| Cite as: 3 Nw. U. J. Int'l Hum. Rts. 4 at http://www.law.northwestern.edu/journals/jihr/v3/4 | JIHR Home > Volume 3 (April 8, 2005) |
"Afghans are victims of the games superpowers once played: their war was once our war, and collectively we bear responsibility."1
"In the approved version of the [Afghan] constitution, Article 3 was amended to read, 'In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam.' ... This very significant clause basically gives the official and nonofficial religious leaders in Afghanistan sway over every action that they might deem contrary to their beliefs, which by extension and within the Afghan cultural context, could be regarded as 'beliefs' of Islam."2
"The lopsided [electoral] victory by Iraq's Shiite Muslim alliance gives it the biggest voice in shaping the nation's new government and constitution.... Will Sharia, or Islamic law, become the main reference for national policy on divorce, censorship, the role of women in society, broadcasting and public morality, as many Shiite clerics and their followers insist?"3
¶ 1 During the past four years, the United States has replaced two dictatorial regimes in majority Islamic countries with more democratic governments. These interventions enforced the "Bush doctrine," the declaration of President George W. Bush after the murder of nearly 3,000 Americans by Saudi and Egyptian terrorists on September 11 that all states "harboring" or supporting terrorists would see their leaders deposed and pro-American ones installed.4 The Bush doctrine, its adherents plausibly argue, has profoundly advanced the cause of human rights in Afghanistan and Iraq. Specifically, it liberated Afghans and Iraqis from dictatorships with two of the worst human rights records in the world, replacing them with constitutional democracies ostensibly devoted to respecting individual rights.
¶ 2 Activists for human rights and religious freedom have been more critical concerning the United States' role in the political processes of Afghanistan and Iraq. They argue that the paradoxical effect of President Bush's policies is to have replaced two unstable, marginalized regimes with what may become enduring and universally recognized Islamic fundamentalist states, albeit with greater democratic credentials.5 The new constitutions of Afghanistan and Iraq have enshrined Islam as the official religion and source of legislation, which no social policies may contravene. This codification of religious fundamentalism was an inevitable byproduct, some observers contend, of the delegation of the nation-building process in both countries to religious extremists who enjoyed devoted followings of armed militiamen.
¶ 3 This article explores this debate by analyzing legal developments in Afghanistan and Iraq, with a particular focus on Afghanistan's new constitution, ratified in early 2004 before the first post-Taliban elections were held. The Afghan constitution symbolizes the unmistakable liberation of Afghanistan's people from the despotic and even genocidal rule of the Taliban, but its many provisions requiring compatibility of government policy with an unwritten code of Islamic law may allow grave human rights violations to continue, and frustrate democratic demands for respect for international human rights standards and the country's civil law traditions. Accelerated judicial reform will be necessary to ensure that the provisions in the constitution for judicial review of laws for conformity to religious doctrine will not be utilized to implement theocratic rule, which is the result that many powerful Afghans, possessing armed militias used to intimidate their political opponents, are working towards.
¶ 4 Afghan modernizers and fundamentalists have enjoyed varying degrees of foreign support and intervention throughout the twentieth century. Depending on how the new constitution is interpreted, the past support of the U.S. and its allies to some of the most radical elements of the fundamentalist camp may have assured their enduring victory. Part I of the Article explores the historical context in which Afghanistan's new constitution was drafted and ratified, and the unique responsibility of the U.S. and the Soviet Union in creating that context. Part II traces the rise and fall of the Taliban theocracy, which murdered thousands of political opponents and religious minorities, and intensified the fundamentalist oppression of Afghans instituted after the fall of the communist Afghan regime. Part III describes how after the rout of the Taliban, the U.S. accepted Afghan fundamentalists into prominent positions from which they could control the process by which Afghanistan would draft and ratify its new constitution and develop a post-Taliban legal system. Part IV proposes some test cases for judging the implementation of Afghanistan's new constitution and judicial reform efforts from the perspective of democracy and individual rights, including new bans on blasphemy and political secularism that are ripe for systematic abuse, plans to revive fundamentalist punishments avoided by most modern states such as stoning and amputation, and the ongoing oppression and enslavement of Afghan women and girls.
