physical contact, as a form of sexual harassment, shall result in superficial damage on the body of the survivor, according to the Anti-Harassment Law. However, most physical contact, as a form of sexual harassment, does not leave signs on the victim’s body.

The second chapter of the Anti-Harassment Law includes mechanisms of registering and addressing complaints of victims of sexual harassment. These mechanisms are very similar to the mechanisms in the EVAW Law for handling violence against women. The law introduces a High Commission for the Prevention of Sexual Harassment as the highest body for dealing with sexual harassment complaints and to combat the culture of sexual harassment. It is made up of the deputies of eight relevant ministries (the Ministries of Interior; Hajj, Religious Affairs and Endowments; Justice; Public Health; Culture and Information; Education; Higher Education; and Women Affairs), and the Attorney General’s Office; and representatives of the Afghanistan Independent Human Rights Commission (AIHRC), the Supreme Court, and Afghanistan Independent Bar Association (AIBA). Under this high commission, committees are to be established in all governmental organisations, with the same duties as the boards had according to the Anti-Harassment Regulation (discussed above).

(9) Article 94 of the anti-harassment law says:

Law shall be what both houses of the parliament approve and the president endorses, unless this constitution states otherwise. In case the president rejects what the parliament approved, the president shall send it back, within fifteen days of the date from when it was presented, to the Lower House mentioning the reasons for rejection. Within the expiration period or if the Lower House re-approves it with two thirds of all the votes, the draft shall be considered endorsed and enforceable.

(10) AAN received Medica’s letters and petitions, which were sent to the president and the first lady, who takes a strong interest in these issues.

Afghanistan continues to make inroads into the world of cricket. The men’s team has progressed from being a disorganised band of reckless hitters of the ball in the early 2000s to a well-balanced team. Two Afghans recently got contracts to play in the biggest cricket league in the world, the Indian Premier League, with deals worth hundreds of thousands of dollars. AAN’s cricket-loving Sudhanshu Verma and ‘not very interested in cricket’ Kate Clark look at how, in two decades, Afghan men have come to compete with the big boys of the game. Afghan women’s cricket, though, they say, has barely begun.

For any reader who finds cricket something of a mystery, a brief description of how the game works can be found in an Appendix. For readers interested in sport generally, they might also like to read our reports on Afghan football, brought together in a dossier here.

18-year-old Afghan national team player, Rashid Khan, was in Harare, the capital of Zimbabwe, playing for Afghanistan in a One Day International series on 20 February 2017, when bidding for the Indian Premier League (1) began. The IPL is the biggest, richest cricket league in the world, watched by millions and attracting the world’s top players. Every year before the season starts, the eight IPL teams bid for new players. In the IPL, the money bid goes to the players themselves (although, as in football, teams may also ‘buy’ players from other teams). “My parents woke up early to watch the auction,” Rashid told the website, ESPNcricinfo. “I was still sleeping when they called me and told me to get up and watch because I was coming up.” He had doubts, he said, as to whether he would attract any bids from any of the IPL teams, but then heard his name called out.

Our second Afghan leg-break specialist Rashid Khan joins the #OrangeArmy brigade. Here's to the Rise of Orange. #IPLAuction pic.twitter.com/BrMIMmNimo

— SunRisers Hyderabad (@SunRisers) February 20, 2017

Rashid is a special type of bowler, a ‘leg spinner’ who makes the ball spin, or turn, leading it to bounce unpredictably on the pitch and making it tricky for the batsman to play. The bidding for him was the biggest surprise of the 2017 IPL auctions. He is only an ‘Associate player’ (a middle rank related to the level of cricket he has played) (2) and has been playing international cricket for less than 18 months. Nevertheless, two top teams, Mumbai Indians and defending champions Sunrisers Hyderabad, bid for him, hard and fast (you can watch Rashid’ bidding here). Rashid bagged one of the most lucrative contracts this year: Sunrisers offered him a jaw-dropping sum of four crore (forty million) Indian Rupees (about USD 600,000).

“It feels unreal,” Rashid told The Deccan Chronicle, “that I will be sharing the dressing room with the players I have grown up watching on television.” He named such cricketing stars as India’s Yuvraj Singh and Shikhar Dhawan, Australia’s David Warner and New Zealand’s Kane Williamson.

Rashid will also have a fellow Afghan on the team. In the same auction, just ahead of him, his Afghan national team-mate, Muhammad Nabi, became the first Afghan cricketer to join the IPL, also snapped up by Sunrisers Hyderabad. Nabi has an outstanding track record at the international level, ranked by cricket’s governing body, the International Cricket Council (ICC), as the seventh best all-rounder (ie he bats and bowls) in the world in One Day Internationals cricket. Nabi is also one of ten players in the last two years who has scored more than 600 runs and taken over 60 wickets in the shortest version of the professional game, known as T20 Internationals. Nabi also has the third-best ‘economy rate’ – a statistic which measures a bowler’s ability over his career – in T20, (3) in T20, behind only two men, both stars of world cricket, West Indian Sunil Narine and Pakistani Shahid Afridi. Nabi was the top wicket-taker in the 2016 World T20. (For any readers, now feeling lost amid the cricketing terms, the basic message here is that Nabi is world class. See also the Appendix.)

HISTORY made at #IPLAuction – Mohammad Nabi becomes the first Afghanistan cricketer to join VIVO IPL and joins the #OrangeArmy brigade. pic.twitter.com/esfYc4xaYa

— SunRisers Hyderabad (@SunRisers) February 20, 2017

It is immensely important for the national game that Afghan cricketers are getting into the IPL. It provides them with an environment where they can raise their game further and there is the hope that popularity on the international stage will filter down into Afghan cricketing more generally, boosting aspiring youngsters to train and play better. It is also a remarkable success story, given that, 20 years ago, cricket was scarcely played by Afghans at all.

Origins

Afghan cricket is a child of conflict and exodus. When Afghans fled the Soviet occupation to cricket-loving Pakistan in the 1980s, youngsters growing up there learned to play ‘tape-ball’ cricket. It is a popular Pakistani street version of the game, which uses makeshift cricket bats and covers tennis balls with gaffer tape to take the bounce out of them, so that they more closely resemble the leather ball used by richer players. In the 1990s, Pakistan was one of the dominant cricketing nations, winning the World Cup in 1992 and cricket flourished at the local level in Pakistan. It also became a popular amateur sport for Afghan refugees living around Peshawar and it was refugees, among them Taj Malik and Allah Dad Noori, who set up the Afghanistan Cricket Federation in the 1995 (see here).

Afghan refugees playing cricket at the Royal Brussels Cricket Club in Belgium (May 2016). Photo: Sudhanshu Verma

Kate Clark remembers meeting members of the Afghan cricket team in Kabul in the last years of the Taleban regime when they were playing on what was then open ground in Wazir Akbar Khan near the (current) British Embassy – they competed for space with Kuchis grazing animals and occasional travelling bee keepers. In 1999, the Afghan cricketers also came to the attention of one of the oldest cricket clubs in the world, the Marylebone Cricket Club, the MCC. Once also the sport’s governing body, the MCC still administers the rules of the game and, in 1999, had only recently broken two hundred years of tradition by allowing women into the ground (4). An MCC member, Stuart Bentham, came to Kabul as a shareholder with the mobile telecommunications company, Afghan Wireless and Communications Company (AWCC), then being set up. He saw cricket being played and persuaded the MCC to donate kit – bats, balls, pads and wickets – to the players. The Afghan cricketers played a match in the Kabul stadium – with official blessing from the Taleban, then in power. This was not unusual – football, martial arts and other sports were also played there – but it did lead to a fine opening line in a Reuters report, that two of the most patriarchal organisations in the world, the MCC and the Taleban, had cooperated over the game of cricket.

Afghans playing cricket in Kabul, 1999, in a field in Wazir Akbar Khan, near the roundabout in front of the current British embassy. The field was also used by Kuchis for grazing their animals and by beekeepers. It is now built on. (photo: Stuart Bentham)

The return of millions of refugees after the fall of the Taleban boosted the game on Afghan soil and it began to develop rapidly. If one tries to put together the journey of Afghan cricket since then, some of the major milestones would be:

• May 2003, the Afghan Cricket Federation hosts the very first Afghan national cricket trials, with players coming from across the country to the Chaman-e Huzuri Maidan in Kabul after hearing about the trials by word of mouth. In the opening match of the ‘First Olympia Lube Oil Cricket Tournament’, an International Security Assistance Force (ISAF) team lost to that of Malik’s Kabul Academy. The eventual winners of the tournament were the Khost cricket team.
• 2004 Asian Cricket Council Elite Cup, an event in which Associate and Affiliate members of the ICC compete. Afghanistan beat Bahrain – its first international victory – (although they lost all other matches).
• 2007 Afghanistan won its first international trophy (shared with Oman) at the Asian Cricket Council T20 tournament, a tournament for Affiliate and Associate teams (low ranking members).
• In 2008 and 2009, Afghanistan won two more entry-level international cricket tournaments Division Five and Division Three of the World Cricket League. (4) It was then eligible to compete in the qualifiers for the 2011 World Cup. It only finished sixth, meaning it missed out on the World Cup. However, that sixth place meant Afghanistan could now play One Day Internationals for the first time (see here and here). “Today,” one of the players said, in a moment caught on camera by the makers of the documentary film “Out of Ashes, “we bought Afghan cricket from refugee camps to international recognition!”
• 2009, Afghanistan went on to again win the Asian Cricket Council T20 tournament.
• February 2010, Afghanistan defeated Ireland to qualify for the World T20, but could not win any match in the final tournament. In December of that year, Afghanistan won the Intercontinental Cup at its very first attempt; this is a ‘First-Class’ tournament, ie teams play matches of at least three days (see Box 1) organised by the ICC. In the same year, Afghanistan also won the Asian Cricket Council Trophy and in 2011, Asian Cricket Council’s T20 tournament.
• In 2012, Afghanistan played its first ever One Day International, against Pakistan in Sharjah, but lost the game. It was a big moment in Afghan cricket history and even the Taleban’s spokesperson sent a message of support to the Afghan team. That year, Afghanistan finished as runners-up in the World T20 qualifiers and qualified for the World T20. Again, it failed to register any win during the final tournament.
• 2013 Due to their consistently good performance, Afghanistan was promoted from Affiliate (a status it shared with 55 other countries) to Associate member (along with 36 others) of the ICC. That year, Afghanistan came second in the World Cricket League Championship and qualified for the 2015 World Cup. Also in 2013, Afghanistan registered its fourth consecutive victory in the Asian Cricket Council T20 tournament.
• 26 February 2015 Afghanistan registered their first victory in a Cricket World Cup match, defeating Scotland by 14 runs. They lost all other matches, however, and went out in the first round.
• 2016 Afghanistan played in the World T20 in India. This time, Afghanistan won all its group matches and managed to get into the second round of the final tournament but was unable to qualify for the semi-finals. However, they did defeat the eventual champions, the West Indies, during their final match in the second round of the tournament. They also almost wrecked the English batting. A ‘giant killing’ looked to be on the cards until English batsman Moeen Ali rescued his team. Kate describes how, in the AAN office, little work was done by Afghan colleagues during this game. Not being a cricket fan herself, I was not watching, but when the taunts tailed off into silence, I gathered England was asserting itself and indeed they did win.

Defending 123, Afghanistan pulled off one of their greatest victories ever, beating West Indies by 6 runs in the 2016 World T20! #OnThisDay pic.twitter.com/gtvUCx5eKr

— ICC (@ICC) March 27, 2017

Afghanistan’s performance and (when appropriate) post-victory dance of the attan – at the ground made them overnight stars in the world of cricket. During the competition, Muhammad Shahzad, the team’s wicket-keeper batsman, known for his theatrical celebrations, was the fourth highest run scorer in the tournament, ahead of many big names in the game. Muhammad Nabi and Rashid Khan, the two Afghans players who got IPL contracts this year, were the top two wicket takers, ahead of many feared bowlers in the tournament.

This year, the Afghan team has pulled off another stunning feat by soundly beating Ireland (along with Afghanistan, the best team at the Associate level) in their third T20 match on 12 March. Afghanistan scored runs at an unprecedented speed to send T20 International records tumbling. Muhammad Nabi scored a blistering eighty-nine runs at an unheard ‘strike rate’, of 296.66 (5). This enabled Afghanistan to make 104 runs from the final six overs – the highest total ever added from the final 36 balls in T20 International’s history. Afghanistan finished with 233 runs, the highest ever score by an Associate side and the eighth highest score of any team in a T20 International competition. The Afghan onslaught ended particularly badly for Irish bowler Barry McCarthy. He was hit around the ground for sixty-nine runs off four overs; it was the most expensive bowling spell in the history of T20 International competitions (see here). Afghanistan have also just won a One Day International series against Ireland by winning three of a five match series on 24 March 2017.

Congratulations @ACBofficials for wining the championship in the ODI series vs @Irelandcricket pic.twitter.com/iXTmceIvNy

— ارگ (@ARG_AFG) March 24, 2017

While most records in cricket do not last very long, they are an essential element for performance evaluation in this sport. Afghanistan has now won eleven T20 games, surpassing England and Ireland’s joint record for the most consecutive T20 International wins. The ICC currently ranks Afghanistan’s Muhammad Shahzad as the fourth highest scorer in T20 Internationals, and the seventh best batsmen in the world at this level, Rashid Khan as the fifth best bowler and Muhammad Nabi as the fourth best all-rounder.

Afghanistan's remarkable form in T20Is continues! #AfgvIre #howzstat pic.twitter.com/cxzZFi92Xg

— ICC (@ICC) March 12, 2017

Domestic Challenges, passion and international support

The Afghan national team’s rise has been spectacular, an achievement made even more remarkable by the backdrop of the ever-spreading conflict in their homeland, with its heavy cost to lives. Andy Moles, former New Zealand coach, who coached the Afghanistan’s team for the 2015 World Cup, described how:

Sometimes you hear a boom go off somewhere when coaching in the middle. You see Black Hawk helicopters flying over the ground, going on missions and coming back. Like coaching in a war movie. Actually it is a very surreal situation because I don’t feel threatened. I don’t feel scared when leaving for work in the morning.

Cricket has flourished in Afghanistan despite not just the insecurity, but the lack of infrastructure. Rather, passion and self-belief has allowed cricketers to thrive in such a hostile environment. There has also been international support. Afghanistan cannot host home games because of the conflict and the lack of good enough facilities. The United Arab Emirates, Sri Lanka and India have all stepped in over the years to host its games; currently Afghanistan’s home ground is at Greater Noida, right outside New Delhi in India.

Regional Club Level T20 Tournament – Spenghar Vs Band-E-Amir
Photo Story: https://t.co/MtDi12RjIh pic.twitter.com/tCPGM3ayHB

— Afghan Cricket Board (@ACBofficials) December 16, 2016

Afghanistan has also had agreements and received support from Pakistan, Sri Lanka and India to develop cricket in the country. Their players have received training in Bangladesh, and technical support from Australia and the MCC in England. They even had an opportunity to train under the Pakistani batting legend Inzamam ul-Haq before the Pakistan Cricket Board recalled him to be the chief selector for the Pakistani national cricket team. To help Afghanistan develop domestic talent, India is funding the building of a stadium in Kandahar. Non-cricketing nations have also helped, with €700,000 funding from Germany to build a stadium in Khost. The Swedish Committee for Afghanistan, a non-governmental organisation with a long history in the country, and the UK government have also backed the development of the game, supporting the construction of cricket pitches in 20 schools in Kabul, Kunduz, Laghman, Nangarhar and Wardak. Another NGO, Afghan Connection founded by a British obstetrician, Dr Sarah Fane, and supported by the MCC, has also helped nurture cricketing talent and built local cricket facilities in twenty-two provinces. Cricket is one field where international cooperation has truly worked. At least, it has for the men’s game.

Glittering opening ceremony for new Khost Cricket Stadium, December 30, 2016.https://t.co/wFGfattyFp@ICC @pajhwok @TOLOnews pic.twitter.com/5YfF8lTsK6

— Afghan Cricket Board (@ACBofficials) December 27, 2016

In Afghanistan, cricket is still somewhat associated with Pashtuns, particularly easterners ­ who live in close proximity to Pakistan, a traditional cricket nation –, as early members of the team and administrators were from this group and so cricket developed more strongly in the east. (See one commentary here) It is not uncommon to hear arguments about what Afghanistan’s ‘national sport’ is – football or cricket (before the wars it might even have been hockey, forgotten since)? – as if there had to be one sport only, and buzkashi might not be picked if there did have to be choice. Players from Tajik, Uzbek, Hazara, Pashai and Nuristani backgrounds, Afghan journalist Malik Achakzai told The Diplomat, were all now playing and had made their way into the domestic cricket teams, just below the national team. So, the era of an exclusively Pashtun national team may soon be over. Also, if the Afghan national cricket team continues to advance and compete well against the best in the world, the game’s popularity nationwide could well follow.

Men Only?

A more intractable problem may be the dire state of Afghan women’s cricket. Like most of the cricket playing nations, men dominate the Afghan game. Unlike other countries, however, in Afghanistan, women have barely got onto the pitch. Like men’s cricket, the women’s game was brought back from Pakistan by a refugee, Diana Barakzai. She created and captained a women’s team in 2009. The Afghan Cricket Board officially established a women’s division in 2010. Scarcely anything, however, has been done to develop the women’s game, at a domestic or national level, despite support from donors. Afghan women have never represented their country in any official game, although they did play in a local six-team tournament in Dushanbe, Tajikistan, in 2012. The Afghan team, captained by Barakzai, won.

Shafiqullah Stanikzai, chief executive officer of the Afghanistan Cricket Board, claimed to The New York Times that the national women’s cricket programme was operating in secret. “We are not publicizing that due to certain limitations,” he added. “The national team is functioning but at a very basic level, as they are not good enough to compete at an international level.” However, Peter Anderson, an Australian cricket coach who was appointed as the head of Afghanistan’s National Cricket Academy in 2014, told the paper the Board had dismantled the women’s team that emerged during initial progress in 2009-10. Diana Barakzai backed this up: the Afghan women’s team, she said, had not even practiced for years, yet alone played. Social sensitivity is certainly a challenge, especially when, as Barakzai contends, it extends to the Afghan Cricket Board. She resigned from the team in 2014, telling Reuters the Board had obstructed its progress because of a belief that women should not leave home unescorted, or be given the chance to learn the sport. “Afghanistan’s cricket board does not support cricket for women,” she said, “even though I have 3,700 girl cricketers across Afghanistan.”

