Dr Erica Harper Addresses Afghanistan's Complex Situation and the Role of Investigations at the UN Human Rights Council

19 October 2023

During the latest United Nations Human Rights Council (HRC) session, our Head of Research and Policy Studies Dr Erica Harper presented at a side event the situation in Afghanistan in light of new reports from Amnesty International and the United Nations Assistance Mission in Afghanistan (UNAMA). Her address covered the classification of current armed conflicts in the country, accountability procedures, and the potential impact of investigative efforts.

Dr Harper emphasized the critical importance, within current policy reporting, of connecting the situation on the ground to its legal classification, and the relevant applicable law. She highlighted that Afghanistan is currently experiencing three distinct armed conflicts: a non-international armed conflict (NIAC) involving the Taliban and the National Resistance Front (comprised of former government military and Northern Alliance members) another NIAC between the Taliban and the Islamic State-Khorasan province, and an international armed conflict between the Taliban and Pakistan.

Dr Harper also noted that from an IHL perspective – which takes a contextually pragmatic position – the Taliban is considered Afghanistan’s de facto government, irrespective of its recognition by other states, legitimacy or how it came to power. Consequently, both IHL and IHRL are applicable bodies of law and must be respected by the Taliban.

Regarding the violations documented in the recent reports by UNAMA and Amnesty International, Dr Harper underlined that in the context of the NIAC, there may be circumstances where the loss of life is legally compliant under IHL, however, that arbitrary execution, enforced disappearances and torture are never permissible.

When asked about justice pathways, Dr Harper began by emphasizing the unsettling nature of discussing accountability while violations are ongoing. She stressed that the primary focus should remain on preventing and mitigating the loss of life and other rights violations.

However, Dr Harper acknowledged the imperfections in today’s multilateral mechanisms designed to prevent and address international peace and security breakdowns and provide justice for violations during such crises. Given this reality, she asserted the need to utilize all available tools. Moreover, in cases where a UN Security Council intervention is unfeasible and diplomatic efforts have faltered, investigations should be regarded not only as a path to accountability but also as a means to encourage belligerents to reflect on the legality of their actions.

Dr Harper underscored that when discussing investigations, quality surpasses quantity in importance. She pointed to the resumption of the International Criminal Court's criminal investigation and its potential inclusion of post-2021 crimes in the prosecutorial strategy. Additionally, she acknowledged the significant work being carried out by UNAMA. She noted that it is within the competency of the HRC to establish an investigatory mechanism, however, even here, in a more representative body, decision-making can be complex and divisive, as recently demonstrated in debates around extending the mandate of the investigation mission in Ethiopia.

Overall, Dr Harper emphasized the necessity of providing investigators with a mandate of sufficient duration and adequate resources to effectively fulfil their role. This is a challenge faced by HRC-mandated commissions of inquiry and fact-finding missions that require attention for the HRC to effectively carry out its dual role of prevention and promotion of accountability.