¶ 5 The article concludes by drawing some parallels between the Afghan constitutional process and the ongoing process of transitioning Iraq from a nominally socialist dictatorship with a genocidal record into a so-called "Islamic democracy."6 Many Iraqis, and almost all residents of majority Kurdish areas of northern Iraq, report being better off as a result of the U.S.-led operation to remove Saddam Hussein from power.7 But as in Afghanistan, the Iraqi delegates handpicked by the U.S and the U.N. to draft a constitution have established Iraq as a religious state. At the behest of powerful fundamentalists with private armies, the drafters of the interim Iraqi constitution included language providing for judicial review of legislation for conformity to an unspecified, but probably fundamentalist, version of religious law. At the same time, more than 100,000 Iraqis have died violently since the war began; Iraqi fundamentalists are murdering and raping members of the indigenous Christian population at an accelerated pace, prompting tens of thousands to flee the country; and Iraqi women are facing new restrictions on their freedom of movement and dress, as well as deprivation of their rights in marriage and divorce. The actions and public statements of Iraq's most prominent religious leaders, to which the likely leaders of the new Iraq will defer if present trends continue, raise precisely the same sorts of concerns as the fundamentalist policies that have continued in Afghanistan.
¶ 6 Like many countries, Afghanistan had no written constitution prior to the twentieth century. The land was ruled either as a province of another empire, or independently by an Afghan monarch or local tribal leaders.8 For many centuries, the legal system had its basis in a combination of Sharia law9 and ancient customs such as the jirga, a council of tribal elders convened to settle important issues,10 and Pashtunwali, the Pashtun code of conduct emphasizing conservative family values and the seclusion of women from public view.11 Around the turn of the 20th century, Afghanistan opened up to secular influences and women's rights by abolishing some forced marriages, raising the minimum marriageable age, liberalizing women's access to divorce and rights of inheritance, and prohibiting extravagant gifts to a bride's family that could be used in essence to purchase a girl from her parents.12
¶ 7 The events leading up to and following the adoption of the first Afghan constitution would be repeated many times in Afghan history: a set of policies looking towards the future and the West infuriated fundamentalists, whose opposition was violently suppressed but eventually succeeded, with foreign intervention, in deposing the regime responsible for the new policies.
¶ 8 On April 9, 1923, Amanullah Khan, the Amir of Afghanistan, secured the ratification by a Loya Jirga of Afghanistan's first written constitution.13 The 1923 constitution set forth a blueprint for modernizing Afghanistan and assuring greater rights for Afghan women and religious minorities within the framework of Islamic governance. It guaranteed that all Afghan subjects would have "equal rights in accordance with Sharia and the laws of the state."14 Some Afghans interpreted this provision as entitling Afghan women to citizenship and equal rights.15 The constitution promised greater rights to religious minorities such as the Hazaras, who as Shia Muslims had been labeled as infidels and massacred and enslaved in the nineteenth century for this reason.16 It abolished torture, slavery, and forced labor17; created a legislature, although the Amir would appoint the Prime Minister and many of its members18; and decreed that followers of religions other than Islam, such as Hinduism and Judaism, were entitled to the protection of the state.19 Elementary education became compulsory for all Afghan "citizens."20
¶ 9 Despite its modernizing aspirations, the 1923 constitution established what would be considered theocratic rule by contemporary standards. A "theocracy," literally speaking, would be the direct rule by a divine being on Earth21; this possibility having been disavowed by mainstream Christianity and Islam, most theocracies in fact consist of "government by priests or men claiming to know the will of God."22 By this definition, Afghanistan's 1923 constitution was theocratic by virtue of the authority it invested in men claiming to know the will of God. The constitution made the "sacred" and official religion of the state, and enshrined the King as the "servant and the protector of the true religion of Islam."23 It instructed legislators to give "careful consideration" to the "requirements of the laws of Sharia."24 Perhaps most importantly, it provided that in Afghan courts of justice, "all disputes and cases will be decided in accordance with the principles of Sharia and of general civil and criminal laws."25 The judiciary, in this instance as in others, served as the key instrument of fundamentalist Islamic theocracy.26