Cricket workshop organised by the USAID Afghanistan at the foundation stone laying ceremony of Kabul National Cricket Stadium in November, 2010. Photo: USAID

Social conservatism is certainly a barrier for women and girls wanting to play cricket. Sarah Fane, founder of the cricket-promoting NGO, Afghan Connection, told the cricket news website Cricwizz, that they work “in a very culturally sensitive way, only in communities where they want us to be there. Boys and girls are taught separately.” Diana Barakzai, who is now an ICC-certified coach and works with girls at the school level, also says there is no lack of enthusiasm or ambition among Afghan girls to play cricket, just lack of opportunity.

Not having an Afghan women’s game is significant and not just for women cricketers. If Afghanistan wants to become a full member of the ICC and be eligible to play test matches, the five-day version of the game, it will have to have women’s cricket in its cricketing structure. (ICC’s criteria for test status can be found here.) One un-named “leading figure involved in Afghan cricket” told The Independent  in 2014 that the Afghan Cricket Board “wanted a women’s department just as a symbolic thing to show to the ICC.”

Reporting on the game

For those not brought up with cricket, this dispatch may have been a tricky read. Cricket is a game full of specialist vocabulary: runs, innings, overs, wickets, leg spinner, silly mid-on, silly mid-off, googlies, being in and being out. For Afghan sports reporters trying to report on the game, there has also been a linguistic challenge: how to commentate on matches, especially to radio listeners new to the game. In other South Asian nations, people have grown up using the English terms (which do not have obvious meanings even for native speakers), but that hardly helps newcomers to the game. BBC journalist Emal Pasarly has described how his team decided to translate terms (he speaks about Pashto only), where they could. Some were relatively easy:

Runs became ‘manda’, which means ‘running’. Batsman became ‘jorawuankay’ – the run maker. Umpire was ‘lobsar’ – the overseer. ‘Top-achawunkay’ – literally the person who is throwing a ball – replaced bowler.

However, some things, they found, could not be translated:

“For gulley,” said Pasarly, “I used to say in our commentary ’45 degrees from the batsman’… so I had to describe the position on the field’… It was the same for positions like mid-off or mid-on.’”

Some terms proved impenetrable, resistant to both translation and paraphrase. ‘LBW’, for example, is short for ‘leg before wicket’ when the ball would, in the umpire’s judgment, have hit the wicket if the batsman’s leg had not been in the way. If LBW is called by the umpire, the batsman or woman is ‘out’, his time with the bat over. Pasarly said they just decided to keep LBW in English.

The Afghan Cricket Board has officially adopted the wording developed by the BBC team, as have other media, after they started to cover the sport in around 2010.

Towards Test Match status?

Based on the performance of its men’s team and the thriving domestic cricket scene, Afghanistan is starting to mirror most of South Asia where youngsters, using makeshift cricket gears, turn patches of rough, empty land into cricket grounds. Across the country, local teams are also playing matches, and even in remote towns, a carpet thrown over a twenty-two yard patch on the ground serves as a pitch on which to bat. Kabul and Jalalabad are leading the way: both cities host matches that attract huge crowds. Most exciting is the promise young cricketers are showing. The Afghan Under 19 team finished 7th in the Under 19 World Cup in 2014, beating cricketing powerhouse Australia during the tournament.

Afghanistan is now working to achieve Test Match status from the ICC. For many cricket fans, especially the more orthodox, test cricket is still the one true standard to judge a team’s calibre by. In test cricket, national teams play a series of three or five matches, each one lasting five days. The name of this version of the game stems from its long, gruelling nature; it is a test of the relative strengths of the two sides and requires endurance, consistency, tactics and a well-balanced team to win.

Afghanistan’s application for Test status may well hit a wall, however, because of its failure to develop women’s cricket. For now, and unless the situation for women improves, or the ICC changes its guidelines, Afghan cricket fans will have to make do with the short version of the game. They do not have to wait long for this season’s excitement to start, though: the 2017 season of the Indian Premier League ‘kicks off’ in just over a week, on April 5, when defending champions, Sunrisers Hyderabad, the team of Nabi and Rashid, play their first match. Many Afghans will be watching their star players closely.

 

Appendix: What is cricket?

Cricket is played between teams of eleven people, with each team taking it in turn to bat. Three sticks are pushed into the ground, with two shorter pieces of wood positioned on top of them: this is the ‘wicket’. 22 yards away (about 20 metres) at the other end of the ‘pitch’, another wicket is positioned. There are always two batsmen or women playing, each standing at either end of the pitch. A bowler bowls the ball to one of them who is trying to defend his wicket, and hit the ball to make ‘runs’ (the equivalent of points).

If the bowler hits the wicket with the ball, the batsman is ‘out’; his turn with the bat is over and he is replaced by another member of his team (who is ‘in’). If the batsman hits the ball and it is caught by a member of the opposing team, he is also out.

Meanwhile, the batsman or woman is trying to hit the ball. If s/he hits it right to the edge of the field, ‘the boundary’, s/he scores six runs if the ball does not hit the ground, and four runs if it does. The other way of scoring is for the two batsmen / women to run to each other’s wicket, while the other side is retrieving the ball. Each time they run to the other wicket, they score a run. If, however, the attacking team hits one of the wickets with the ball while the batsman is away from it, s/he is out.

All of the eleven members of the team get a chance, in turn, to bat. When ten of them are ‘out’, the whole team is out and the other team get their chance to bat (they are ‘in’).

In T20 games, each team is bowled twenty ‘overs’. An over consists of six valid deliveries of the ball by the bowler. In One Day Internationals, fifty overs are played. In Test matches, there is no such limitation on the number of overs. Rather, teams play until all the members are out (this is known as an ‘innings’). Each side play at least two innings over three, or five days. If the game is not completed within the allotted time (ie some players have not been bowled out), then it is considered drawn, regardless of who has scored the most runs.

 

(1) The Indian Premier League (IPL) is a professional Twenty20 cricket league in India contested during April and May of every year by eight teams representing Indian cities. The Board of Control of India founded the league in 2007. A team can acquire players through five ways: the annual auction, signing domestic players, signing uncapped players, trading players, and signing replacements. In the trading window, a player can only be traded with his consent, with the team paying the difference if any, between the old and new contract. If the new contract is worth more than the older one, the difference is shared between the player and the team selling the player. The annual auction is used as a window for signing new players who are not part of any existing team. This is usually the entry window for foreign players into the IPL.

(2) The world cricket governing body the International Cricket Council grades international teams as Affiliate, the lowest rank, Associate and Full Members of the ICC. Currently, ten teams have Full Membership which makes them eligible to play Test cricket. 39 teams are Associate members, six of whom also have One Day International status, which brings them into competition with Full members in major tournaments. These six teams, along with two others, can play in T20 International competitions. There are 56 teams with Affiliate status.

Affiliate members are countries where the ICC recognises that cricket is played according to the rules of cricket, the ICC regulations. An affiliate member must maintain a national governing body with particular administration requirements and follow these criteria

In order for an Affiliate member to be become an Associate member, the national governing body must demonstrate that it has met the criteria for Associate Membership and have met the following playing standards during the previous three years:

• Competed in all relevant Global or Regional ICC international cricket competition for the previous three years
• Be ranked the first, second of third Affiliate team in the region.

It must also have achieve done of the following:

• Two wins against any associate nation in 50-over matches
• Twice been “highly competitive” against one of the top 20 associate nations in 50-over matches
• Once beaten an Associate Member and once been competitive against one of the top 20 associates in 50-over matches
• Won three times against any Associate nation in 20-over matches
• Been “highly competitive” in three matches against one of the top 20 associate nations in 20-over matches
• Twice beaten an Associate Member and once been “highly competitive” against one of the top 20 associates in 20-over matches
• Once beaten an Associate Member and twice been “highly competitive” against one of the top 20 associates in 20-over matches
• Achieved three results in ICC global or regional events that include any mix of wins against Associate Members and/or highly competitive results against one of the top 20 Associate Members from 50 over and/or 20 over matches

Associate Members are countries where cricket is firmly established and organised but do not qualify for Full Membership.

All Associates are eligible to play in the ICC World Cricket League, a series of international one-day cricket tournaments administered by the ICC. There is also an ICC World T20 Qualifier that works as a qualification process for ICC World Twenty20 that occurs every two years. The qualified teams are awarded T20 International status.

An Associate member must maintain the following additional criteria along with other administration requirements of the national governing body:

• Have a minimum of 16 senior teams and 16 junior teams playing in a structured competition or competitions;
• Must have access to at least eight cricket grounds, four of which must have a permanent pitch.

Full Members may be countries or geographical areas (for example, the West Indies which covers more than 20 countries and territories from the Caribbean and the English team which represents both England and Wales). There are ten Full Members and all have the right to send one representative team to play official Test matches. All Full Member nations automatically qualify for One Day Internationals and Twenty20 Internationals (that Associate and Affiliate members have to qualify for).

(3) Marylebone Cricket Club (MCC), called by many the home of cricket, is a club in London, England and was founded in 1787. It is based at the famous Lord’s Cricket Ground. The MCC was formerly the governing body of cricket both in England and Wales and worldwide. In 1993, many of its global governing functions were transferred to the International Cricket Council and its English governance was passed to the Test and County Cricket Board at the same time. The MCC issued the Laws of Cricket in 1788, continues to reissue them (from time to time), and remains the copyright holder of those laws.

(4) The World Cricket League has five global divisions, where fifth is the lowest division. Teams that do not have Test status play tournaments in the different divisions with, in each division, two teams promoted, two relegated and two remaining for the next tournament, two years later. The six teams that manage to rise through the divisions to division one get One Day International status, while the top four qualify to play in the Cricket World Cup.

(5) The strike rate is the number of runs a batsman scores per 100 balls. For a bowler, it is the number of deliveries he makes to take his wickets over his career.

 

What are the tax obligations of citizens, residents and investors in Afghanistan? This question is much harder to answer today than it was 18 months ago. Then, the 2009 Income Tax Law, a remarkably well-written and detailed piece of legislation, had gone a long way in establishing a path towards clarity, stability and integrity for taxpayers and officials alike. Indeed, it was one area, where ‘rule of law’ in Afghanistan seemed to be starting to take hold. From late 2015, however, new tax laws were passed and they have created uncertainty and chaos. AAN guest author Chantal Grut* describes the confusion and how it has created more space for corruption, predation and tax evasion.

In early 2016, the always-bustling Kabul city tax offices saw waiting times grow from hours to days. Taxpayers had been informed of a new penalty for failing to file either a tax return or, in the words of the new 2015 Tax Administration Law, “any other document” with fines threatened regardless of whether any tax was due or not. As a result, tax offices were flooded with people filing piles of various empty forms in an attempt to prevent the mysterious new penalty from being directed at them. Tensions ran high as taxpayers were charged penalties for a still-undefined obligation that they never knew they had. The confusion and increased waiting times carried on long after an April 2016 memo from the Ministry of Finance’s Legal Services and Revenue Policy Directorate confirmed that late penalties should not be applied to at least some of the documents. The memo, which came in response to an influx of petitions, requested tax offices to “adjust their performance in accordance with the tax laws to prevent taxpayers from aimlessly wandering around.” (1)

While the Afghan tax system has always faced many challenges, the legislation at its heart – the 2009 Income Tax Law (2), now partially repealed – is still one of the best-written and most detailed pieces of legislation on the books in Afghanistan. This remains the case, to the extent that it is still in force. The clarity, stability and integrity of this legislative regime created a space in which tax officials and taxpayers, over six years, worked together to establish a truly Afghan tax jurisprudence. This was indeed a remarkable, rare example of organic and effective rule of law development.

However, over the last 18 months this legislative framework has been subject to significant and rapid change. These changes included the introduction of a Value Added Tax Law and the Tax Administration Law, which repealed large swaths of the Income Tax Law while leaving other parts still in force. Putting aside for the moment the substance of the changes, the manner in which they have been introduced – vaguely, apparently haphazardly and without sufficient preparation or adequate notice – runs the risk not only of damaging the long-term health of the tax system, but of crushing nascent rule of law in one small corner where it had been thriving. Further overhauls are expected in the near future, with the Ministry of Finance currently in the process of repealing and replacing the last remaining articles of the 2009 Income Tax Law.

Afghan tax law – the basics

Before delving into the details of the new laws and how they were brought about, it is useful to lay out the basic tax obligations of individuals and organisations.

The most common income tax obligations (3) for both for-profit and non-profit entities in Afghanistan are:

• A monthly obligation to withhold and pay taxes from: employees’ salaries (a progressive scale of 0-20%), landlords’ rental income (0-15%) and payments to contractors (2-7%);
• A quarterly obligation to file and pay business receipts tax – a flat tax, usually four per cent – on gross revenue (non-profit organisations are exempt from this obligation); (4)
• An annual obligation to file a detailed tax return and pay 20 per cent tax on annual net profits (non-profit organisations and certain tax-exempt programmes are exempt from the obligation to pay the 20 per cent tax, but not from the obligation to file returns).

While the tax rates themselves are not particularly high, (5) compliance is costly in terms of time and administrative effort. Taxpayers have a 10 to 15 day window at the end of each month to calculate and pay each monthly, quarterly and annual tax obligation and file the applicable forms, after which financial penalties may accrue. (6) The 10 to 15 calendar day window is particularly onerous for smaller taxpayers without administrative staff; and for international investors headquartered outside Afghanistan where offices and banking systems may operate on a different work-week. Filing requires multiple trips to the tax office and the bank each month, as waiting times are long and taxpayers are regularly asked to come back the following day because of power outages or problems with the computer system. The annual return obligation is not completed until a tax clearance certificate is issued by the tax office, a process which typically takes many months (despite the Tax Administration Law specifying a time limit of 21 days) and which does not progress without the regular actual physical appearance of the taxpayer or their representative at the tax office. (7) Despite all these problems, however, at least the procedures were clear.

It is vital for Afghanistan to increase its tax revenues. The current tax base is small, with the group of large taxpayers described as “tiny” and over-taxed (8), and the wider potential taxpayer population described as “largely noncompliant and unidentified” (9). Despite recent impressive increases in revenue collection, domestic revenue still covers only half of the government’s operating expenditures (10). The government is under great pressure to continue to increase revenue in order to decrease reliance on foreign aid, to meet donor and IMF targets, and to fund much-needed development and infrastructure projects. That needs to happen at the same time as the economy continues to suffer from a collapse in economic growth. The government itself has acknowledged the challenges posed by corruption and limited capacity. (11)

There was always a lot of work to be done to develop the procedures, personnel, and most importantly, systems to get more people paying tax. However, under the strong framework of the 2009 Income Tax Law, the trend had been upwards and steady. For every page of the 2009 Law, the Income Tax Manual – a detailed set of regulations and practical examples that makes such a technical law function in practice – provided an additional five to six pages of guidance. Multiple plainly-worded guidelines were published and distributed. The law, moreover, established a dispute resolution procedure and a public and private rulings system to resolve disputes between taxpayers and the tax office and answer unclear questions of law. Rulings were (and still are) issued in writing, and are widely regarded as reasonably fair, with decisions regularly being made in favour of both the government and taxpayers. The body of rulings issued under the 2009 Law – to the extent that they are still in force – help make taxes more reliable and evenly and fairly applied, by ironing out disagreements about how certain rules should be applied.

The body of rulings, practices and procedures was developing into a uniquely Afghan tax jurisprudence that had grown organically from the real-life use of the tax law by both tax officials and taxpayers, garnering buy-in from both, and tailored to the specific conditions of Afghanistan (see for example how this has developed in relation to withholding tax on foreign service providers discussed at footnote 17). In terms of post-2001 legislation and formal rule of law development, the evolution of the tax law is remarkable: this author is anything similar in any other sector.

The new tax laws  

The most significant recent changes in the tax law were the passing of the 2016 Value Added Tax Law and the 2015 Tax Administration Law. The latter left some parts of the 2009 Income Tax Law in force, while repealing much of it. While some of the other recent amendments to the tax laws have been discrete and fairly well-publicised, such as the introduction of a 10 per cent telecoms tariff and the increase of the standard business receipts tax rate (from two to four per cent), others have resulted in more wide-ranging and less transparent overhauls. These changes have not only disrupted a stable, tried and tested system, they were also implemented without consultation or warning and, in effect, retroactively, at times without so much as making a copy of the law available.

The Tax Administration Law for example, published in the official Gazette dated 18 November 2015, states that it will come into force after the date of publication. However, neither the Gazette nor a copy of the law were actually physically available until mid-December 2015 (12). Since most people are not in the habit of regularly checking the Gazette, many taxpayers were first notified of the law when they received a penalties bill for failure to comply with it, with penalties back-dated to 18 November 2015. A decree issued almost a year later, in October 2016, recognised that “companies were not aware” of the Tax Administration Law but, nonetheless, continued to allow for the penalty to be applied back to November 2015 for all but one category of form (the fourth quarter 1395/2016 business receipts tax submission that was due on 5 January 2017 (see here).

The first public information sessions on the Tax Administration Law which the author is aware of were not organised until late November 2016, more than 12 months after the law had come into effect, and even today, no public guidelines or published procedures such as exist for the 2009 Law have been made available.

In contrast, the Value Added Tax Law, dated 13 April 2016, stated that it did not come into effect until more than eight months after its publication, on 21 December 2016. This is an excellent model for legislation that helps mitigate the risk of a law being retrospectively applied because of publishing delays. It also provided taxpayers and citizens with time to become familiar with the new rules. Despite this, in practice however, there were still months of confusion over whether or not the law even existed. In May 2016, tax officials responding to queries about Value Added Tax stated that there would not be a new law or system for many years to come. In early July 2016, the official Gazette became available and included the Value Added Tax Law with the 13 April date. That meant that the law had actually been passed before the public was told there were no plans for any such law, and also three months before a copy of the law would be made available to them.

This confusion is made immeasurably worse by the fact that, in contrast to the 2009 Tax Law, the new tax laws have not been clearly drafted. They have also not been released with any of the supplementary rules and regulations that are necessary for a technical law to function.

To take just one example, Article 35(1) of the 2015 Tax Administration Law provides a daily late filing fee for failure to submit a tax return “or any other document,” words that did not appear in the 2009 version. When the 2015 Tax Administration Law repealed this section (and many other sections) in the 2009 Law, by default, it also repealed the underlying regulations and rulings issued under those sections, but did not replace them. In total, approximately 60 pages of guidance and detail in the Tax Manual were deleted, not including other rulings and guidelines. It was this provision that led to the queues of people filing reams of documents, many of no consequence or relevance to actual tax liability, in early 2016: who were they to know what “any other document” referred to?

