While the diplomatic and military consequences of the US withdrawal from Afghanistan continue to be felt, the true human cost remains immeasurable. Months after the last US forces left Kabul, leaving the country under Taliban rule, many are being persecuted for upholding the very democratic ideals that Washington and its allies have spent two decades promoting and funding, and independent lawyers of the country are among these vulnerable groups.
The Afghanistan Independent Bar Association (AIBA) was established in 2008 with the help of the International Bar Association (IBA), the London-based organization that includes 190 bars from countries around the world. Besides developing a standardized pathway to the professional practice of law in Afghanistan, one of the main objectives in establishing AIBA was to uphold values such as the rule of law and equal access to educational and professional opportunities – lofty goals in a country where only a few years ago women were not even allowed to leave their homes freely.
In November, the Afghan Ministry of Justice announced its intention to absorb AIBA, placing it squarely under Taliban control. Soon after, the armed forces stormed and took over the AIBA headquarters. A group of members of the beleaguered organization who had remained in the country after the US withdrawal held a press conference to raise awareness of the imperative for an independent legal profession. As they prepared to broadcast live from a hotel in Kabul, gunmen surrounded the building, forcing attendees to flee. Threatened with arrest and fearing violence against themselves and their families, some of these lawyers continue to hide weeks later.
Amid the fallout from the decision to strip the Afghan legal profession of its independence, the IBA has sounded the alarmreaching out to the highest levels of the United Nations for support for the country’s beleaguered lawyers.
Ingrid Burke Friedman, editor of JURIST Features, spoke with IBA Executive Director Dr. Mark Ellis about her organization’s response to the current crisis, as well as her hope that as the international community grapples with the Afghan crisis, the women and men on the front lines of Afghanistan’s nascent independent legal profession will not be forgotten.
LEGAL: What role did the International Bar Association play in the creation of the Afghanistan Independent Bar Association in 2008?
Ellis: We have been involved from the start as partners, offering a range of programs, assistance and financial support, to help Afghan lawyers establish and run their own bar associations. …
Over time, the relationship has evolved from a partnership to the kind of relationship the IBA has with its nearly 200 other member associations; and the reason it was important was because it indicated that the bar had become exactly what it wanted to become – an independent bar based on the principles of justice and the international principles of the rule of law, and on supporting women’s rights and human rights in general.
LEGAL: What was your reaction when you learned that the Taliban-controlled Ministry of Justice had decided to take control of AIBA?
Ellis: [When] the Department of Justice stepped in and decided they were going to incorporate the bar association into their domain…I knew the [AIBA] that we had supported and with whom we had associated no longer existed. Then there was the announcement that the association would no longer be involved in the licensing of lawyers – that this responsibility would also be taken over by the Ministry of Justice. This suggested that the organization had lost all independence.
JURIST: On November 23, a few days after the AIBA decree, armed Taliban control taken by force from AIBA Headquarters. In the aftermath of the takeover, what are some of your main concerns?
Ellis: A major concern is that the Department of Justice has obtained the AIBA database. It was a huge red flag because it includes a lot of sensitive information that is now in the possession of the Taliban. There’s a lot of information in the database and the Taliban have it all. [It] contains confidential information about the work of these lawyers, which could result in a death sentence.
Another concern is that the Taliban are also in possession of the AIBA bank account, along with all the money in it. Some of the AIBA executives currently in exile are pushing to regain control of the database and bank account, but of course the chances of that happening are slim.
LEGAL: What are IBA’s strategies to mitigate some of the damage caused by the seizure of the database and bank accounts by the Taliban?
Ellis: [Following the MOJ decision to take control over the AIBA], the IBA has decided that we address the United Nations, directly to the Secretary General, stating that the takeover of AIBA by the Taliban clearly violates international principles. The most important would be the UN principles on the role of lawyers… [which] require that legal professionals can operate without any intimidation. They should not be harassed or interfered with in any way. They must be independent. All of these protections are now being violated by the Taliban. We have defined our position on these basic principles because they are most relevant to the United Nations, to the International Bar Association and to the legal profession as a whole.
The reason we contacted the UN is because that is the entity that will engage directly with the Taliban. And any concessions that will be made will be through the UN. We have now requested that the UN bring this issue to the forefront of any discussion with the Taliban to ensure that the database and bank account issues are resolved, and not to compromise on these issues. , and to use them as leverage on the Taliban in case the UN decides to support them in certain legal areas.
We also plan to contact governments and bar associations in the region that we believe will have interactions with the Taliban, whether through official recognition or engagement with them. We will ask these organizations to speak on these issues as well.
I’m not naïve enough to think the Taliban will rescind their order that the bar will no longer be independent. It’s not going to happen. But there might be enough pressure to at least return the AIBA database and perhaps return the financial resources. I’m sure there will be pressure from some organizations to retain an independent legal profession. But unfortunately, these efforts are unlikely to be successful given the reality on the ground.
LAWYER: In addition to sounding the alarm to the UN Secretary-General and working to educate lawyers facing persecution, we understand that the IBA has helped facilitate evacuations. Can you tell us more about these efforts and how you plan to work with evacuees in the future?
Ellis: We managed to help about nine people and their families to evacuate. This core group included women judges, human rights activists and other particularly vulnerable people. The IBA Human Rights Institute evacuated more than 100 female judges. They have focused aggressively on this group due to fears of Taliban reprisals, so their numbers are very high. They are now taking the next step in trying to help these women settle in different parts of the world.
I want to work for the creation of an AIBA in exile. I think there are a number of members of the Afghan legal profession who are now outside Afghanistan or who remain in the country, including a significant number of female judges, who will want this type of entity. My idea is to create an entity where all these judges and lawyers can come together and create a community. This will allow the Diaspora to focus on the problems and solve them in the same way as they did in Afghanistan.
LAWYER: What advice do you have for independent lawyers remaining in the country, and for the international community considering strategies to mitigate the crisis?
Ellis: My first inclination would be to say that they should focus on survival. We know that there are many people in the country who are in hiding and whose lives are in danger. We continue to help them financially and provide support to a small number of these lawyers, but that of course does not solve the bigger problem. There are thousands of members of the bar association, and they certainly haven’t come out and won’t come out.
At this point, the international community must understand that the lives of those people who envisioned an Afghanistan rooted in the rule of law—human rights defenders, lawyers, judges, are still in danger.
Dr. Mark Ellis has served as Executive Director of the International Bar Association (IBA) for the past two decades. Previously, he was the first Executive Director of the Central European and Eurasian Law Initiative (CEELI), an initiative of the American Bar Association. He has also served as Legal Adviser to the Independent International Commission on Kosovo and Chair of the UN-established Advisory Group on Defense Counsel Issues of the Mechanism for International Criminal Tribunals, among others.
