In 2021 the world has witnessed the abject failure of international organizations to curtail even the most grave human rights violations, including war crimes, crimes against humanity and genocide (“atrocity crimes”). The situation in Afghanistan is one case in point.
In countries around the globe, international human rights law is routinely violated with impunity. Many are wondering what “human rights” mean when politicians and diplomats toss out the term with ease while remaining reckless or complicit in the face of human rights violations and atrocities.
Canada must act urgently to match words with actions
There increasingly grave concerns about human rights in Afghanistan, including a humanitarian, and displacement catastrophe. In the wake of the Taliban’s unlawful takeover of the country by force on 15 August 2021, the harried evacuation of diplomats and military-affiliated persons left behind thousands of at-risk civilians seeking safety outside the country. Canadian citizens, as well as Afghans with strong Canadian connections, are among those still stranded.
People in Canadian civil society have been working day and night since mid-August conducting international advocacy and rallying networks of academics, lawyers, and others to try to assist those in danger in Afghanistan. Canadian parliamentarians, academics, lawyers and human rights organizations have received desperate calls for help from people in Afghanistan or their relatives in Canada. For too many, official Canadian channels of assistance have been opaque, confusing, and ineffective.
Canadian human rights lawyers Alex Neve and Djawid Taheri wrote on 31 August 2021 that Canadians seeking consular protection or asylum have found that their “e-mails, phone calls and pleas for assistance across three government departments, ministers’ offices and MPs went unanswered or elicited unhelpful boilerplate replies. With no overall point of high-level coordination, it was never clear who best to approach.”
Those who have advocated implementation of international human rights and the rule of law are in particular danger in Afghanistan. Judges, prosecutors, lawyers, human rights defenders, parliamentarians, and journalists, particularly women, are among those at risk. Many have been trying to leave the country. Those who have succeeded tell of harrowing escapes. Those still in Afghanistan are either in hiding or move from safe house to safe house and report being terrorized by threats, attacks, or house-to-house searches by the Taliban. The LGBT community is at particular risk
Also facing grave risks are long-persecuted minorities, including Hazaras, Tajiks, and Uzbeks, as well as religious minorities such as Shia Muslims, Christians, Bahai, Sikhs, and Hindus. The Taliban’s military advancement towards the mid-August takeover included a massacre of Shia Hazara men. There are reports of telephone threats against members of religious minorities. There are increasing worries about destruction of evidence of violations, including fears for the safety of victim witnesses and those who have amassed archives of information about atrocity crimes over the past two decades.
In September, Taliban security forces have used live ammunition, batons, and whips to disperse peaceful protests of women and human rights defenders, and several men and boys have been shot dead. Taliban authorities have arbitrarily detained and severely beaten several male journalists covering protests. There are reports of reprisal killings of persons who worked with previous Afghan administrations.
Canada’s actions to protect and rescue judges, lawyers, parliamentarians, journalists, and other human rights defenders must be escalated to match its official policy commitments to recognize and support “the vital work of human rights defenders” and to implement its recently vaunted special refugee stream for human rights defenders at risk. The refugee stream is of no use to people who cannot safely get to the border and obtain the required UN refugee status.
Canadian authorities need to dramatically improve their response to save lives of at-risk Canadians and Afghans alike. Canada, as one of the parties to the 20-year armed conflict, must step up in a more coherent and vigorous manner to ensure practical assistance to women and men in Afghanistan who have struggled to establish international human rights and the rule of law in a war fraught with international illegality throughout. War crimes have been alleged against parties to the conflict, including the Taliban, the Afghan National Security Forces, and the Northern Alliance in Afghanistan, as well as the United States (US), Canada, Australia, the United Kingdom, and others.
The Canadian government should actively join those who are insisting on urgent action to establish an independent international mechanism to protect and preserve evidence of past, present, and future atrocity crimes and human rights violations to use in fair trials of suspected perpetrators.