Whether or not one agrees with the expansion of the Article 35(1) fee from a failure to file a return to a more general failure to file undefined paperwork, (13) the vagueness with which the regulation was drafted created a waste of government and private resources. It lost the government goodwill and created a sense of injustice among taxpayers who were not able to assess with any certainty what the law was asking of them. The change in the law, moreover, left low-level tax officials with an overbroad discretion to interpret the law. That created new space for corruption and predation, but also placed a heavy burden on those tax officials who were trying their best to do an already difficult job with limited resources. All of this could have been avoided by simply specifying what “documents” were being referred to, either in the text itself or in an accompanying regulation.

At the time of writing, a Tax Administration Manual that provides some guidance (including on the meaning of ‘documents’) has reportedly been drafted, but is not yet publicly available.

Regulations and guidelines were not the only items left unprepared when the laws were passed. Much of what the Tax Administration Law purported to establish, and the mechanisms which are required for it to function, have not actually been created. For instance, Article 55 describes new dispute resolution procedures for a Board that does not, at the time of writing, exist. New licences that must be held by tax accountants pursuant to Article 33 have not yet been issued, nor have the rules explaining the licensing procedures. Responsibilities assigned to the tax administration (Art 59), such as the requirement to issue a tax clearance certificate within 21 days of a taxpayer request, are not being implemented in practice and would be near impossible to implement without radical changes to the way that the tax clearance procedure currently works.

While financial penalties for late filing of documents are enforced in practice, a system to date-stamp documents when submitted, to prove that filing obligations have been complied with, is missing. In practice, the tax office may refuse to provide any proof of filing, or refuse to accept a filing, creating a situation where taxpayers are powerless to stop the daily accrual of financial penalties (14).

In another bizarre example, the Value Added Tax Law came into effect on 21 December 2016, without any corresponding Value Added Tax system being created and, apparently, without any intention to implement or enforce the law. It was, however, the law of Afghanistan (together with the numerous penalties for failure to comply with it (15)), at least until 29 January 2017, when yet another law was passed delaying the effective date by four more years. Once again and despite the 29 January 2017 date stated on the law, the text of the law is still not available online or in print at the time of writing. Only a soft copy was made available by the Ministry of Justice on request almost a month after it had been passed, on 20 February 2017.

This lack of legislative coherence is not uncommon in Afghanistan. However, it is in stark contrast to the 2009 Tax Law, and highlights one of the reasons why the 2009 Tax Law was (and to the extent it is still in force, is) such a workable law. (16) The forms, procedures and administrative bodies that were established by the 2009 Tax Law largely existed and functioned. The rights and responsibilities that the law set out were capable of being enforced, and were not just policy statements or aspirations. Passing laws that are treated as nothing more than paper and that may or not be implemented, possibly only at a later date, makes it close to impossible for anyone to truly know what their tax obligations are, or what their tax obligations might be interpreted to be (with penalties and interest) in the future.

Such laws also make it extremely difficult for taxpayers and tax officials to hold each other to account according to the law, something which, albeit imperfectly, and among a small group of participants, had previously been happening. It is difficult for tax officials to point to articles of the law and insist that taxpayers are legally required to part with a percentage of their profits, or for taxpayers to point to specific articles and insist on their due process, when large swathes of the law are not really in force, or have not been implemented yet, or are only aspirational. If law is no longer in the toolbox available to both officials and taxpayers, what is left is confusion in which predation and coercion on the one hand, and manipulation and evasion on the other, are likely to thrive.

AAN put in a request to the Ministry of Finance for an interview as we were keen to know why they felt the need to change the taxation law and why those changes had resulted in such muddle and confusion. However, the ministry was unable to provide us with an interviewee.

The future of paying taxes in Afghanistan

What are the tax obligations of citizens, residents and investors in Afghanistan? It is a question that is much harder to answer today than it was 18 months ago. It is inexplicable that so much uncertainty and opaqueness could have been introduced to this sector, at exactly the time that the government is trying to expand the tax base in a shrinking economy, attract investment, and tackle corruption, and hoping to develop and maintain a strong revenue stream.

Indications are that the situation may be about to become even worse: the Ministry of Finance is in the process of repealing and replacing the remaining articles of the 2009 Income Tax Law, and is soon to send the new draft legislation to the cabinet. Early drafts indicated that certain provisions may exacerbate areas of uncertainty in Afghanistan’s tax code even further (17). Meanwhile, a recent draft of another proposed law (18), to license professionals entitled to work in the tax sector, gives the Ministry of Finance (as opposed to an independent body) the authority to license the professionals who are charged with holding it to account. If passed in its current form, Afghan attorneys – independently licensed by the Afghanistan Independent Bar Association – would likely be excluded from appearing on behalf of taxpayers at the Ministry of Finance, including on questions of law.

At times, legislative change is, of course, needed. If a law needs to be changed to pursue new policy goals, then lawmakers need to consider which specific aspects need amendment without overhauling precious functional systems. If laws are to be partially repealed and replaced, they should be republished in one document that shows clearly what is and is not still in force. Laws should be drafted with clarity and precision, and should preferably not be passed until the regulations, policies and administrative structures needed to make them work (and an intention to actually implement them) have been prepared. At a minimum, citizens should be provided with adequate notice of changes and access to the laws before being penalised for failure to comply with them.

The 2009 Tax Law and its accompanying regulations were, and still are, a strong example of a law that was clearly drafted, accessible, and enforceable. When considering rule of law development, taxation may not be the first thing that springs to mind, but in Afghanistan, it was the primary area where formal rule of law was developing. Moreover, it was developing not through a top-down initiative, or a donor-funded rule of law project, but organically, through day-to-day interactions between tax officials and taxpayers who chose to conduct their affairs and resolve their disputes by opening up a law book together, seeing what it says, and conducting themselves accordingly. It is a real pity that such hard won achievements have been undermined.

 

* Chantal Grut is a legal consultant based in Kabul. She holds degrees from Columbia Law School and Victoria University of Wellington and is a licensed attorney in New York State and a New Zealand Barrister & Solicitor.

 

 

 

(1) Letter to Mustofiat, RSI-94618, 1395/1/28.

(2) The Income Tax Law 2009 was preceded by and substantially based on the Income Tax Law 2005.

(3) Matters relating to customs and import duties are dealt with under a separate legislative regime. Additional tax obligations that are not as common include the obligation to withhold from certain forms of passive income (Income Tax Law 2009, Article 46).

(4) Alternative business receipts tax rates range from two to ten per cent for certain specified industries. See: Income Tax Law 2009, Article 66 (as amended by Presidential Decrees nos. 58 and 149).

(5) Afghanistan’s corporate income tax rate is 20%, and the progressive personal income tax rate also peaks at 20%. According to international rates for 2016 as published by KPMG, this compares to a global average corporate tax rate of 23.62% (and an Asia average of 21.92%), and a global average personal tax rate of 33.17% (and an Asia average of 28.88%). See: KPMG Individual income tax rates table, available here; and KPMG Corporate tax rates table, available here.

Other Afghan tax obligations including on gross revenues and expenses, as opposed to net profits, can however be quite onerous particularly for low-margin businesses.

(6) These financial penalties include:

• A flat 10% penalty for late payment of withholding taxes: Tax Administration Law, Article 36(1);
• A 0.1% per day penalty for late payment of any tax liability: Tax Administration Law, Article 34;
• A per day penalty of 30 AFN per day (for natural persons) or 100 AFN per day (for legal persons) for failure to file “documents” including for example a withholding tax or business receipts tax form: Tax Administration Law, Article 35(1).

(7) Delays in the issuance of tax clearances on the part of the tax office can have serious repercussions for businesses, as business license renewal is contingent on obtaining a tax clearance certificate for the most recently closed financial year. This is particularly onerous for businesses whose licenses expire close to the end of a tax year. For example, annual returns for the year ending 20 December 2016 are not due to be submitted until 20 March 2017, and once submitted typically take multiple months before a tax clearance is issued. As such if a business license expired in January 2017, then it is almost certain to be subject to a long period of expiration before it will be renewed, even if the business in question pursues its tax filings and clearance with the most diligent efforts. The lack of a valid business license can also lead to an inability to renew work visas, making it incredibly difficult for some organisations to continue to operate on a legal basis.

The Central Business Registry has alleviated some of this burden by issuing licenses which are valid for three years (as opposed to the former one year license), in effect providing two years of relief from the time crunch.

(8) See for example: Letter of Intent from Government of Afghanistan to the International Monetary Fund, Attachment I, Memorandum of Economic and Financial Policies for 2016-2019, paras 21 (specifically in relation to a lack of capacity to administer a Value-Added Tax), 36-37. Available here.

(9) William A. Byrd and M. Khalid Payenda, “Afghanistan’s Revenue Turnaround in 2015”, United States Institute of Peace, Brief 201, February 2016. Available here.

See also: Masuda Sultan, Saving Private Enterprise in Afghanistan, New York Times, 2 January 2017. Available here.

(10) International Monetary Fund, IMF Country Report No. 16/252, “The Islamic Republic of Afghanistan: Request for a three-year arrangement under the extended credit facility – press release; staff report; and statement by the Executive Director for the Islamic Republic of Afghanistan”, July 2016, p 11. Available here.

(11) See page 11, footnote 13 of the just mentioned IMF country report.

(12) This is a common problem. The Tax Administration Law (Art 65(1)), like many laws in many jurisdictions, states that it will come into effect after the date it is published in the official Gazette. Such provisions are intended to ensure that laws cannot come into force before the public has access to them. However, due to printing and translation delays, the ‘publication date’ printed on Afghan Gazettes is usually not the date that it is actually physically published or available to the public, in hard or soft copy. It typically becomes available at a date weeks or even months later, with the effect that all laws stated to come into force on Gazette publication are actually retroactive.

(13) There is certainly scope to argue that additional taxes for late filing/payment have become wildly disproportionate under the Tax Administration Law. For example, a tax liability of 1 AFN per month in salary withholding alone, a total annual bill of 12 AFN, accumulates to 202,300 AFN in late filing penalties per year for legal persons, or 1.7 million per cent of the tax liability itself. This is in addition to two other proportionate penalties of a flat 10% (1 AFN) and 0.1% per day (2 AFN annualized). The alternative to accruing over 202,000 AFN in penalties on a 12 AFN tax bill is to hire an employee or service provider to complete the forms and file them in person with the bank and the tax office every month, a cost that is also disproportionate to 12 AFN.

This penalty applies equally to non-profit organisations and businesses that may be operating at a loss.

(14) For example, if a tax liability is disputed or a taxpayer does not have the means to pay a tax bill, they will not be able to stop the filing penalty from accruing, because the tax office will typically not accept filing of the document unless the underlying tax liability is paid. Other practical problems may result in the tax office refusing to accept filing of a document, including confusion about which tax office the taxpayer is supposed to register with, and system-outages at the tax office.

(15) Tax Administration Law 2015, Article 43.

(16) In many respects, the 2009 Income Tax Law is the outlier. For example, at the time of writing and as far as the author is aware, the dispute resolution body purportedly established under Article 37 of the NGO Law does not exist. The Labour Law 2008 makes multiple references to a “pension” (see Articles 26, 134, 141, 143, 144), including a “right” to a pension and payment from an employer “fund”, without ever specifying what the pension obligation, if any, actually is, or who it would apply to. While these any many other articles of the Labour Law allude to often laudable policy goals, the result is a law that cannot be objectively complied with or enforced, because the rights and obligations it purports to establish are so often vague, with details left to be fleshed out in regulations that may or may not have been promulgated.

(17) Early drafts of the new proposed tax law indicated that officials were considering trying to radically alter the tax landscape by limiting the ability of non-profits to generate tax-exempt charitable income and by placing high tariffs on a range of international costs. That, of course, may have changed in subsequent drafts, but it is worth noting that these changes would have exacerbated, rather than clarified, existing uncertainties in the 2009 Income Tax Law, and undone the hard work that has been done to address those uncertainties through jurisprudence.

One area of confusion under the 2009 Income Tax Law relates to the obligation to withhold seven per cent taxes from contractors and service providers who do not have an Afghan business license, and whether or to what extent it applies to foreign vendors. Because this is a tax that might be levied on certain costs, uncertainty about what costs it applies to is high-risk – if a taxpayer is not aware that the tax will apply at the time that it makes the purchase from the vendor, then the taxpayer is unable to properly budget (if the cost is seven per cent higher the taxpayer may have declined to make the purchase). If the tax is later found to apply, the taxpayer will be out of pocket not only for the seven per cent, but for the significant penalties for failure to withhold discussed above.

This is one of the areas in which the rulings committee has provided significant guidance, finding that, with the exception of certain specific industries such as insurance (see: Decision #12.2, 1393/4/9), there is no applicable tax where the service provider is outside of Afghanistan, and the services are provided outside of Afghanistan and made available to an Afghan taxpayer (see: Decision #15, 1392/5/9). In practice, the risk is also mitigated by Income Tax Manual Article 72.4 which states that the withholding obligation only applies to vendors who are paid more than 500,000 AFN in the course of the financial year – meaning that taxpayers can more easily identify costs more or less likely to be subjected to the withholding obligation.

In contrast, the new draft Income Tax Law proposes a withholding tax of 20 per cent on foreign “technical services fees”, and excises the 500,000 AFN per year exemption threshold. “Technical services fees” is defined as “any type of payments for any kind of administrative, technical or consultancy services” which does not provide much more clarity. It could, conceivably, apply to almost every cost that a business or non-profit incurs to any service provider who is not registered in Afghanistan including software, email, web-hosting and cloud service providers; administrative service costs incurred by Afghan taxpayers while travelling internationally; international banking fees; advertising in international forums; and international dispute resolution costs to name just a few.

Because a service provider who is not actually otherwise subject to Afghan jurisdiction is not likely to agree to a 20 per cent cut on their invoice, in reality this is a cost that Afghan taxpayers would have to bear to gain access to international markets, services, and expertise.

Further because the tax could apply to almost any cost, because it is so high, and because the penalty regime is so punitive, taxpayers will have no good choices if the provision as drafted becomes law. They can either voluntarily gross-up all their international service costs and pay the tax to prevent the risk of penalties accruing (with the result that they pay 25 per cent more than their competitors in the informal and international markets), they can decline to purchase any international services where possible, or they can run the potentially devastating risk of the tax being found later to apply to their expenses, with penalties.

(18) See also: Tax Administration Law 2015, Article 33.

 

 

 

 

After a long, cold, hard winter, Nawruz is finally here. Spring itself seems a little late this year. By 1 Hamal 1395, the trees were already in full bloom in Kabul. Not this year. Still, we are sure that balmier days will soon be here and, as the gardens awaken, the fragrance of flowers will fill the air. Here at AAN, we would like to wish all our readers and friends a blessed year to come. We’ve found some favourite Nawruz poetry and photos to celebrate.

Children playing football beneath Darulaman Palace, Kabul, with Arghawan (Judas trees, Cercis siliquastrum) in blossom (Photo: Thomas Ruttig)

نداند باغ ویران جز زبان باد نوروزی
به قول او کند ایدون همی آباد ویران‌ها The ruined garden knows nothing but the language of the Nawruz breeze,
At the behest of that breeze, it will now mend all the ruins

– Naser Khosraw

Gul-e khatmi (hollyhocks, Alcea rosea) from the AAN garden (Photo: Thomas Ruttig)

نوروز رخت دیدم خوش اشک بباریدم
نوروز و چنین باران باریده مبارک باد

I shed tears of happiness upon seeing the Nawruz of your face,
May Nawruz and such a rain of happy tears be blessed!

– Rumi بهار
آنجا نگه کن
با همین آفاق تنگ خانه ی تو
باز هم کوهها پیداست
……..
بهار اینجاست
در دلهای ما
آوازهای ما Look there Spring
The mountains can be seen
Even from the narrow outlook of your house
…….
Spring is here
In our hearts
In our songs -Mehdi Akhavan Sales

راغی پسرلی بیا به وطـــــن ګل و ګلــــــزار شــــي
بیا به په وطن کې د بلبلـــو چــــغـــــهــــار شــــــــي
Spring has arrived and the country will again become colourful with flowers
The nightingales will being to sing their songs all across the country

ډکه به لمنه د صحـــرا لـــــــه زیــــــړو ګلـــــو وي
بیا به شنه شالونه غرو رغو بانـــدې اوار شـــــــي
The yellow flowers will fill the desert margins
Greenery will cast its shawl over all the mountains and hills

کډې به باریږي د اوښانو غــــــرغـــــــړې بــــه وي
رنګ په رنګ ټیکري به بیا ښکاره په دغه لار شي
The Kuchis will begin to move and their camels will make their sounds
This way will again become beautiful with the colors of the beautiful shawls of girls

وايي به شپانه د شوق سندرې بیا د غرو په ســــر
وچ سپیره ډاګونه به رنګین او لاله زار شــــــــي
The shepherds will be singing lovely songs from the hilltops
The dried and dusty deserts will again be colorful and green.
– Gul Pacha Ulfat

The Taleban have spent many years ‘localising’ their fight in the north, recruiting local fighters and commanders and keying in to Afghan Uzbek madrassa networks in Pakistan and the north. That drive has paid off; in the Uzbek-majority provinces of Faryab and Sar-e Pul, the Taleban have gained significant ground against the government. In this second dispatch on non-Pashtun Taleban in the north, AAN’s Obaid Ali looks in detail at the movement’s recruitment and force strength and at the threats it poses to both the Afghan government and the pre-eminent Uzbek power-holder, First Vice President General Abdul Dostum (with input from Thomas Ruttig).

A previous dispatch looked at the Taleban in the Tajik-dominated province of in Badakhshan.

Before looking in detail at how the insurgency has played out in the Uzbek majority provinces of Faryab and Sar-e Pul, it is worth looking at how Uzbeks fared when the Taleban were in power, as the comparisons are useful.

Uzbeks before and during the Taleban’s Islamic Emirate

The Taleban movement was founded by Pashtuns in Kandahar in the summer of 1994 as a local force; its initial recruits came from the south, from ‘Greater Kandahar’, the provinces of Kandahar, Uruzgan and Helmand. Many of the early Taleban had studied in Afghan madrasas, and most of the movement’s leaders had fought against the Soviets as members of various mujahedin factions. Often, they were part of specific ‘taleban’ fronts (taleban is the Dari/Pashto plural of taleb which means a student of a religious school or madrasa) (see this AAN paper for more detail: p 10-1).

However, as early as 1995, Tajik and Uzbek religious scholars and students from northern Afghanistan who were based in Pakistan as refugees reached out to the nascent movement. These scholars and students were members of a religious organisation called Jamiat-e Tulaba-ye Afghanistan (Religious Students Association). (1)

Members of Jamiat-e Tulaba (who wished not to be named) explained to AAN that many of the association’s members individually approached Taleban leader Mullah Muhammad Omar to express their support. They included Mawlawi Abdul Raqib, an Uzbek from Takhar province who was an influential figure among the Uzbek members of the association and had served as its sadr (head), in 1994. He pledged allegiance to the Taleban leader, Mullah Muhammad Omar in 1995 and this encouraged hundreds of Uzbek students from the association and gradually more Uzbek clerics, not only from the association, to join the movement. Mullah Omar immediately appointed Raqib the head of the Taleban’s front in Maidan Wardak province (Raqib would later become a minister in the Taleban regime). This led to the first major non-Pashtun element joining the Taleban movement. (There were also Tajiks joining the Taleban movement in the mid-1990s, particularly from Badakhshan – read our previous analysis here).

Even so, opportunities for Uzbeks – as for other non-Pashtuns, and non-Kandahari Pashtuns – to hold high-ranking positions in the Taleban government remained limited. This continued to be the case for the whole of the Taleban’s Emirate (1996-2001). Only a handful of Uzbek clerics served in high positions. They included:

• The already mentioned Mawlawi Abdul Raqib, with the additional takhallus of Takhari, as he originates from Kalafgan district in Takhar province. Following his position as commander of the Taleban front in MaidanWardak, he was appointed head of the Taleban’s Refugee and Repatriation Department in Kandahar in 1995, a quasi-ministerial position. After the movement captured Kabul in 1996, he was appointed Minister for Refugees and Repatriation, a position he held until the collapse of the Taleban regime in 2001. Mawlawi Abdul Raqib was assassinated in 2014 in Peshawar by unidentified gunmen (read media report here).
• Abdul Salaam Hanafi, an Uzbek from Faryab, served as a deputy education minister during the Taleban’s Emirate. He is now a member of the Taleban’s political office in Qatar.
• Mawlawi Abdul Rahman, an Uzbek from Faryab, served as the head of the Chamber and Commerce in Herat province and is now the shadow governor for Jowzjan.
• Hafez Nurullah, a Turkmen from Jowzjan province, who served as head of the Hairatan port of Mazar-e Sharif province and is now a member of the military commission of the Taleban, which acts as the movement’s quasi-defence ministry, is an example of the presence of representatives of smaller Turkic groups in the Taleban movement.

The Uzbek community also contributed thousands of foot soldiers during the Taleban’s Emirate who fought alongside the movement’s Pashtun Taleban in the north, but were organisationally separate from them, fighting in distinct frontlines. In many cases, Uzbeks wanted to fight in their own provinces under an Uzbek commander. However, even in Uzbek-dominated provinces like Faryab and Sar-e Pul, the governors and military commanders were Pashtuns and Uzbek fighters fought under Pashtun commanders.

A new generation of Uzbek Taleban

After 2001 and as they sought to fight an insurgency, the Taleban changed tack. They now understood that a localisation of warfare – to have local groups doing the fighting, local commanders leading it and local recruits in their parallel government structure – would better anchor the movement in non-Pashtun areas where they had been relatively weak thus far. (The same has been true in Pashtun, ‘non-Kandahari’ areas where locals have also been recruited to fight and lead the insurgency.)

In the north of the country, the Taleban started expanding from 2008 onwards, setting up provincial structures (this will be discussed in more detail in a future AAN dispatch). These developments in the north constituted a new phase in the movement’s re-launch of its ‘jihad’ against the government in different parts of the country, following its rebuilding and consolidation of structures in the south. Offering greater room to non-Pashtuns in their ranks also aimed at portraying the Taleban to the population as a multi-ethnic movement rather than solely a Pashtun one (as it is often portrayed, both in Afghanistan and abroad).

This shift in policy offered space for a new generation of non-Pashtuns to serve as Taleban local officials in northern Afghanistan. The drive for their recruitment used the influence and local connections of former pro-Taleban Uzbek figures. It started from and is still heavily based among Uzbek students studying in Pakistani madrasas. According to students who have completed religious schools in Pakistan, thousands of students from rural areas of Faryab and Sar-e Pul provinces attend madrasas in Pakistan with the aim of becoming religious scholars.

However, there are also a large number of unregistered mosques and madrasas in the northern provinces of Afghanistan that constitute a potential local recruiting ground for the Taleban. This seems to reflect a countrywide development, over the last years, where the number of madrasas has multiplied, as a result of local madrasas establishing multiple branches in many areas. Their imams are mainly appointed by local communities, without any role being taken by governmental authorities. As the imams receive monthly salaries and often free food from the communities, these privileges encourage families to send children to religious schools to become imams themselves. However, most of the families who send their children to such madrasas are not fully aware of the fact that they may not only become religious scholars, but also military recruits. This approach to recruitment by the Taleban has already yielded effective results on the battlefield as will be seen in cases studies of the two provinces.

The case of Faryab

One of the provinces on which the Taleban have focused their local recruitment drive is Faryab where Uzbeks constitute more than half of the population, according to United Nations figures. (2) Faryab is strategically important as it connects the western parts of the country with the north – it was through Faryab that the Taleban moved to capture Mazar-e Sharif in 1997 and 1998 and from where anti-Taleban forces came to re-capture the city in 2001. The province consists of 14 districts; additionally, the district of Ghormach, in neighbouring Badghis, to the west, is sometimes also counted as part of Faryab. (3)

It is hard to estimate the exact proportion of government or Taleban controlled parts of the province. Faryab, however, is generally considered one of the most contested provinces in the north-west. Currently, six districts are fiercely fought over: Almar, Kohistan, Khwaja Sabzposh, Shirin Tagab, Dawlatabad and Ghormach. There, according to several local sources, the government presence is limited to the district centres and a few kilometres around them. Kohistan was close to falling to the Taleban in summer 2016 and according to local journalists in three others – Qaisar, Gurziwan and Pashtun Kot – the government and the insurgents each control around half. The remaining parts of the province – the provincial capital, Maimana, Andkhoi (the province’s second largest city), Khanchar Bagh, Belcheragh, Qurghan and Qaramqul districts – are relatively calm and Taleban activity is limited to far-flung villages.

The spokesman for Faryab’s provincial police chief, Karim Yuresh, told AAN that Taleban fighters in Faryab are all locals, whether Uzbek, Tajik or Pashtun. Getting an estimate of their number, or of those newly recruited through the Uzbek madrasa networks, is difficult, however. According to Yuresh, the Taleban have recruited new fighters from areas under their control, increasing overall numbers. He thought there were more than 3,000 Taleban fighters are active in Faryab. Such figures, however, are often exaggerated, and local officials also often do not have a clear picture of the ethnic composition of insurgent groups.

It has been notable, however, that young commanders from Faryab’s Uzbek community have increasingly played a leading role in the local insurgency. One notable example is Qari Salahuddin Ayubi, from Almar district. He served as the province’s shadow governor and head of the provincial military commission from 2013 to September 2015 when he was captured by the Afghan National Directorate of Security (NDS), reportedly in Herat province on his way to Kandahar (read the NDS statement here). Ayubi had mobilised hundreds of fighters against government forces in Faryab and established a special training camp for them in Dawlatabad district, known as ‘Ayubi’s Camp’. There, according to sources close to the Taleban, dozens of military experts teach local fighters how to fire light weapons and rocket propelled grenade launchers and give them physical training. In December 2014, the Taleban released the first of a series of videos featuring the camp which showed fighters training, with some fighters firing rifles from moving vehicles. One of the trainers interviewed spoke in Uzbeki about the military training on offer. Other videos featured Salahuddin delivering speeches, again in Uzbeki, about the value of ‘jihad’ and encouraging fighters, not only in Faryab, but all over the country (the video is no longer available in Taleban’s official website). (Local journalists and officials told AAN the videos were genuine.)

Ayubi’s arrest, however, has not impeded the insurgency in Faryab. The Taleban quickly introduced a replacement, Mufti Muzafar, another young Uzbek, this time from neighbouring Sar-e Pul province. Under his lead, in October 2015, the Taleban assaulted Maimana, attempting to overrun Faryab’s provincial centre. The clash lasted for several hours until finally the Afghan National Security Forces (ANSF) managed to push the insurgents back (read report here). Moreover, videos continue to be released featuring the training camp, which despite Muzafar’s leadership, is still referred to as ‘Ayubi’s Camp’.

Since 2008, from well before Ayubi and Muzafar, the Taleban’s shadow provincial governor for Faryab has for the most part been an Uzbek. In most districts of the province with Uzbek majority communities, Uzbeks, along with a few Tajiks, serve as Taleban officials. Only in the three remaining districts where Pashtuns form a sizeable part of the local population – Qaisar, Dawlatabad and Shirin Tagab – do Pashtuns serve in mid-level posts. There, also the shadow district governors are local Pashtuns: Mawlawi Allauddin in Qaisar, Mullah Raz Muhammad Khanjari in Dawlatabad and Mullah Mir Agha Waseq in Shirin Tagab.

The case of Sar-e Pul

In Sar-e Pul, the Taleban have also set up an active administration and military structure which consists mainly of non-Pashtun locals. Sar-e Pul, to the east of Faryab and with seven districts (Balkhab, Gosfandi, Sayad, Kohistanat, Sancharak, Suzma Qala and Sar-e Pul centre), has a Uzbek majority population (31 per cent), but there are significant groups of Tajik (25 per cent), Hazara (22 per cent) and Aimaq (11 per cent), as well as pockets of Arabs and Pashtuns, according to United Nation figures.

Since 2012, the province has developed into a Taleban stronghold. (During the Emirate, Balkhab had been a centre of resistance.) Currently, they control more than half of the province. Kohistanat district, for instance, came entirely under Taleban control in July 2015, while Suzma Qala and Sayad are heavily contested, with government control limited to the district centre and nearby villages. In Sancharak, a contested district, government controls around 50 per cent of the district’s territory, with the remaining parts under the Taleban. The movement has also maintained a presence in places near the provincial centre. For instance, Sheramah, an area ten kilometres to the west of the provincial governor’s office, just beyond the city borders, is entirely under Taleban control (read our previous analysis here). In the two remaining districts, Gosfandi and Balkhab, government control is better, but still only limited.

Posts in the Taleban’s shadow administration and their military commission in Sar-e Pul are held by non-Pashtun commanders. The shadow provincial governor, Attaullah Omari, an Uzbek originally from Faryab, leads the movement in the province. His deputy, Qari Qudrat, is a Tajik who received a religious education in the Menhaj ul-Saraj madrasa in the province. The military commission is led by Yaqub, an Aimaq originally from Sar-e Pul provincial centre, while the judicial commission is run by Sebghatullah Rohani, an Arab from Sheramah village near the provincial centre. The Taleban have also established a special unit tasked to carryout terror attacks and assassinations of government officials. This unit is led by Ahmadi, an Uzbek from Laghmana village near the provincial centre. The multi-ethnic make-up of key personnel reflects the character of the province. According to Asadullah Khurram, a provincial council member, it is also not only the Uzbek community that contributes fighters. He told AAN that Tajiks, Aimaq and ethnic Arabs are also significantly involved in the insurgency. For instance, Kohistanat with sizeable Aimaq and Tajik populations, the insurgency is led by Aimaqs and Tajiks, while in Uzbek-dominated Suzma Qalah it is led by Uzbeks.

As with Faryab, the Taleban also release regular propaganda videos about their activities in the province. One, distributed in 2015, showed a large gathering of hundreds of Taleban fighters driving vehicles seized from the security forces and gathering to announce their support for the then new (and since deceased) Taleban leader,Mullah Akhtar Muhammad Mansur. Taleban shadow governor Attaullah Omeri delivered a speech in the two main local languages, Dari and Uzbek. In another video released in June 2016, the Taleban in Sar-e Pul pledged allegiance to the next new leader Hibatullah Akhundzada(see video here). Local journalists, elders and provincial council members confirmed to AAN that the fighters were local and the footage genuine.

General Dostum and his counteroffensives

One major effect of the Taleban’s successful recruitment of Uzbeks in northern Afghanistan is the serious challenge it has created to the military and political dominance of Afghanistan’s leading Uzbek figure, General Abdul Rashid Dostum, leader of the Jumbesh party. Dostum has so far projected himself successfully as the only leader of the country’s Uzbek community. He has been able, in two presidential elections (2009 and 2014), to ‘deliver’ the Uzbek vote bank to the (Pashtun) winners. (In the 2004 election, he asserted this control by running himself, winning ten per cent of the countrywide vote). In 2014, this tactic gained him the highest position ever held by an Uzbek in the Afghan state, becoming Ashraf Ghani’s first vice president. The above case studies of Faryab and Sar-e Pul show that the ‘Uzbekisation’ of the local Taleban insurgency now mounts the first military challenge to him in his ‘heartland’ for many years (he lost his previous power base, Mazar-e Sharif and the wider Balkh province, to Ustad Atta Muhammad Nur in a power struggle in 2004).

This nature of the Taleban threat in the north has led Dostum to put considerable efforts into combating it and trying to push back against the Taleban’s growing influence in Uzbek communities. He has personally led a number of counteroffensives against the Taleban, starting in June 2015. They involved both ANSF and locally recruited forces (referred to as militias, ‘uprising groups’ or, in UNAMA reporting on civilian casualties, ‘pro-government armed groups’). There were three such operations in 2015 and 2016 in Faryab alone. In an interview in July 2015 (see here), Dostum warned the Taleban that unless they laid down their weapons and joined the peace process they would face consequences. In August 2015, he attended a gathering in Almar district of Faryab promising to clear the province of Taleban’s existence “within two days” and to make it secure again (see media report here).

There were some initial successes, but no significant long-term results. After spending several weeks in Faryab in 2015, Dostum’s forces managed to push the militants out of most parts of Qaisar, Ghormach, Dawlatabad and Shirin Tagab districts. Afterwards, he continued to Sar-e Pul to coordinate similar clearance operations there. The ANSF in Faryab, however, without establishing strong military bases to protect the areas cleared, handed over security to local forces, including Afghan National Police, Afghan Local Police and anti-Taleban ‘uprising groups’, and the Taleban were able to retake control of most these vulnerable areas.

In June 2016, a second round of counteroffensive under Dostum’s personal command against insurgents in Dawlatabad, ShirinTagab and Khwaja Sabzposh districts started. Again ANSF and militia forces participated, and again most parts of these districts were cleaned from Taleban presence. When General Dostum returned to Kabul, the counteroffensive remained incomplete.

In October 2016, he donned his military uniform for the third time to coordinate clearance operations in Faryab, particularly with an eye on Ghormach, where the district centre was controlled by insurgents and an Afghan National Army base besieged. After nine consecutive days of fighting and stiff resistance by the Taleban, the Ghormach district centre was cleared and General Dostum returned to his top stronghold in Jowzjan province, Sheberghan.

Dostum’s use of militias in his counter-offensives has raised serious questions, with accusations that they have carried out abuses against the civilian population, particularly in Pashtun-inhabited areas (for instance see this Human Rights Watch report and media reporting here). UNAMA, in its reporting on civilian casualties, is concerned about the use of ‘pro-government armed groups’ to fight the Taleban nationally, but has also drawn specific attention to their conduct in Faryab and the north. There, it says, they have carried out “deliberate killings, assaults, extortion, intimidation and property theft.” (see AAN report here) The militias, UNAMA says, have no basis in Afghan law and “lack the training provided to Afghan national security forces and the discipline and accountability imposed through a formal command structure.”

Relying on militias to boost force strength is clearly problematic. General Dostum has also pointed to weaknesses in the ANSF and here, he blames the national leadership. After his third ‘tour’ in the north, in late October 2016, he lambasted (see reporting here and here) both President Ashraf Ghani and Chief Executive Abdullah Abdullah, accusing them of ethnic bias in recruitment, of appointing incompetent leaders based on political decisions. He also pointed to gross corruption in the Ministry of Interior, saying posts in the police were bought and sold. All of this, he said, was undermining the fighting ability and morale of the troops.

Despite Dostum’s efforts – and partial achievements ­– Faryab and Sar-e Pul provinces have remained tense. In the particularly contested district of Ghormach in Faryab, the ANSF is only in control of parts of the district centre, an area of about two kilometres radius round the district governor’s compound, while the remaining territory is ruled by the insurgents. In neighbouring Almar district, the Taleban conducted a large scale offensive against the ANSF, attempting to overrun the district centre, in January 2017. The clash continued for a few days and hundreds of families fled to Maimana city. Eventually, the ANSF, with support from the Afghan air-force, managed to stop the Taleban from succeeding (read report here).

A challenge for Jombesh’s dominance among the Uzbeks?

The resilience of the Taleban in the Uzbek-dominated provinces of Faryab and Sar-e Pul demonstrates that their recruitment drive among the local majority ethnic groups was successful. They have established a base there that ANSF and Jombesh forces were unable to wipe out. These findings also confirm earlier AAN research pointing to local non-Pashtun ulama as the entry points for recruitment and mobilisation in northern Afghanistan (see this 2010 AAN report).

Much remains to be researched on how and why, exactly, the local balance of power has changed. But it can be assumed that one key factor is that, for the first time, conservative religious forces and particularly the clergy in the rural areas of both provinces have, in the now ‘multi-ethnic’ Taleban, a military and political force they are ready to identify and link up with. In the Taleban, they find a movement that can stand against what had previously been the unchallenged domination of Dostum and his Jombesh party among Uzbeks.

Dostum, however, has shown he can still get the votes out among Uzbeks while Jombesh, a somewhat (in the Afghan context) secular, urban-based party, with a foothold in the central government, has also shown itself able to organise its electorate effectively. The appeal of the Taleban to many young, madrassa-educated Uzbeks has grown and may be a mounting threat to both the government and to General Dostum.

 

Edited by Thomas Ruttig, Kate Clark and Borhan Osman.

 

 

(1) Jamiat-e Tulaba-ye Afghanistan (the Afghanistan Religious Students Association) was initiated by religious scholars and religious students from northern Afghanistan in 1987 during the Soviet occupation of Afghanistan. Its main branch first operated in Peshawar, but the association later expanded to madrasas in Lahore, Quetta and Karachi. According to its members, the association was mostly funded through charity and donations collected in the northern Afghan diaspora Pakistan. It had no links with any particular Jihadi tanzim; however, often its members individually took part in the fighting against the Soviets. After Mawlawi Raqib declared allegiance to Mullah Omar in 1995, many prominent members of the association such as Sayed Ghiasuddin (who once served as head of the association), a Tajik minister of Hajj during Taleban’s Emirate, and Mawlawi Zia Rahman, a Tajik who served as governor for Logar province during the Taleban’s regime and is now a member of Qatar office, followed his example. The association is no longer active in Pakistan, but many other former influential figures served, and continue to do so, as religious teachers in Afghanistan.

(2) According to UNAMA provincial reporting in 2007, the ethnic composition is as follows: Uzbek (51 per cent) followed by Tajik/Aimaq (22.3 per cent) and Pashtun (8.6 per cent).