Weak resolutions by United Nations Security Council and Human Rights Council
The UN Secretary General in September 2020 reiterated the refrain that the UN “is only as strong as its members’ commitment to its ideals and each other.” In 2021, responses of the UN Security Council (UNSC) and UN Human Rights Council (HRC) to human rights crises in Afghanistan and elsewhere, including Myanmar and China, have been alarmingly weak.
The UNSC’s briefing on 6 August 2021 and its Special Session on 16 August resulted in nothing more than words in a press release calling for “inclusive negotiations” with “full, equal and meaningful participation of women,” and adherence “to international norms and standards on human rights. So far, no human rights improvements have resulted other than unconvincing statements by Taliban leaders that they intend to uphold women’s rights, although only as interpreted by their version of Islamic law. Such provisos do not conform to Afghanistan’s obligations under international human rights treaties. And the Taliban’s violent reprisals and clampdowns on women’s participation and public dissent contradict their claims.
An emergency special session of the UN Human Rights Council (HRC) on 24 August 2021 resulted in a resolution so insipid that it was termed “more of an insult to the Afghan people than a response to the crisis.” The resolution ignored numerous recommendations calling for a safe humanitarian corridor or an independent investigative mechanism to collect and preserve evidence of human rights violations in Afghanistan. Those urging an investigative mechanism included Ms. Shaharzad Akbar, the Chair of Afghanistan’s Independent Human Rights Commission; Ms Michelle Bachelet, the UN High Commissioner for Human Rights; the Coordination Committee for dozens of independent UN human rights experts; and non-governmental organizations (NGOs) including Amnesty International, Human Rights Watch, the International Commission of Jurists, Lawyers’ Rights Watch Canada (LRWC), the International Bar Association, and The Law Society of England and Wales.
Countries’ statements at the HRC Special Session were a repetitive chorus of broad generalities calling for respect for human rights. Canada’s statement used the passive voice to deplore “the events that have unfolded over the past several weeks in Afghanistan” and express “dismay at the increasingly unpredictable security environment, which is causing many to flee.” Canada called for “respect for human rights, fundamental freedoms, and gender equality” and promised to resettle 20,000 refugees, support UN human rights programs, and provide humanitarian assistance.
The concluding statement of the European Union (EU) just prior to the adoption of the resolution expressed strong “regrets” about the weakness of the resolution saying that the “pen-holder” (meaning Pakistan) refused to consider inclusion of an investigative mechanism. Pakistan has been a consistent and long-time supporter of the Taliban. The EU statement lamented that if the members of the Human Rights Council “cannot agree at least on condemning the human rights abuses and violations, if we are not willing to call out the parties involved so that the message that we are watching them is clear, then what is the purpose of this resolution?”
Amnesty International and the International Commission of Jurists rightly called the HRC resolution “shameful.” Calls for effective measures to prevent destruction of records and other evidence of war crimes and atrocities are increasingly urgent. NGOs, including LRWC, are again calling for an independent investigative mechanism during the September-October session of the HRC.
On 30 August 2021 the UN Security Council adopted a consensus resolution that “called on parties to adhere to international norms and standards on human rights.” But the “thin text” of the resolution failed to establish a safe zone. It did not set out consequences should the Taliban flout the resolution’s “expectation” that it will live up to its stated commitment to allow people’s right to exit the country. Security Council Permanent members China and Russia, both of whom hold veto power, abstained from voting on the resolution.
Reasons for the weakness of international organizations’ resolutions
Why have international organizations been so ineffectual? A key reason is that resolutions of UN political bodies are only as strong as their member States are willing to make them.
The Security Council is the only UN body with the power to make resolutions that are binding at international law. The veto power of Permanent Members, including China and Russia, has precluded meaningful action to prevent or ensure accountability for atrocities, leading commentators to declare the Security Council as not “fit for purpose.”