(3) The case of Ghormach district and the issue of which province it belongs to is discussed in this AAN dispatch about the neighbouring province of Badghis. Faryab’s 14 districts are: Qaisar, Almar, Pashtun Kot, Khawja Sabzposh, Shrin Tagab, Dawlatabad, Andkhoi, Khan Char Bagh, Qaramqul, Qurghan, Belcheragh, Gurziwan, Kohistan, and Maimana.

 

 

 

 

For years, the Afghan government and donors have cited the growing number of children going to school in Afghanistan as an important post-Taleban success, despite closer scrutiny showing that numbers may have been inflated. The issue came to a head when the newly appointed education minister in the National Unity Government, Asadullah Hanif Balkhi, said that, instead of 11.5 million children being in school, as his predecessor had claimed, there were, in reality, only a little over six million. Education officials scrambled to clarify, defend and adjust the numbers. AAN’s Ali Yawar Adili has been investigating the figures and claims and trying to find out what the actual numbers might be. In the process, he has heard allegations not just of exaggeration, but manipulation, malpractice and mismanagement in the ministry (with input from Jelena Bjelica, Martine van Bijlert and Thomas Ruttig).

The re-discovery of ghost schools, and some inflated figures

Education Minister Asadullah Hanif Balkhi caused a public furore on 18 December 2016 when, in an interview with Tolo TV, he said that across the country only a little over six million pupils were actually in school. His count contradicted the ones provided by his predecessor under former president Hamed Karzai, Faruq Wardak, who had reported that up to 11.5 million pupils – almost double Balkhi’s number – were attending school. Such high numbers of school attendance had not only served the Afghan government as a marker of post-Taleban success, but also donor governments as proof that their engagement in Afghanistan, though difficult, was still worthwhile. (1)

It was not the first time Balkhi had said the education numbers were inflated. Only a month after his appointment, on 27 May 2015, Balkhi testified before the Wolesi Jirga, that, in certain insecure areas, although there were no schools, money was still allocated (and spent), including for teachers’ salaries. He said he believed the ministry’s previous figure of 11.5 million pupils in school was inaccurate and that the figures had been inflated to safeguard donor funding. This caused quite a stir. The media had a field day and reported that the education minister had uncovered ‘ghost schools’ in restive provinces and that he had claimed his predecessor had falsified data on open schools. On 11 June 2015, the United States Special Inspector General for Afghanistan Reconstruction (SIGAR) John F Sopko expressed his concerns and sent a letter to the US Agency for International Development (USAID), saying that according to the media, the current ministers of education and higher education had said that:

… former ministry officials who served under President Hamid Karzai provided false data to the government and to international donors, claiming that far more schools around the country were active than was actually the case, in order to obtain more funding. The Ministers reported that there are no active schools in insecure parts of the country, and that former officials doctored statistics, embezzled money, and interfered with university entrance exams. These allegations suggest that US and other donors may have paid for schools that students do not attend and for the salaries of teachers who do not teach.

Warren Ryan, a spokesperson for SIGAR, told VICE News there was no way to tell how much of the 769 million US dollars provided by USAID had contributed to legitimate programs and how much may have gone to ghost schools.(2)

Former minister of education Faruq Wardak defended his figures. In a statement sent to the media on 20 June 2015, he called the remarks by Balkhi “empty, ridiculous and insulting,” saying that, “the statistics that I have given to the international community during [my] seven years [in office] were not my own mental product” and that there was a system through which the statistics were collected directly from school principals and sent to governors and then up to the deputy minister and minister. Wardak called the accusations “politically motivated” and, at the same time, alleged that donor countries wanted to use the pretexts of corruption and lack of accurate figures to not deliver on their commitments and to undermine former government officials. (3)

In a response to Wardak’s insistence on the 11.5 million figure, Balkhi in his December 2016 interview (where he launched the new figure of a little over six million) repeated that the figure Wardak cited was not supported by the ministry’s database. “There was one figure in the database,” he said, “and another [different] figure that was reported to the media”.

Afghanistan’s education figures under Wardak

The figure of 11.5 million was first used by Minister Wardak and President Karzai when they spoke at an official event on National School Opening Day on 23 March 2014. Karzai, who for the last time as president symbolically rang the bell to start the new school year, said, “In 11 years, the number of children going to schools went up from less than one million to 11.5 million children” (see the transcript and video of his speech here and here). Wardak continued to trumpet the success in a June 2014 interview with al-Jazeera when he repeated the one to 11.5 million pupils over 11 years claim.

In 2009, when Wardak started in the education field and presented his five-year plan to the parliament, as candidate for the post as education minister, he put the total number of children going to school at seven million. He pledged to increase the number “to more than 10 million in the next five years.” (See the full text and video of his statement here and here). In 2012, three years into his tenure as minister and after Afghanistan joined the Global Partnership for Education, he reported an increase of 1.3 million newly enrolled pupils. He put the total at 8.3 million, of which 39 per cent were girls (which would mean 3.2 million girls in school). At the same time, according to Wardak, there were 4.2 million school-aged children who did not have access to education “because of insecurity, the lack of availability of schools, and the distance between their homes and their schools.” (see here) If Wardak’s figures in 2012 were correct, the figure of 11.5 million children in school in 2014 would represent an increase of 3.2 million in only two years.

Apart from the fact that such a large and rapid increase seems fairly unlikely, it also did not match other official figures provided by the Ministry of Education. Its reports for 2013 and 2014, for example, actually showed a decrease, from 9.7 million children in school in 2013 to 9.2 million in 2014. The reason for the drop is not clear (particularly since both reports cited the exact same number of teachers (203,148, including 31 per cent women) and schools (16,534). Nor is it clear why these figures deviated from those presented by Wardak. Even more confusingly, in 2015 Wardak gave a – probably more realistic – figure of “more than eight million” children going to school in his foreword to the Afghanistan National Education for All Review, (see here) thus contradicting both his previous statements and his ministry’s reports. This may merely indicate that, like many officials, Wardak does not read all documents and articles published in his name and simply signs them off, but it also illustrates the lack of consistency with regard to official Afghan statistics.

Like Wardak himself, some former and current officials in the ministry who were close to him defended the figure of 11.5 million. Kabir Haqmal, head of publications at the Ministry of Education, while seeking to reconcile the numbers that both ministers gave, told AAN on 3 January 2017 that “Faruq Wardak did not give incorrect figures when he said that 11.5 million children went to schools.” Haqmal argued that:

There were around one million [children] studying in Pakistan and Iran and they were also part of the figures. We [also] had around one million to one million two hundred thousand studying in informal classes conducted by, for example, UNICEF. Around five hundred thousand [children] were undergoing literacy courses. So he was not wrong.

He went on to try to reconcile this with the figures provided by the current minister, Hanif Balkhi, saying,

Regarding the figures given by the minister in his interview with Tolo, there was a slip of the tongue. He wanted to give an accurate figure. We calculated it for him. We said that around 9.2 million pupils were enrolled, but that 22 to 24 per cent [of them] were absent. When we deducted those who are absent, the figure was about 7.2 million, but during the interview, as a slip of the tongue, the minister said 6.2 million.

Amanullah Iman, Wardak’s former ministerial spokesman took the same line on 6 February 2017 when talking to AAN. He argued that the “more than one million pupils” who were enrolled in Afghan schools in Pakistan and Iran must be counted “because we provide textbooks and other services to these schools.” He also claimed that the 11.5 million figure had been correct, as it had been based on data from the ministry’s Education Management Information System (EMIS). Iman who is still an aide to Wardak, echoed the former minister when he called Balkhi’s remarks on the education figures “politically motivated and unrealistic.”

Moreover, current deputy minister of education Sayyed Hamidullah Amini also contradicted the claim by both officials that Wardak’s 11.5 million could be reached by adding the out-of-country students. On 26 December 2016 in the Wolesi Jirga, he stated that the total figure of 9.7 million had already “included students studying in our schools outside the country.” One of Wardak’s deputy ministers, Seddiq Patman, has also concurred with minister Balkhi in dismissing the figure of 11.5 million as incorrect. He was quoted in a media report as saying that he would “not confirm the statistics provided by the former leadership of the ministry [under Faruq Wardak]” and that he had at the time already relayed the message to the (former) president and the ministers that the statistics were “not accurate.”

How many pupils in how many schools?

The confusion over what to count in the overall figures has, however, continued under the new minster. Mujib Mehrdad, the spokesman for the Ministry of Education, told AAN there were currently 9.2 million pupils (9,234,459 to be exact) in 17,482 schools (counting both government-run and private schools) and 1,006 schools are currently closed. 9.2 million pupils is also the figure that other education officials use, including some who spoke to AAN. Deputy minister Amini also cited it in his report to the Wolesi Jirga on 26 December 2016. (see here) However, according to spokesman Mehrdad, out of the 9.2 pupils, around 2 million (2,042,294 to be exact) – or more than 20 per cent – are permanently absent. According to the Ministry of Education’s rules, an enrolled pupil cannot be removed from the database during the first three years of absence (counted consecutively). Mehrdad said that “some of these two million permanently absent have crossed the three-year limit and the ministry has started to omit them from the database.” Even so, this system of counting and the errors it may feed into the system had been flagged and questioned by Special Inspector General Sopko in his already quoted May 2015 speech:

The student numbers are also less than they might appear to be. For one thing, they are not independently verified. For another, as SIGAR reported last year, the ministry counts absent students as ‘enrolled’ for up to three years, before dropping them from the rolls. That’s right: a student who has not attended school in nearly three years is still considered as ‘enrolled.’ That’s like saying a spouse who packed up and left three years ago is still committed to you.

Mehrdad said if the ministry was to deduct the permanently absent pupils, the total number of children actually attending school would probably be around 7.2 million. (Like Haqmal, Mehrdad also said current minister, Balkhi, had made a mistake when he claimed that only a little over six million pupils would be left if the permanently absent pupils were deducted, explaining that the minister did not have the figures with him when he was talking). However, even the current, somewhat reduced figure of 9.2 million children in school cited by ministry officials could still be inflated. A member of a fact-finding commission appointed by President Ghani in July 2015 agreed that “If the permanently absent students were to be included, the number would go up to 9.2 million pupils” and explained that even this figure included duplications; all pupils who were registered both for general education and literacy courses, the member said, would be counted twice.

How security issues may have affected the education numbers

During minister Wardak’s tenure as education minister, Afghanistan’s country-wide security situation deteriorated. At least up to 2012, Afghanistan was considered “very heavily affected” by attacks on schools, students and teachers (see this 2014 report). (4) After a change in the Taleban’s policy towards education (see this 2011 AAN report on the layha), the number of Taleban attacks on education dropped, but did not go away all together. In 2016 UNAMA still documented 94 conflict-related incidents targeting or impacting education-related personnel, which was a 20 per cent decrease compared to 2015 (most of them perpetrated by insurgent groups). (5) The number of schools reported as closed by the Ministry of Education fell from 1,247 in September 2012 to 471 in March 2013 (see in this 2013 AAN report: pp 1, 16) – although, as with the other figures, it cannot be ruled out that these were manipulated or affected by unreliable data collection.

The substantial drop in education-related attacks and closed schools was linked to reported, unofficial negotiations between the Taleban and the Ministry of Education which aimed at allowing schools to function in exchange for giving the Taleban influence over aspects of the curriculum and the employment of teaching staff (see this 2011 AAN report on the changing Taleban policy towards education). In contrast to the Taleban, the government did not admit that such an agreement was reached (see for instance the ministry’s response to the 2011 AAN report).

It is difficult to assess what the combined effect has been of, on one hand, the general steady deterioration of the security situation in the country and, on the other hand, the agreement of the Taleban to allow education (under certain circumstances). A 2013 AAN update on the education deal found that the implementation of the deal had been patchy and that attacks on schools and teachers continued, albeit at a lesser rate. All in all, it seems unlikely that the greater leniency of the Taleban towards education, and their claimed cooperation, could have been to the extent that an additional several million children – including a large proportion of girls – could have been able to go to school (the increase claimed by former minister Wardak when in office). (6)

A fact-finding commission

Balkhi’s contention when he came to office in 2015 that his predecessor had got his figures badly wrong and the number of Afghan children going to school were far fewer than claimed did trigger a response from the executive. On 1 July 2015 President Ghani assigned a ten member fact-finding commission to conduct a comprehensive investigation into allegations of corruption in the Ministry of Education (the contention was that someone was pocketing money going to ghost schools and teachers). The commission was made up of five MPs, one senator, two civil society activists and representatives of the Attorney General’s office and the NDS. It started its work on 27 July 2015 and continued for four months. (7) The commission’s report has never been published, but several members spoke to AAN about their investigation and their reports were gravely concerning. They pointed to considerable confusion with regard to the numbers of schools, teachers and pupils. They also cited a large number of unfinished projects and described a variety of malpractice within the Ministry of Education.

In part, the commission’s findings showcased the genuine difficulty of establishing accurate figures in the face of different sources. For instance, AAN was told by a member of the commission that, according to their findings, up to 224 schools were closed in Kandahar province; meanwhile, the provincial education department had reported 150 schools closed, the ministry’s department of planning 158 schools and the NDS in Kandahar 149. This epitomises the difficulty faced by any fact-finding mission, but also signals that the accuracy of all figures (including the commission’s number of 224) need to be questioned.

Besides problems with data, the investigation also uncovered wastage, misuse of resources and a lack of oversight of school construction projects and textbook contracts. The commission reported that the construction of 1033 school buildings had remained incomplete, even though the final payments had been made. This was the case in both secure and insecure provinces. The commission also found seven contracts that had been signed with a private printing company, which – instead of printing the required textbooks – had printed textbooks of an old type that already existed in the stores within the Ministry of Education. As a result, hundreds of thousands of books were kept unused in storage, where they were spoiled. Similarly, in a separate case, Pashto language textbooks were printed twice and consequently rotted in storage. Another contract for 13.6 million textbooks was made with an Indian printing company which ended up producing low-quality books (many pages were left blank). The company promised to recompense the damages (it would either deduct 87,000 US dollars from the total cost or print 150,000 religious textbooks instead), but it is not clear if that compensation was ever provided. (8)

Another major finding concerned malpractice within the ministry. According to a member of the commission, it was found that 340 people who worked as heads of different departments and sections also received top-up salaries as advisors to the minister. For instance, the heads of the procurement and the audit department received additional salaries, respectively as procurement and audit advisers. These additional salaries ranged from 100,000 to 890,000 Afghanis on a monthly basis (which, at the time, was between 2,000 and 17,800 US dollars). Similarly, the delegation found that scholarships had been awarded to temporary employees to study in European countries; according to the ministry’s regulations, they were not eligible for such scholarships. Forty of these temporary employees, did not return to the country (reportedly including a girl who had been raped by an official in the ministry, and had been awarded a scholarship in return for her silence). Assets of the ministry had not been maintained properly or had gone missing. This included, in particular, 64 containers used as storage rooms, each costing 54,000 Afghanis, representing a total loss of 3,456,000 Afghanis (over 69,000 US dollars). When asked, officials said that senior staff, including a deputy minister, had taken the containers to their homes.

As an outcome of this investigation, a member told AAN, 33 dossiers documenting corruption were prepared. These dossiers named the former minister and 15 heads of provincial education departments as involved in malpractice, according to another member quoted by the press.

… but a final report kept away from the public

However, to the chagrin and frustration of the fact-finding commission, there has been no visible action taken with regard to the charges. One member complained that, “When the findings were presented to the president, he treated us coldly and said he would appoint a more technical team to look into the issues. But that never happened.” The member also told AAN that the MPs who were part of the investigation team received threats from some of their colleagues in parliament. Another member described how, when the commission presented the preliminary findings to the president, he was in a hurry and set to travel somewhere. According to him, the president said he would meet the delegation again, but never did.

The commission’s final report has not been made public and the president himself appears to be opposed to releasing the findings (see a media report on this here). USAID officials have been quoted as saying that President Ghani, while discussing the investigation’s preliminary findings on 4 January 2016, outlined specific organisational and management reforms, “such as introducing a national electronic payment system and a national public corruption council to minimize fraud and corruption.”

Previous investigations, by AAN and others

The controversy over the ministry’s figures and the report of the fact-finding commission were not the first indications that there were problems at the Ministry of Education. For example, in 2013, long before Balkhi’s testimony, AAN’s researcher Obaid Ali visited Ghor province and found empty classrooms, ghost girls’ schools and teachers’ salaries siphoned off by warlords (see here ). He visited a school in Ahangaran, 35 kilometres outside Ghor’s capital of Chaghcheran (now renamed Feroz Koh), which was supposed to be teaching 767 students (494 boys and 273 girls) in grades 1 to 12, with 13 teachers working three shifts a day, each for three hours. During Obaid Ali’s visit, he observed only five teachers and about 20 students showing up to class.

While the provincial director of the Afghan Independent Human Rights Commission (AIHRC) at the time estimated that more than 50 per cent of the schools in Ghor had been closed due to insecurity, Sebghatullah Akbari, the head of the provincial education department, insisted that only a few schools in the districts were “sometimes temporarily closed due to conflicts among illegal militias” ( see here) – reflecting a tendency of education officials to either deny or underreport existing problems.

These problems appear to have persisted, also under minister Balkhi in the National Unity Government. In November 2016, SIGAR, in collaboration with an Afghan civil society organisation, inspected 25 schools that had been rehabilitated or reconstructed (most between 2004 and 2007) as part of 57 USAID-funded projects in Herat province. They visited the schools during normal operating hours. SIGAR reported that while, on average, school staff reported that 61 teachers had been assigned to each school, the site visits found on average, only 18 teachers on school grounds, roughly the equivalent of 38 per cent of those reportedly assigned. In six schools – ie in almost a quarter – less than 20 per cent of the assigned teachers were on-site during the observed shift.

The Independent Joint Anti-corruption Monitoring and Evaluation Committee (MEC), in its June 2015 Vulnerability to Corruption Assessment of Teacher Recruitment in the Ministry of Education, also raised the issue of teachers failing to show up to work or existing in name only, referring to them as ghost teachers. It said this had been “a problem in Afghanistan for years. For example, while many schools in the Shindand district of Herat remained unused, teachers were continuing to receive their salaries.” (see here)

A member of the 2015 fact-finding commission recounted similar cases. The commission had, for instance, found that in Bamyan province in 2013/14, 928 contracted teachers (or ajir; see a previous AAN’s report on teachers here) were reported to have retired and received a lump sum of 100,000 Afghanis (around 2,000 USD) each. According to EMIS, however, in 2013 there were only 279 ajir teachers and in 2014, only 310 – none of whom had retired (meaning that the 928 ‘retired teachers’ did not exist physically at all). The commission also found that as many as 2000 teachers in Herat existed only on paper. (9) According to the commission, ghost teachers were mainly found to be among the contracted teachers: “There were photos, signatures and payments for teachers who did not actually exist [as teachers].” MEC in its reporting had also found the temporary teachers particularly vulnerable to corruption. (10)

Conclusion

The right to education for “all citizens of Afghanistan” is enshrined in the constitution. (11) Since the fall of the Taleban, there has been tangible and important progress, but the tendency – both within the Afghan government and among international donors – to showcase the education sector as a major success story seems to have come at the expense of transparency and clarity, and to have resulted in exaggeration and room for corruption.

The ‘donor factor’ seems to have served as a double-edged sword. On the one hand, donor pressure can spur officials into action. But the fear that the discovery of scandals could lead to donors suspending funding can also discourage genuine probes. One of the members of the 2015 fact-finding commission was hesitant about disclosing the full extent of what they had found, saying: “There is stagnation in the education sector, and corruption everywhere. There are ghost structures. It is very obvious. It is our own internal issue that we need to resolve. But if we disclose some of these issues, donors and embassies may cut off their funding.”

The Ministry of Education has now made it clear that its previous numbers were inaccurate, but appears still to be struggling to clean up its databases. There needs to be greater clarity on which pupils are counted and which are not, and a greater effort to ensure that the new figures represent actual children going to school.

 

Edited by Martine van Bijlert and Thomas Ruttig

 

 

(1) For instance USAID, in its response to a 2013 SIGAR request for a list of its most successful programs in Afghanistan, said that “In the education sector, there are clear indicators of progress. In 2002, only an estimated 900,000 boys, and virtually no girls, were in school. Now, there are 8 million students enrolled in school, more than a third of whom are girls.” USAID has disbursed approximately $855 million for education programs in Afghanistan, as of 30 June 2016. (see here) Similarly, the World Bank in its November 2016 overview of Afghanistan said,” In 2001, no girls attended formal schools and boys’ enrolment was about 1 million. However, education is now one of Afghanistan’s success stories.”

(2) Reporting from the provinces shows there are different forms of ‘ghost schools’. Some do not exist at all, while others are simply non-functional. For instance in December 2014, Tolo News quoted tribal elders in Shahjoy district of Zabul province as saying that “only two schools are operational… but money is received for ten schools.” In other cases existing schools run below capacity, employing fewer teachers and teaching fewer students than officially claimed, as this 2013 AAN research from Ghor province found. Minister Balkhi in an interview in February 2016 defined ghost schools as “when a pupil does not go to school, [when] the tent is worn out and dilapidated, [when] the school does not have a building and the areas is insecure, this is a ghost school.”

(3) Balkhi, an ethnic Tajik in his fifties from Balkh province and a member of Jamiat-e Islami, was introduced as a candidate for his post by the chief executive’s mainly Jamiati camp (see AAN’s previous report for background here). Balkhi was also one of the seven ministers who lost votes of confidences in parliament in November 2016 after they were accused of having spent less than 70 per cent of their ministries’ development budgets (see a previous AAN’s report here). Former minister Wardak is a member of Hezb-e Islami and a close ally of former president Hamed Karzai. He supported Ashraf Ghani during the 2014 presidential elections and currently serves as a presidential adviser.

(4) A report commissioned by UNESCO and written by CARE, published in 2010 (p 173-7), saw a steady rise in attacks, from 241 in 2006 and 242 in 2007 to 670 in 2008. The already quoted 2014 report found over 1,000 attacks on schools, universities, staff and students, for the following years from 2009 to 2012.

(5) Already in the 2009 version of their layha (rule book), the Taleban had deleted all provisions declaring the education system a target. Apparently it took some time to ensure that the new approach was widely implemented. The current, although lower figures of attacks on schools and teachers show that these attacks have not completely ceased.

(6) AAN has seen a translation of the Taleban education policy, a 75-article document published in 2012, called “The Islamic Emirate of Afghanistan: Purposed Law for Education and Training.” It stipulates that education should be provided for all “children,” largely avoiding the terms boys and girls and keeping the exact policy on girls’ schools vague.

(7) The members of the commission included: five MPs (Abdul Khaliq Balakarzai, Abdul Qadir Qalatwal, Humaira Ayubi and Muhammad Wali Alizai, and Nader Khan Katawazi); one senator (Muhammad Hanif Hanifi); two civil society members (Attaullah Wisa and Muhammad Daud Salim); Muhammad Aref Nuri from the Attorney General’s Office and; a representative of NDS known as Agha Saheb. In addition to the fact-finding commission, according to this SIGAR report, “By August, provincial teams from the Afghan government were assigned to collect more reliable figures for 6,000 schools across all 34 provinces, with field work conducted in September 2015.”

(8) On 7 April 2013 when then minister Wardak was summoned by the Meshrano Jirga to provide an explanation about the many errors in textbooks, he challenged the senators, saying if anyone found a single mistake in the textbooks, he would resign. On the same day, the media and social media shared many egregious spelling mistakes, which either altered the meaning or rendered the words meaningless altogether (see this report by Ariana television).

(9) Other (anecdotal) examples found by the commission included a teacher from Kandahar who had migrated to Quetta in 2005, but continued to receive his salary until his death in 2012. Another teacher in Kandahar was registered in two separate schools that were four hours distant from each other (rendering daily commuting and teaching in both schools impossible). Also, a member of the border police was found who also received salary as a teacher, as was a teacher who had been killed in an attack long before.

(10) MEC also found temporary teachers particularly vulnerable to corruption. It wrote in its report:

While applicants for fixed-term or permanent teaching positions must go through the competitive examination process, there are thousands of other teachers who are employed for nine months of the educational year and are compensated based on lecture hours. There is no transparent mechanism for hiring this latter category of teachers and they are not obliged to possess the same educational qualifications or pass the competitive exam. … Respondents stated their belief that this hiring mechanism is particularly vulnerable to producing “ghost teachers,” as it is not subjected to the same recruitment procedures or safeguards.

(11) Article 43 of the constitution proclaims:

Education is the right of all citizens of Afghanistan, which shall be offered up to the B.A. level in the state educational institutes free of charge by the state. To expand balanced education as well as to provide mandatory intermediate education throughout Afghanistan, the state shall design and implement effective programs and prepare the ground for teaching mother tongues in areas where they are spoken.

Article 44:

The state shall devise and implement effective programs to create and foster balanced education for women, improve education of nomads as well as eliminate illiteracy in the country.

 

The Leahy Amendment, or Leahy law, is a little known piece of United States legislation that bans US assistance to units of foreign security forces where there is credible information that a member has committed gross violations of human rights. The Leahy law has accomplished far less than its champions hoped for, but far more than its critics presume, and nowhere are these contradictions on better display than in Afghanistan. Guest author Erica Gaston* has taken a closer look at some post-2014 improvements to its enforcement in Afghanistan, and discovered that the foremost security official in the south, Kandahar Provincial Police Chief Abdul Razeq has failed Leahy law vetting. However, how far he and his forces have been excluded from receiving assistance is an open question, and provides a litmus test of the law’s effectiveness.

This dispatch is one of a number of publications under a joint three-year project of AAN, the Global Public Policy institute (GPPi), and the American University of Iraq, Sulaimani (AUIS). The project explores the role and impact of militias, local or regional defence forces or other quasi-state forces in Afghanistan, Iraq, and Syria, including mechanisms for foreign assistance to such actors. Funding is provided by the Netherlands Research Organisation.

The Leahy Law

The US Leahy law was first proposed by Vermont Senator Patrick Leahy in 1997 and has been a permanent fixture of the US foreign assistance landscape since 2008. There are parallel versions of the Leahy amendment in the Foreign Appropriations Act of 1961 and the annual Department of Defence Appropriations Bill, which respectively authorise US Department of State (DoS) and US Department of Defence (DoD) funding. (1) Although there are slight distinctions between the two, in essence, both versions prohibit US assistance to any unit of foreign security forces where there is “credible information” that one of its members has committed “gross violations of human rights.”(2) Where credible allegations are found against a member of the security forces, not only that individual but his entire unit is “tainted” and cannot receive assistance from either DoS or DoD funds. This includes training, participation in conferences supported with US funds, provision of supplies, participation in US-funded workshops or meetings, or other US-funded activities.

The vetting process is managed by the State Department’s Bureau of Democracy, Human Rights, and Labour (DRL), for both DoS and DoD funding. In 2010, DRL created a database system called the International Vetting and Security Tracking (INVEST) system to track and record allegations, which can come from reporting by journalists, human rights activists, US intelligence sources or the State or Defence departments’ own reporting in country. According to the State Department’s guide on the process, where assistance is proposed for the individual or unit, the relevant US embassy first enters the information into INVEST to check for any negative allegations. If no credible negative allegations are found, the individual or unit’s name goes onto a second round of checks through the Washington DC bureau of DRL. Where the credibility of the allegations is unclear, DRL or the US embassy concerned can decide to investigate further. State Department guidance notes that the standard of what is “credible” for Leahy vetting is not the same as would be required for evidence in a court of law.

When all of those involved in the vetting agree that the information is credible, the individual or unit is rejected and cannot receive any assistance unless and until “remediation” happens, meaning when the foreign government has taken steps to address the violations. This is typically through prosecution or disciplinary actions, but can be through training, reorganisation of units, or other means in the DoD version of the law. (3) Additionally, State Department officials have a “duty to inform” the foreign government which individuals are blocked under the Leahy law, in order to give an opportunity for remediation.

Remediation is the primary exception in the Leahy law, however, there is also a blanket “waiver” in the DoD version that could allow the Secretary of Defence to waive the Leahy law in “extraordinary circumstances,” implicitly where serious national security interests are invoked. However, this waiver has never been requested, nor applied. There are also exceptions for DoD-funded foreign disaster assistance.

Public reporting requirements on the Leahy law are relatively new – they were introduced in 2011 – and so far have not been implemented. (4) As a result, there are no public records on how often the Leahy law has been used to block assistance in any particular country. However, the Congressional Research Service reported that DRL completes an average of 130,000 unique vetting processes per year. Approximately one per cent fail the vetting, although a higher number – perhaps as high as ten per cent according to officials interviewed – may be suspended because of “administrative reasons.”

Application of the Leahy Law in Afghanistan

Since its inception, the Leahy Act has received equal measure of public accolade and scorn. The fact that any country is willing to give human rights concerns the ability to trump other security or policy considerations is significant, especially coming from the US. However, both US officials and some foreign aid recipients have criticised the law, arguing it undermines important policy objectives by blocking the US’ ability to provide assistance to critical security partners. (5) On the opposite tack, other critics have argued the law has too many exceptions, and is under-applied. Again and again, in country after country, evidence of abuse does not appear to lead to aid cut-offs – due to a combination of security or political interests, the difficulty of substantiating allegations, or other administrative and implementation challenges (see the US Government Accountability Office’s reports of 2005, 2006, and 2013).

Afghanistan would appear to be a case in point in terms of the latter critiques. Since 2003, commanders notorious for widespread and serious human rights abuses have continued to receive significant US assistance. The lack of any seeming application of the Leahy law (again, bearing in mind the lack of public reporting on where it is applied) has appeared even more egregious because of the amount of documentation and reporting in Afghanistan on human rights abuses, not only by journalists and rights activists, but also by US officials themselves.

If Afghanistan is a case study of the Leahy law’s failings, then Abdul Razeq has been the poster child. At least since 2006, during his time first as Spin Boldak Border Police Chief and then as Kandahar Police Chief, there have been numerous, repeated and substantiated allegations against Razeq and his men for extrajudicial killing, enforced disappearances, torture and extreme abuse of detainees. (6) In a searing 2011 piece for The Atlantic, “Our Man In Kandahar,” journalist Matthieu Aikins documented how millions of dollars of US training and equipment continued to flow to Razeq and forces under his command despite clear State Department knowledge and evidence of abuse. Aikins interviewed witnesses who had been electrocuted, hung from the ceiling in handcuffs, or beaten with a cable or metal rod by Border Police forces under Razeq’s command. Another investigative piece by Anand Gopal, “Kandahar’s Mystery Executions,” documented patterns of torture and extrajudicial killing by policemen under Razeq’s command in Kandahar, including by electrocution and beheading. Several of those who appeared to have been killed by Kandahar police force had holes drilled through their skulls, or were missing noses, ears, eyes, or other body parts, Gopal reported.

Past investigations have indicated that Razeq’s command had a systematic effect, increasing and regularising abuses across Kandahar forces under his command. UNAMA’s 2013 investigation into detention facilities, for example, singled out the Kandahar Afghan National Police detention as the only facility where torture had risen to the level of being systematic; it noted a marked increase in the “level of brutality” and the use of cruel, inhuman and degrading treatment since Razeq had taken charge. (7)

In addition to this extensive public record, journalists and rights activists have provided specific evidence directly to DRL on abuses by Razeq and those under his command. The extent of the allegations, and level of documentation against Razeq and his forces has been so substantial that there have been persistent calls to block him, and persistent questions as to why the Leahy law has not been invoked in Razeq’s case.

As late as 2015, State Department officials were unwilling to publicly comment on why such an apparently huge anomaly in Leahy accountability continued. However, in more recent interviews by this author with US officials involved in implementing the Leahy law, several said Razeq has since failed Leahy vetting and the law has been enforced against him.

Much of the funding for Kandahar police force salaries, equipment, and other assistance comes from the US, specifically US DoD funds. In addition to bilateral assistance, these are channelled through the UNDP-administered Law and Order Trust Fund for Afghanistan (LOTFA). So, the news that Razeq has failed Leahy vetting should raise two key questions. First, and most obviously, why is he still receiving salary and support as Kandahar police chief? Second, why are those under his command, i.e. the Kandahar police force, also still receiving assistance?

To unpack both questions requires a little background about changes to the Leahy law that took place in 2014, and how the Leahy law application has developed in Afghanistan since then.

Post-2014 Leahy Law Reforms

As noted, the DoS and DoD have always had slightly different versions of the Leahy law. One of the biggest differences is the definition of what the Leahy law applies to – in essence, what is assistance? Prior to 2014, the language in the DoD version limited Leahy law application only to “training.” DoD interpreted this narrowly and so, prior to 2014, the Leahy law was not considered to be applicable to most DoD funding in Afghanistan, including salaries, equipment, and many other combined train-and-equip measures.

In the Financial Year (FY) 2014 DOD appropriations bill, Congress widened the scope, changing the language of the DoD provision to include not only training, but also “equipment, or other assistance.” (8) With this change, the vast majority of US assistance to Afghan security forces that previously had been excepted was now subject to Leahy vetting.

While significant, the change in definitions would not have been enough in itself to make a substantial difference. The effectiveness Leahy law ultimately comes down to implementation, which varies starkly from one country to another. However, with the change in the law in 2014, DoD decided to embrace the broader mandate for Leahy enforcement and set up processes to implement it more meaningfully in Afghanistan, according to officials interviewed by this author. From 2014 on, a process evolved wherein DoD staff regularly monitored both classified and public reports for allegations of abuses. A committee of DoD and DoS officials met regularly (often biweekly) to discuss a spreadsheet summarising each allegation. They were required to decide affirmatively whether to reject, further investigate, or determine the allegations not credible. The more dedicated DoD scrutiny was helped by efforts at the State Department, since 2011, to improve and better support Leahy implementation, including the establishment of the INVEST database system. (9)

What resulted from these reforms was a higher level of scrutiny and proactivity than happens in most countries (with the possible exception of Colombia, the country the Leahy Act was originally created for). In addition, in Afghanistan, US officials have resources to cast a broader net. Due to the many years on the ground and the greater and deeper staff resources in country, US officials have more knowledge about Afghan security structures, more sources of information, and more contacts with local officials than in many other countries. This can help in investigating allegations, identifying the unit to be blocked, and in following up remediation.

While there are no public statistics on how many members of the security forces in Afghanistan have failed Leahy vetting, Razeq is not alone. Officials would not disclose how many individuals or units had been blocked in Afghanistan, or even give a ballpark figure, but they said that vetting, exclusion and remediation happened more regularly in Afghanistan than in other countries. For example, of the caseload of remediation cases in August-September 2016, they said, just over a third were from Afghanistan. (10) In this respect, the processes that evolved for Leahy vetting in Afghanistan offer a model for the type of regular scrutiny and follow-up that should be happening in other countries where US security assistance is given.

Partial Exclusions and the Notwithstanding Clause

The decision to more broadly apply a law with the potential to cut off valuable security partners in the name of human rights would seem to go against the broader narrative that the US has prioritised security objectives above human rights or other policy concerns in Afghanistan. US officials have often conceded to, or even pressured for, corrupt and abusive warlords to take positions of power, created loopholes in disarmament programmes for abusive forces who filled security gaps, or continued to fund contractors and other subsidiaries who engaged in extortion, paid off the Taleban, or were part of criminal networks. As former US senior advisor Barnett Rubin has framed it, “When there was a conflict between the counterterrorist agenda and anything else, the counterterrorist agenda won out.”

There are two critical reasons why DoD may have been willing to make such a shift. First, bureaucracies are complex creatures. While the overall thrust of US policy may have elevated military expediency above human rights accountability, individuals and agencies across the US government have funded and supported human rights initiatives for the last fifteen years. Military officers and civilian officials have sunk considerable funding and energy into developing a military justice system for the Afghan government, providing Laws of Armed Conflict training, and encouraging enforcement. Those interviewed suggested that, internally, DoD had decided that having a provision like the Leahy law that allowed them to screen for gross violations of human rights (GVHR) and to pressure the Afghan government, was seen as a valuable part of these overall military accountability efforts. As one DoD official framed it, “There are lots of very good policy reasons that we might not want someone with a [bad] human rights record to be supported.”

Equally important was that at the same time that Congress broadened what Leahy applied to, it gave DoD a potential ‘out’ for operations in Afghanistan, in consideration of the scope and importance of security assistance at that time. In the same FY2014 appropriations bill, Congress authorised a special type of waiver for the Afghan Security Forces Fund known as a ‘notwithstanding clause.’ The waiver (quoted from the FY 2014 DoD Appropriations Act) reads:

For the “Afghanistan Security Forces Fund… That such funds shall be available to the Secretary of Defense, notwithstanding any other provision of law, for the purpose of allowing the Commander, Combined Security Transition Command—Afghanistan, or the Secretary’s designee, to provide assistance, with the concurrence of the Secretary of State, to the security forces of Afghanistan, including the provision of equipment, supplies, services, training, facility and infrastructure repair, renovation, and construction, and funding. (11) 

What that translates to in non-legal English is that any other conflicting provision of US law – from a minor procurement rule, to the application of the Leahy law – can be waived when it comes to supporting the Afghan security forces. DoD could apply the Leahy law more broadly and meaningfully in most cases, safe in knowing that where doing so would compromise serious security objectives, it could use this exclusion.