The UN Human Rights Council (HRC) has no permanent members, and no State has veto power. HRC members are elected by the General Assembly. Current members include China, Russia, the Philippines, and other serious human rights violators.
The HRC is often hamstrung by its member States’ practice of seeking consensus. Since the 47-State body has no power to adopt resolutions with legally-binding teeth, consensus is seen to lend strength-in-numbers to its resolutions. The perceived need for consensus has resulted in watered-down resolutions not only on Afghanistan but also on Myanmar (February and June 2021) and the Philippines (October 2020).
The HRC has so far avoided making resolutions to address China’s massive human rights violations despite calls by UN independent human rights experts for “decisive measures” to address a range of grave concerns, from “collective repression of the population, especially religious and ethnic minorities, in Xinjiang and Tibet, to the detention of lawyers and prosecution and disappearances of human rights defenders across the country.” China manipulates UN procedures in attempts to reshape human rights norms into its own image.
Some HRC member States that enjoy better human rights reputations have political and economic interests that lead to human rights double-speak and little meaningful action. States that are not members, such as the US, use their economic and diplomatic clout to weaken international interventions they do not like. In 2020, US diplomats succeeded in diluting the HRC resolution on systemic racism and police violence after the murder of George Floyd. From September 2018 to January 2021, the US engaged in active threats and sanctions against then ICC Prosecutor, Ms. Fatou Bensouda, because of her investigation into US war crimes in Afghanistan.
HRC resolutions are often put forward by non-members. In the case of Afghanistan, Pakistan, a non-member, put forward the 24 August resolution and led the drafting on behalf of the Organization of Islamic Cooperation (OIC).
LRWC is among the NGOs that have advocated for measures to better ensure that States elected to the HRC fulfil the UN requirement that all HRC members uphold the “highest standards in the promotion and protection of human rights.”
Replace cynicism about human rights with human rights education and solidarity
One could be forgiven for being cynical about the efficacy of human rights treaties and instruments when States are duplicitous or fail to back up their promises with action. Why bother, some ask? The term “human rights” is a powerful one, but it becomes cheap and ineffective when States and non-state actors talk about rights but do not act to uphold them at home and in international bodies.
Lawyers know that procedures and mechanisms to access the right to remedies for human rights violations are essential for their enforcement. Domestic and international human rights mechanisms are too often weak and disappointing. Critics have even portended the “end times” of human rights. Some have complained that human rights are the latest version of the “civilizing mission” of Western colonization, and that “in the hands of Western governments,” the “usefulness of rights comes to an end when they lose their aim of resisting injustice.”
To anyone inclined to join the critics it seems important to say, in the words of human rights professor James Silk, that:
By focusing largely on the institutions, legal processes, and NGOs based in the Global North, and on the professional actors who occupy and use these institutions and mechanisms, both critics and advocates have tended to neglect the central, historic path of the use of human rights. The greatest value of international human rights law has never been in its formal use as law. It has never been in the international, regional and national institutions and processes devoted to human rights. Its primary value has been as a language for people, communities, and social and political movements to use to demand respect for their human rights and accountability for those who abuse them” [emphasis added].
Human rights’ power for such demands has derived partly from the validity they acquired as law, widely recognized and adopted by the nations and people of the world, whether or not one believes their content has achieved universality. They are no longer just contestable moral claims.
People need to know their rights to claim them. Defenders in safer places in the world also need to defer to the wisdom and expertise of defenders at risk. Alex Neve recently put it this way, urging us to “listen for and amplify” the voices of those most at risk. “There must be solidarity at every turn.”
Afghanistan is just one of a long list of places where human rights defenders are in peril.
Advocates in Afghanistan, Myanmar, China, Hong Kong, the Philippines, and elsewhere are calling for our solidarity. Canadian lawyers and legal scholars are needed to join the network of those seeking to amplify the voices of colleagues seeking to uphold internationally protected rights in Afghanistan and around the world.