The notwithstanding provision is currently only being applied in Afghanistan, according to officials interviewed (although notwithstanding provisions have existed in other funding authorisations related to security forces). (12) The Obama Administration did request – but was denied – broader notwithstanding authority for financial year 2015 funding for counter-terrorism operations in places like Syria (see here at p 5-6) and Iraq. There has been ongoing discussion between Congress and DoD officials about whether to phase out the notwithstanding provision for Afghan Security Forces Fund in financial year 2017 funding.

While this notwithstanding clause might seem like a blank cheque, it is in practice a very difficult cheque to cash. Any such waivers require direct sign-off from the Secretary of Defence and must be taken on an individual basis, so the issue would have to reach a very high level of importance before it would even be considered.

Because of the policy considerations discussed above, DoD has not used the notwithstanding clause to block Leahy application as a whole in Afghanistan, but has used it to limit its application in select cases. One DoD official gave the example of a situation in which they found gross human rights violations by an individual or a unit, but cutting that individual off would have resulted in gaps in security protection. Instead he said they would use the notwithstanding authority to create a partial exception to the Leahy law – all assistance to that unit would not be blocked, but they would “create other repercussions” for the individual. Often this also depends on the type of assistance at issue. As one DoD official framed it, it is tough to give fuel assistance to the army, but withhold it from Unit X, or give boots to all policemen and women, but take back the ones from Unit Y. Certain types of assistance – the purchase of a plane ticket, sponsoring participation in a course – are easier to block because it is given on an individual, rather than security force-wide, basis. Thus, a blocked individual, or his immediate surrounding unit might no longer be able to receive direct US military training and advising, or go on a training junket to the US, but might still receive the same equipment, and supplies (likely including salary) that is channelled to all Afghan forces through LOTFA.

Unit Exclusions and the Special Case of Abdul Razeq

Officials interviewed confirmed to this author that Razeq had failed Leahy vetting and had not been remediated. However, they would not provide specific details on the ways in which he is prohibited from receiving US assistance. This suggests that some of the possible exclusions, outlined above, have been used to implement a partial or selective ban on Razeq and his men. As in the example provided above, perhaps he still receives the same support that all police officers receive through LOTFA, but cannot himself receive direct US military training, travel to the US, or other direct perks.

How Razeq’s unit is defined is also important. The standard interpretation of the Leahy law is that once an individual is rejected under the law, the entire unit is “tainted” by that abuse. No one in the unit can receive any DoS or DoD assistance. Where the individual is a low-ranking foot soldier, only his immediate, lower level unit would be blocked. But where credible allegations are established against a senior commander, all military units or individuals under his command are also considered tainted and typically blocked from US assistance, absent remediation. This is the standard practice, but defining the surrounding unit is ultimately a matter of discretion, and could vary on a case-by-case basis.

Taking the standard interpretation of a commander’s unit should mean that once Razeq was blocked under Leahy, neither he, nor any forces under him – in essence, all of Kandahar police forces – should be eligible for US DoD or DoS assistance. This clearly has not happened. Instead, what appears to have happened is that for this select case only Razeq, and perhaps a few of those in immediate proximity to him (who may also have credible allegations against them specifically), have been blocked under Leahy. All others under his command – the whole Kandahar provincial police force – are still considered eligible for US support.

Is Vetting Worth It?

Trying to limit support to human rights abusers is important. Enforcing human rights criteria over foreign assistance more rigorously in the past would not only have been more consistent with long-standing western rhetoric about human rights, but would probably have also brought strategic benefits. In Afghanistan perhaps more than anywhere, there is evidence that western support or acquiescence for human rights abuses, corruption, and other misconduct created significant blowback and undermined larger policy goals.

Leahy vetting in Afghanistan, even with its faults, stands out as a laudable effort to do something. No other ISAF member established a similar vetting programme in Afghanistan, despite equally high human rights promises and significant Afghan security force support (if not as high as the levels of US support). The author asked officials from several European countries if such vetting and tracking programs had been tried, either in Afghanistan or in other countries, and was told there simply had not been the resources to systematically track whether those receiving assistance had engaged in abuses. A Dutch interviewee gave the example of a 2012 Dutch police training programme in Kunduz that ran aground due to tracking and monitoring requirements imposed by the Dutch parliament. Although the Dutch program was aimed at a different purpose – ensuring that police trained by the Dutch were not those engaged in paramilitary or offensive activities – the Dutch official said the lesson they had come away with was that any vetting and tracking (for human rights, training, or another purpose) was too cumbersome: “The final evaluation of the programme was very critical of the tracking and monitoring and for that reason, politically, they would never [again] institute a tracking and monitoring programme.”

Yet, if the Leahy law application in Afghanistan is the best we can get, and even that best-case scenario is riddled with implementation failures and ‘Razeq-sized’ exceptions, is it still worth doing? Is it more valuable to have some form of human rights vetting – even if it results in, at most, a couple of dozen officers excluded, or partially excluded – than to have nothing at all? And where vetting criteria are established, is there value in creating some exceptions and safety valves – for example, something that would prevent a severe consequence like the entire Kandahar police force being cut off from salaries and equipment? Or do such exceptions undercut the principled value of creating human rights criteria at all?

These are important questions, but for the moment difficult ones to answer. There is too little public information to properly evaluate Leahy accountability in Afghanistan. Greater public reporting on who has been excluded and how this affects accountability in Afghanistan could strengthen the case that the Leahy law has improved human rights accountability, but for now the verdict is still out.

Regardless, it seems likely that this is the high point for Leahy accountability in Afghanistan. Carrying out this kind of programme is not cheap – it costs money, significant amounts of US officials’ time to implement, and trade-offs on other policy goals. As US engagement in Afghanistan continues to draw down, and resources in Washington DC and in Afghanistan are re-assigned elsewhere, the practical assets that allowed the Leahy law to be implemented somewhat more rigorously will decline. With priorities shifting elsewhere, and even Afghan officials unwilling to invest in accountability, there is likely to be a shift toward less, not more external accountability mechanisms in the near term.

* Erica Gaston is a human rights lawyer with the Global Public Policy institute, in Berlin, Germany. She has worked on numerous field research studies and rule of law programming in Afghanistan since 2008.

 

(1) The State Department version of the Leahy Law is found in Section 620M (22 U.S.C. 2378d) of the Foreign Assistance Act of 1961, as amended, and affects funds under the Foreign Assistance Act and the Arms Export Control Act. The Defence Department version of the Leahy Law is a recurring provision attached to the annual Congressional appropriations bill for Department of Defence funding. Bringing the two different versions or interpretations of the Leahy Law into alignment has been a continuing process over the last decade. For a larger discussion of the differences and legislative efforts to reform both provisions, see Nina M. Serafino, June S. Beittel, Lauren Ploch Blanchard, & Liana Rosen, ‘“Leahy Law” Human Rights Provisions and Security Assistance: Issue Overview,’ Congressional Research Service, 29 January 2014 .

(2) This includes “torture or cruel, inhuman or degrading treatment or punishment” and “flagrant denial of the right to life, liberty or the security of the person” as well as other types of abuse. The Foreign Assistance Act of 1961, Pub L No 87-195, 75 Stat 424 (1961).

(3) The DoS version of Leahy defines remediation as when “the government of such country is taking effective steps to bring the responsible members of the security forces unit to justice,” which is understood as official court processes or other formal disciplinary action. The FY2014 DoD version defined remediation as when “all necessary corrective steps have been taken.” DoD has preferred that remediation happen through the military justice system, the Congressional Research Service notes (p 5-6), but it could also include reorganisation of units, or other measures. Officials interviewed noted that since 2014, DoS and DoD officials have been working to bring the remediation standards closer together in practice. DoS officials noted that while they feared that reorganization of units would prove to be a major loophole, in their experience, it had not so far been proposed as a remediation avenue.

(4) In December 2011, the Consolidated Appropriations Act 2012 created new procedural requirements for the State Department implementation of the Leahy law, including that it “make publicly available, to the maximum extent practicable, the identity of those units for which no assistance shall be furnished pursuant to the law.” See Government Accountability Office, ‘Additional Guidance, Monitoring, and Training Could Improve Implementation of the Leahy Laws (GAO-13-866),’ September 2013, p 5-8.

(5) US officials or implementing partners involved in applying the law have tended to argue that the Leahy vetting is time-consuming, difficult to implement, and undermines other key policy goals. For example, in hearings and public statements in 2013, the head of US Special Operations Command Admiral William McRaven argued that Leahy exclusions limit support to important partners for US forces in many countries, and can be counter-productive by preventing the type of human rights training that might prevent abuses. Recipients of US assistance have also sometimes criticised the law. In one of the most public recriminations, in July 2015, Nigerian President Muhammadu Buhari argued that the Leahy law had “aided and abetted the Boko Haram terrorists” by impeding US military assistance to Nigeria.

(6) Anand Gopal documents numerous allegations of extrajudicial killings by police under Razeq’s command in Kandahar, in ‘Kandahar’s Mystery Executions: Are the Afghan police using torture to achieve peace?’ Harper’s Weekly, September 2014. In “Our Man in Kandahar” Aikins details an infamous March 2006 incident in which Razeq ordered the extrajudicial killing of 16 men who were Razeq’s rivals in smuggling routes, and successfully passed it off as the result of a gun battle with the Taliban. Despite an internal ministry of interior investigation, international attention to the issue, and strong evidence suggesting guilt, no charges were made. Aikins’ article also describes his investigation of previously unreported extrajudicial killings of two other men in September 2010, who had been detained on suspicion of connection with a police killing. They were found handcuffed and shot. In terms of enforced disappearances, UNAMA has received allegations of 81 men going missing after being detained by ANP between September 2011 and October 2012. A reference to this UNAMA reporting can be found in Human Rights Watch, ‘“Today We Shall All Die” Afghanistan’s Strongmen and the Legacy of Impunity,’ 3 March 2015, p 79.

(7) Torture was found to be more severe and systematic at Kandahar facilities than in ANP facilities in other provinces – it was the only province in which facilities met the standard for “systematic torture.” Torture was also found in more Kandahar facilities than in facilities in any other province, seven in total in Kandahar province compared to 15 non-Kandahar facilities nationwide. UNAMA, ‘Treatment of Conflict-Related Detainees in Afghan Custody: One Year On,’ January 2013, p 56-57.

(8) The direct language can be found in Senate Appropriations Committee (SAC) version of the FY2014 DOD Appropriations bill (Section 8057 of S. 1429), the final version of which is in Consolidated Appropriations Act, 2014 (Division C, Section 8057, P.L. 113-76, signed into law January 17 since 2014). For a larger discussion of the change in language, and other reforms in 2011 and 2014, see the Congressional Research Service 2014 report on the Leahy Law referenced in endnote 1, p 5.

(9) Following the financial year (FY) 2014 bills, for example, the legal office at the US Department of State made a determination that assistance under the Leahy law was to be interpreted broadly, including not only training, but practically any engagement or activities involving State Department funds and foreign security forces. As described in endnote 3, there were also some reforms to the State Department’s version of the Leahy law in 2011 that would overall have the effect of giving vetting more teeth and scope, but also increased or altered procedural requirements. For specifics on these changes, see the Statement of Lauren Ploch Blanchard, Specialist in African Affairs, Congressional Research Service, before the House Foreign Affairs Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations Hearing: “Human Rights Vetting: Nigeria and Beyond,” 10 July 2014, p 3. Further discussion of changes made to the language of the law and to its implementation from 2011 can be found in the Congressional Research Service 2014 report cited in endnote 1.

(10) The higher number of exclusions and remediation in Afghanistan is likely due, in part, to the sheer scale of assistance – there are more Afghan security forces eligible for assistance that must go through vetting, and also a stronger and longer-standing US relationship with the Afghan government that allows the US to press for remediation more than in other countries. However, it also appears to be in part because of the decision to implement the Leahy law more extensively, and the presence of resources on the ground to do so.

(11) H.R.2397 – Department of Defence Appropriations Act, 2014, 30 July 2013, 113th Congress.

(12) The Congressional Research Service report (p 5) notes that “the International Narcotics and Law Enforcement (INCLE) funds and Nonproliferation, Antiterrorism, Demining, and Related Programs (NADR) funds are exempt under notwithstanding provisions, but the State Department generally applies the Leahy Law as a matter of policy.”

Armed drones came of age, by chance, at the onset of the United State’s ‘war on terror’. Washington has used them ever since to provide close air support to troops on the ground and to carry out targeted killings. In Afghanistan, they have been relatively uncontroversial, but in other countries, their legality, effectiveness and potential harm to civilians have all been questioned. In her second dispatch on the subject, Kate Clark looks at how different countries have experienced armed drones and asks whether a US ‘drone-mainly’ mission of the sort seen in Pakistan’s tribal areas might one day be seen in Afghanistan.

AAN’s first dispatch on drones looked at how they came to be developed and used in Afghanistan: Drone warfare 1: Afghanistan, birthplace of the armed drone.

A ‘drone-mainly’ US mission in Afghanistan? 

For the moment, the US seems comprehensibly embroiled in Afghanistan and, indeed, possibly about to enlarge its ground force (see here). However, if Washington did demand of its military a narrow, counter-terrorism mission in Afghanistan with fewer boots on the ground, drones would be the obvious, relatively cost-effective option. They need far less support in or near the battlefield than ground troops or other types of aircraft. They need somewhere to fly from – and the further away from the battlefield, the trickier this becomes in terms of carrying fuel and the time spent getting to and from a location. However, they only need a limited force located with the drones to ensure repairs and maintenance, and the collection or destruction of wreckage when a drone crashes (although this is far less substantial than the force needed for the search and rescue of a downed pilot). Piloting drones, however, can be done from anywhere in the world.

If Washington did decide to pull back to a mission focussed on the targeted killings of suspected members of al Qaeda and ISKP/Daesh (and possibly the Taleban, if they were seen as a threat to US interests), the way it would do this is evident from the experiences of other countries. Washington has deployed drones for targeted killings as its only or main tactic in Pakistan (since 2004), Yemen (in 2002 and then since 2009) and Somalia (since 2011). This dispatch looks first at why targeted killings using drones has become such an integral part of the US war on terror, before delving into the experiences of US drones in these three countries.

The expansion of the American armed drones programme

 Technological advance – the development of the armed drone in the last 1990s and early 2000s – enabled America to establish a targeted killing programme. Previously, killing someone in a foreign country needed either the deployment of forces or local proxies, or the ‘blunt instrument’ of a missile strike. Drones, however, can cross borders easily and virtually risk-free to those piloting and deploying them, at least when flown into countries with either an acquiescent government or a weak military. They have reduced the political and military costs of initiating hostilities. The US targeted killing programme has also been driven by the political transformation brought about by 9/11: Washington needed to deal with a non-state, terrorist enemy dispersed in different countries and decided a military course of action was necessary and targeted killing the most effective tactic.

The sort of uneasiness felt by the CIA and White House about assassinating al Qaeda leader, Osama bin Laden before 9/11, as described in AAN’s first dispatch on drones, became overnight a thing of the past. Indeed, the swell of support for America and its government by US citizens, other nations and institutions such as the United Nations and NATO in the wake of 9/11 meant there was little opposition voiced to what would previously have been a highly contentious tactic.(1)

The legal controversy

The debate over whether America’s targeted killing programme is lawful centres on whether the US is actually involved in an ‘armed conflict’. Except during wartime, states cannot use lethal force, unless as a last resort and when absolutely necessary to save human life, for example, a police officer shooting someone who is about to kill another person. (This is according to International Human Rights Law.) Critics of the US targeted killings programme say the level of violence from al Qaeda and ‘associated forces’ is too sporadic and on too small a scale for it to be categorised as an armed conflict, so America’s use of lethal force is therefore unlawful. (2) The US has responded by saying it does not need to establish sufficient intensity of violence in each location where al Qaeda is based: even in places “outside areas of active hostilities” (its phrase), its use of lethal force is lawful. Yet that would mean, a senior legal advisor to the International Committee of the Red Cross (see here) has conjectured, that Washington has expanded its ‘battlefield’ to include the whole world, something which cannot be permissible.

The US also holds that it is acting in self-defence (allowed for by the UN Charter). When members of non-state groups pose a terrorist threat to US citizens or interests, Washington says, and the host government is “unwilling or unable” to deal with them, it can legally carry out targeted killings to defend itself. (Israel has made this argument for decades and the United Kingdom more recently). Critics such as former United Nations Special Rapporteur on Extrajudicial, Summary Or Arbitrary Executions, Philip Alston, says such arguments have led to the “displacement of clear legal standards with a vaguely defined licence to kill, and the creation of a major accountability vacuum.”

Whichever side of the argument one comes down on (for a selection of papers outlining the legal debate, see footnote 3), it is clear that the technical capacity to carry out targeted killings across borders and the nature of the al Qaeda threat since 9/11 led the US to re-think its interpretation of the law. All three factors mean the US is now fighting in ways not previously possible.

Ordering drone strikes

The targeted killing programme using drones expanded in the last year of Bush’s presidency and then massively under Obama, (see here) with ten times more drone strikes carried out in Pakistan, Somalia and Yemen, than under Bush. Indeed, more strikes were authorised in Obama’s first year in office than in his predecessor’s entire presidency. The surge was driven by a huge increase in attacks on suspected militants in the ‘safe havens’ of Pakistan’s Federally Administered Tribal Areas (FATA). The New York Times reported in 2012 that President Obama personally authorised all strikes in Yemen and Somalia and “the more complex and risky ones” in Pakistan (about a third of the total). The Washington Post reported in the same year that the director of the CIA signed off strikes in Pakistan (see here). The Post also detailed how targeting lists were built up and decisions to kill people made. See also reporting on this from The Guardian and The Intercept).

Both the CIA and the military, in particular the Joint Special Operations Command (JSOC), well-known in Afghanistan for being the key player in kill or capture operations there, are involved in targeted killing operations using drones. Different legislation governs the CIA and the military, which gives the CIA extensive license to run secret programmes and legally restricts the government from providing information about them (although the military has scarcely been more open about what it does). There are particular concerns about the CIA’s lack of accountability and transparency. (See a legal analysis of the dangers of the CIA conducting military operations here and specifically in Afghanistan, here).

There have been reports of ‘turf fighting’ between the Pentagon and CIA over who should control the programme, but mainly reports of a high degree of operational cooperation, for example in kill/capture operations in Yemen, Iraq and cross-border strikes from Afghanistan into Pakistan, (4) and of air force pilots flying drones on behalf of the CIA. Last year, a general shift from the CIA to JSOC carrying out drone strikes was reported. That could mean the US government wants to be less secretive about its drones. However, as Robert Chesney of the US law and national security website, Lawfare, has said, in terms of practicalities, it may make little difference: although the military may now be giving the final order, subject to presidential approval where required, the operations themselves may still be hybrid, involving both military and CIA surveillance and intelligence.

For many years, the US neither confirmed or denied its targeted killing programme. Then, in 2013, Obama published rules governing the use of lethal force in counterterrorism operations outside the US and “outside areas of active hostilities,”(see here) defined in 2016 (see here) as “not Afghanistan, Iraq, Syria, and certain portions of Libya.” (Pakistan appears possibly not to be covered by this guidance or just not (see here) by the ‘imminent threat’ pre-condition for attack, mentioned below.

Lethal force, the guidance says, can only be used against “a target which poses a continuing, imminent threat to U.S. persons.” If force is used in foreign territories, “international legal principles, including respect for sovereignty and the law of armed conflict, impose important constraints.” There must be “near certainty” that the terrorist target is present, as well as near certainty that non-combatants are not, capture (which is preferable) is not possible and there are no other alternatives for dealing with the threat and the government of the country “cannot or will not effectively address the threat.” (Given that much of the legal debate over the US targeted killings programme is whether it is covered by the Laws of Armed Conflict or International Human Rights Law, it is interesting that the Obama guidance draws on both.)

Drones in Pakistan

Pakistan’s Federally Administered Tribal Areas (FATA) have seen the most drone strikes outside of Afghanistan, reports the Bureau of Investigative Journalism, with the first coming in 2004. The Bureau has calculated that more than 400 strikes aimed at the Pakistani Taleban (TTP), al Qaeda and other foreign jihadist groups and the Afghan Taleban have been launched. (5) (See a mapping of the strikes here). Strikes increased in frequency in 2008 and peaked in 2010. The author of “Sudden Justice: America’s Secret Drone Wars”, Chris Woods, has argued that the increase was driven by the US military in Afghanistan wanting to hit insurgent safe havens across the border. The many strikes on the TTP which were not a threat to the US in Afghanistan might have been part of a quid pro quo deal between the CIA and Islamabad, ie the US struck the TTP in return for Pakistan turning a blind eye to the US killing those threatening American soldiers in Afghanistan.

The most recent reported attack in Pakistan was on the then Taleban leader, Mullah Akhund Mansur in Baluchistan in May 2016 (see AAN reporting here). Exceptionally, according to the Bureau of Investigative Journalism, this was claimed by the US military. Otherwise, the CIA has been in charge of the Pakistan programme, the secrecy surrounding its actions helping Islamabad pretend it was hostile to the strikes. However, as the International Crisis Group said in a 2013 report, “Ample evidence exists of tacit Pakistani consent and active cooperation with the drone program, contradicting the official posture that it violates the country’s sovereignty.” It said that President Musharraf, after 2001, had permitted a substantial CIA presence in at least two airbases, Shamsi in southern Balochistan and Shahbaz in Sindh’s Jacobabad district, for intelligence gathering and collaboration. “Both were used to gather intelligence for drone strikes,” it said, “and possibly even to conduct them.” That sort of cooperation ended when a NATO air strike in November 2011 on the border killed 24 Pakistani soldiers. Crisis Group said:

Pakistan’s attitude towards drones borders on the schizophrenic. Rather than inherently opposing the strikes, its leadership, in particular its military, seeks greater control over target selection. This is often to punish enemies, but sometimes, allegedly, to protect militants who enjoy good relations with, or support from, the military – leaders of the Haqqani network, for example, or some Pakistani Taliban groups with whom the military has made peace deals.

Drones in Yemen

The first US targeted killing using a drone outside Afghanistan came in Yemen, in 2002, with a strike on those believed to have attacked the USS Cole in Aden harbour in 2000 (see here). It began to fly drones consistently into Yemen from 2009 (see here). The Bureau of Investigative Journalism reports between 145 and 165 confirmed drone strikes on Yemen with about one hundred others possible but not confirmed. (6) The most recent drone strike was on 30 January 2017. On 29 January, another a capture operation led by JSOC, with commandos also from the United Arab Emirates, targeted a commander with Al Qaeda in the Arabian Peninsula (AQAP); it reportedly resulted not only in the deaths of 14 men claimed by the AQAP as their fighters, but also more than twenty civilians. These reportedly included nine children under the age of 13. These two operations were President Trump’s first ordered targeted killing by drone and his first ‘kill or capture’ operation.

Both the JSOC and CIA have carried out drone strikes in Yemen, operating from Camp Lemonnier in Djibouti and a base in Saudi Arabia (location unknown). The US has also carried out air strikes using conventional aircraft and Cruise missiles.
Drones in Somalia

 The US has carried out targeted killings of suspected fighters with al-Shabab since 2011, although al-Shabab was only officially designated an ‘associated force’ of al Qaeda in November 2016, a shoring up of the legal basis for strikes under domestic US legislation brought in after 9/11 (see here). The Bureau of Investigative Journalism reports that JSOC is the lead agency, with its own fleet of armed Reaper drones flying from various bases in the region. “Elite troops,” reports the Bureau of Investigative Journalism, “are routinely deployed on the ground for surveillance, reconnaissance, and assault and capture operations. Since June 2011, the US has reportedly carried out 32 to 36 drone strikes, (7) most recently on 7 January 2017, a “self-defense strike” a press release said, carried out “in coordination with the Federal Government of Somalia,” by Somali partner forces, African Union Mission in Somalia (AMISOM) forces and US advisors. The strike came, it said “during a counterterrorism operation to disrupt al-Shabaab,” after “the combined partner forces observed al-Shabaab fighters threatening their safety and security.” No-one was killed.

The impact of drones on civilians

One thing to stress at the outset is that US military operations in Pakistan, Yemen and Somalia are far less transparent or accountable than its operations in Afghanistan. The US war in Afghanistan is overt and there is a military presence in country which means citizens, MPs, the UN and others can speak directly to officers. The media, both Afghan and international, is comparatively strong and UNAMA, with its Security Council ‘protection of civilians’ mandate, has built up a reliable, nationwide monitoring operation and advocates effectively on behalf of civilians. Finding out about drone strikes in other countries is far more difficult, although a number of studies have tried to determine the impact on civilians, including whether the Obama guidance is being followed.

That the US is underreporting the numbers of civilian casualties in drone strikes appears to be clear across the board. The Bureau of Investigative Reporting contrasted the US estimate of between 64 and 116 killed in countries other than Afghanistan between January 2009 and the end of 2015 with the number it had recorded – 380 to 801, ie six times lower. In Pakistan and Yemen, a 2016 Open Societies Foundation (OSF) report on mitigating civilian casualties found that the United States had failed to publicly acknowledge a single instance of civilian casualties over 400 and 120 strikes, respectively. Human rights and media have, however, documented “credible claims of civilian harm” and in Pakistan, these have been “corroborated by leaked internal Pakistani government documents.”

A 2015 Open Societies Foundation report on Yemen which investigated nine targeted killings (seven by drones and two by other aircraft) found that civilians had been killed and injured in all of them, leading it to question the US’s assertion that strikes are not conducted unless there is “near-certainty” that civilians are not present. It also looked at whether the Obama guidance had been followed in other instances. The study questioned whether the US used an overbroad definition of combatant to mask the number of civilians killed, in particular using proximity to a target as a proxy for determining someone’s combatant status. (8) It found that, in two of the strikes, the militants targeted could have been detained by the Yemeni government (ie lethal force was not necessary). Finally, it found that in none of the nine strikes documented “did the U.S. or the
Yemeni government state that the individuals targeted and killed had posed
a continuing and imminent threat to the American people.”

In its use of drones in Yemen, Somalia and Pakistan, the US has been accused of expanding the category of ‘combatants’, for example, assuming men in proximity to the target are fighters or that all ‘military-age’ men are fighters, (it denies both accusations), not taking proper precautions to safeguard civilians and having a programme that lacks transparency and proper investigations into who is killed: all of this ends, critics say, in civilians being killed and injured.

As has been seen in Afghanistan, there are particular dangers with targeted killings if people are killed not in response to hostile action, but based on intelligence. If the intelligence is wrong, airstrikes end up killing civilians (see analysis here). This may be especially problematic when people are attacked based solely on their ‘patterns of life’ which indicate to US targeters that they are combatants (these are called ‘signature strikes’). Some evidence for this has come from Pakistan where, the OSF civilian casualties study reported, statements by US officials and media reporting suggested that stricter rules on targeting and a reduction in ‘signature strikes’ had resulted in a marked decrease in the number of civilians killed in drones strikes (from an average of five civilians killed in each of 120 strikes in 2010, to one per strike in 2012, and to less than one per strike in 2013-15). (9)

The wider picture

The US targeted killing programme cannot be judged solely in terms of dead civilians, or even dead militants. Drones do not operate in a vacuum. Pakistan, Yemen and Somalia all have a variety of armed actors operating on their territories, ranging from militant groups and government forces to African peace-keepers in Somalia, and Saudi and other forces in Yemen (all of whom tend to be far less careful about civilians than the US military, and far less transparent). That plethora of armed actors means that local civilians have other concerns than just US drones. Moreover, US choices of local allies and the compromises this involves also have consequences.

Several studies on Pakistan have tried to assess this ‘wider picture’. Neither the US or Pakistani governments are open with information and travel by independent researchers and journalists to the tribal areas is hazardous, so getting reliable information is tough. “Fearing retaliation from the militants or the military, respondents choose their words carefully,” International Crisis Group reported in 2013. It thought it impossible to gauge the real views of local civilians. Some studies have tried, however, and reached very different conclusions.

In 2012, the Stanford and New York University Schools of Law (see here) reported that drones were counterproductive, imposing a great strain on civilians living beneath them and leading to increased recruitment to militant groups:

Drones hover twenty-four hours a day over communities in northwest Pakistan, striking homes, vehicles, and public spaces without warning. Their presence terrorizes men, women, and children, giving rise to anxiety and psychological trauma among civilian communities. Those living under drones have to face the constant worry that a deadly strike may be fired at any moment, and the knowledge that they are powerless to protect themselves. 

A 2016 study by Aqil Shah of the University of Oklahoma, however, found that hostility to drones increases the further you go from the ‘battlefield’. Attitudes towards them, he said, were far more positive in the tribal areas and most favourable in the area which had seen the highest number of drone strikes, North Waziristan:

In fact, 79 percent of the respondents [from North Waziristan] endorsed drones. In sharp contrast to claims about the significant civilian death toll from drone strikes, 64 percent, including several living in villages close to strike locations, believed that drone strikes accurately targeted militants. While many interviewees did specifically point to pre-2013 “signature strikes,” which targeted groups of men based on behavior patterns rather than individual identity, as the cause of occasionally high fatalities, 56 percent believed drones seldom killed non-militants.

 Locals, Shah found, were much more frightened of local militants and said the drones were more accurate than the Pakistani military’s ground and air offensives. He found no evidence that drones led to greater recruitment to militant groups.

The US believes its operations in the Pakistani tribal areas have been successful; they have “disrupted terrorist plots and reduced the original Qaeda organization along the Afghanistan-Pakistan border to a shell of its former self.” The OSF civilian casualties report, while accepting this is the case, argues that the situation is not so simple:

“Core” al Qaeda leadership may have been severely diminished, but the United States has paid a high political price as a result, arguably undermining its longer-term interests and strategic objectives in Pakistan. Domestic observers have raised concerns that the space for rational domestic debate around counter-terrorism and conflict resolution has shrunk beneath the dominant anti-U.S., anti-drone narrative, which has been capitalized on by religious conservatives.

Similar complexities are seen in Yemen where the US has not only targeted AQAP, but also backed Saudi Arabia and its coalition fighting Houthi rebels. It has provided intelligence, air-to-air refuelling and arms sales to Riyadh. The Saudi-led air campaign has been characterised by multiple, egregious targeting of civilians, including strikes on hospitals, schools and wedding parties; the UN estimates it has caused twice as many casualties as all other warring parties. In the face of Saudi and US strikes, says OSF, AQAP has managed to re-brand itself as a nationalist, pro-poor populist movement: “Victims and experts have questioned whether U.S. drone strikes, and subsequently its seemingly uncritical support to Saudi Arabia have also strengthened the hand of al-Qaeda, ISIL (Daesh), and other militant groups, while undermining the credibility and interests of the United States.”

The picture in places like Pakistan and Yemen is complicated. At the very least, it can be said that targeted killings always have wider consequences: they can stir up domestic support for rebels and strengthen the power of conservatives, and US air power can also be manipulated by governments to target their own, domestic enemies. Drone strikes may also mean non-military options – better civil and political rights in FATA, for example – can be ignored. However, all claims and assumptions need to be scrutinised: some of the criticism made in Pakistan, for example, asserting that drone strikes encourage locals to join armed groups seem not to be true, although the strikes may have encouraged militancy beyond FATA.

The future of drones in Afghanistan and beyond

Many people feel an instinctive unease about armed drones. Human Rights Watch’s John Sifton believes this is because they enable “the most intimate form of violence – the targeted killing of a specific person,” while being “the least intimate of weapons,” mixing “everyday violence” with “all the alienation of intercontinental ballistic missiles.” Nevertheless, in America’s wake, other countries are following. Armed drones are fast becoming a standard feature of many arsenals. Those already making or acquiring them include Israel, Russia, Turkey, China, India, Iran, Britain and France (see here), Iraq, Nigeria and Pakistan, with China (see here) as the main seller. (10) The primary constraint on their use now seems to be the capability to deal with huge streams of data (unless you just attack what you can see). Up till now, it has largely been the US arguing that it was legal for it to kill people using drones outside traditional battlefields. It is now possible for other countries to do the same: will Washington be as sanguine about Russia, Iran or China carrying out targeted killings in the way it now does?

Apart from the lowered barriers to initiating hostilities across borders, the other obvious concern coming from the research on the US drone programme is over accountability and transparency. This last problem is amplified when those carrying out the killings are secretive (JSOC) or covert (the CIA). Having said that, however, compared to most other countries and non-state armed groups, the US is still relatively careful and transparent when it comes to civilian casualties. (11)

As to Afghanistan, a US ‘drones-mainly’ strategy there as seen in Pakistan’s FATA and elsewhere, is not on the cards in the near future. However, given the seemingly never-ending nature of the war in Afghanistan and the fact that it remains a place attractive to foreign jihadists with internationalist aims, that could change. A future US Afghanistan mission limited to counterterrorism operations conducted mainly from the skies is not impossible to imagine.

Edited by Sari Kouvo and Borhan Osman

 

 

(1) Targeted killings have proved to be one of the least controversial of practices and reinterpretation of the law carried out by the Bush administration in the war on terror. Others, including torturing and rendering security detainees and denying them the protections of common article 3 of the Geneva Conventions were thrown out by the courts or by Obama, but may again make a come back under President Trump.

(2) Heather Brandon, writing on the Lawfare website, said that the US accepts the ‘Tadic formulation’ which sets out the intensity which violence must reach for there to be a ‘non-international armed conflict’ (the legal term for a conflict that does not involve two or more states). In the Dusko Tadic case at the International Criminal Tribunal for the Former Yugoslavia (ICTY) ‘non-international armed conflicts’ were defined as requiring “protracted armed violence” between either government forces and sufficiently organized non-state groups or between two or more of these organized non-state groups.”

(3) Legal papers looking at targeted killings, including with drones, include:

Gabriella Blum and Philip Heymann, “Law and Policy of Targeted Killing”, Harvard National Security Journey, Volume 1—June 27, 2010.

Philip Alston “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions: Addendum
Study on targeted killings”, Presented to the United Nations Human Rights Council, A/HRC/14/24/Add.6, 28 May 2010.

Jelena Pejic
“Extraterritorial targeting by means of armed drones: Some legal implications”, International Review of the Red Cross, 2015, 1-40.

HCJ 769/02 Public Comm. Against Torture in Israel v. Gov’t of Israel (Targeted Killings Case), 2005.

Heather Brandon “Will Obama’s Targeted Killing Policy Say What “Areas of Active Hostilities” Means?” Lawfare, 5 May 2016.

(4) The Washington Post’s 2011 article reported:

Their [CIA officials, special forces and contractors, all under CIA command] activities occupy an expanding netherworld between intelligence and military operations. Sometimes their missions are considered military “preparation of the battlefield,” and others fall under covert findings obtained by the CIA. As a result, congressional intelligence and armed services committees rarely get a comprehensive view.

Hybrid units called “omega” or “cross matrix” teams have operated in Afghanistan, Iraq and Yemen, according to senior U.S. military officials. Those employed in Afghanistan were “mostly designed against specific high-value targets with the intent of looking across the border” into Pakistan, said a former senior U.S. military official involved in Special Operations missions. They wore civilian clothes and traveled in Toyota Hilux trucks rather than military vehicles.

(5) The Bureau’s figures for Pakistan are:

Total strikes: 424

Obama strikes: 373

Total killed: 2,499-4,001

Civilians killed: 424-966

Children killed: 172-207,
Injured: 1,161-1,744

(6) The Bureau’s figures for Yemen are:

Total confirmed strikes 145-165

Total killed: 601-871

Civilians killed: 65-101

Children killed: 8-9
Injured: 100-234

Possible extra drone strikes: 90-107

Total killed: 357-509

Civilians killed: 26-61

Children killed: 6-9

Injured: 82-109

Other covert operations: 21-84

Total killed: 234-509

Civilians killed: 78-127

Children killed: 28-36

Injured: 47-136

(7) The Bureau’s figures for Somalia are:

Drone strikes: 32-36

Total killed: 242-418
Civilians killed: 3-12

Children killed: 0-2

Injured: 5-24

Other covert operations:

10-14
Total killed: 59-160

Civilians killed: 7-47

Children killed: 0-2

Injured: 11-21

(8) AAN’s 2010 investigation into a targeted killing in Takhar province of Afghanistan found that, as well as intelligence failures leading to a civilian being mistaken for a commander and killed, his companions were all also assumed to be combatants as well, ie proximity was used as a proxy for distinguishing civilian from combatant. In this case, ten civilians were killed, all campaigners in parliamentary elections.

(9) In Yemen, a reverse trend was seen: reported civilian casualties from U.S. strikes, said OSF, declined in 2011-2012; then in 2013-2014, the rate of civilian casualties per operation rose by five per cent.

(10) CNBC reported that China had moved into the market strongly because, unlike the US, it is not a signatory to the 1987 Missile Technology Control Regime, which requires signatory states to “apply a “strong presumption of denial” to exports of unmanned vehicles capable of carrying a 1,100-pound payload more than 185 miles.” 

(11) See, for example, data from Physicians for Human Rights on attacks on medical facilities in Syria, largely by Syrian state and Russian forces, and reports on attacks on civilian targets, including medical facilities in Yemen, published by Physicians for Human Rights (see here) and Médecins Sans Frontières (see here).