¶ 10 Taking on centuries-old customs, Amir Amnullah Khan introduced ambitious legislative reforms improving Afghan women's rights. The Amir declared that Afghan women would no longer "be treated as second-class Muslims."27 In 1921, he enacted a Family Code banning child marriage, marriages between close relatives, excessive dowries, and the exchange of women as "blood money" in payment of interfamilial disputes.28 He opened girls' schools and sent women students abroad for higher education.29 After 1923, the Amir introduced Afghanistan's first civil code,30 which abolished polygamy and marriages to all girls under the age of 18.31 His wife Soraya appeared unveiled in public and participated actively in politics, citing the example of women in the "early years of Islam."32
¶ 11 Not satisfied with the constitution's gestures towards theocracy, and disappointed with King Amanullah's record as the "protector" of Islam, Afghanistan's religious elite quickly moved to overthrow and reverse his modernizing reforms. The head of a prominent religious family, which served as "king makers" in Afghan society,33 immediately denounced the 1923 constitution as a "communist" document.34 A rebellion reached the outskirts of the capital Kabul, and was only repelled when the Amir mobilized his new air force to strafe and bomb the advancing insurgents,35 and then executed the revolt's leaders.36
¶ 12 Rebels having nearly toppled his regime, the Amir called a Loya Jirga to amend the 1923 constitution in several important respects designed to pacify Afghanistan's religious elite.37 One amendment made the Hanafi school of Islamic law the official religious rite of Afghanistan.38 Additional concessions from the Amir included "watering down" the rights of women,39 reintroducing torture when "in accordance with the rules of the Sharia,"40 and allowing a Council of Islamic Scholars to "decide whether new laws were in accordance with Islamic law."41
¶ 13 After Amir Amanullah became King of Afghanistan in 1926, he announced further sweeping reforms aimed at helping Afghan women.42 He endorsed expanding Afghan girls' access to education, proclaimed his opposition to the compulsory veiling of women, and imposed Western dress within the capital of Kabul.43 In response, Afghan religious leaders once again led conservative Afghan tribes in rebellion. Under siege, King Amanullah abdicated the throne in early 1929.44 Historians tend to blame the King's overhasty reforms for his downfall, especially those dealing with mandatory veiling, the seclusion of women, and forced and underage marriages.45 But the West failed to support the King who admired its values, and Britain actively worked to overthrow him. Many Afghans and even the British press believed that the British Empire was behind Amanullah's fall from power, given the Empire's poor relations with him.46
¶ 14 King Amanullah's successors quickly overturned his reforms. But in doing so, they did not return Afghanistan to a pre-modern or pre-constitutional condition. Instead, they established an Islamic constitutional monarchy that, despite its theocratic aspects, also retained some of the 1923 constitution's gestures towards reform.
¶ 15 A Loya Jirga in 1930 created Afghanistan's next stable government and pronounced Nadir Shah as Afghanistan's King.47 The King promulgated the second Afghan constitution in 1931.48 With a few minor changes, it endured as Afghanistan's governing charter for more than 30 years.49 Like the 1923 constitution, it embraced tradition while looking tentatively towards the future. On the side of tradition, it made the Hanafi school of Islam the state religion, established a requirement that all legislation conform to the Sharia, and gave religious authorities the power to review Afghan laws and governmental policies for correspondence to Sharia law.50 But it also guaranteed compulsory elementary education, freedom of the press within the limits of the Sharia, and a limited role for democratically elected officials to participate in the drafting of legislation.51 Afghan women became eligible to vote in elections, although the authorities later declared this provision to be incompatible with Islamic law.52
¶ 16 King Nadir Shah's government enforced Afghan women's obligation to wear the all-covering burqa, a tent-like covering that obscures the entire person and leaves only a mesh opening to see through.53 The new King reinvigorated purdah (the Persian word for "curtain"), or the prohibition against women participating in public life or having contact with any men other than their husbands or those close relatives whom they are forbidden to marry.54 In Afghanistan, these "restrictions severely limit women's activities, including access to education and employment outside the home. Many [women] are largely confined to their homes."55
¶ 17 The King was assassinated in 1933,56 leaving his throne to his 19-year old son Zahir.57 King Zahir Shah would preside over the slow improvement of living conditions in Afghanistan for over 40 years after his father's death in 1933.58 As Prime Minister, the King's first cousin Muhammed Daoud Khan strove to develop Afghanistan's economy by securing vast amounts of economic and military aid from the neighboring Soviet Union.59 The U.S. also initiated several important development projects in Afghanistan, but declined to supply military aid.60
¶ 18 In 1959, Prime Minister Daoud created a major cultural crisis when the wives and daughters of the Afghan royal family appeared unveiled for the first time since Amanullah's reign.61 Many religious leaders publicly condemned this display, but Daoud argued that Islam did not make the veiling and seclusion of women obligatory.62 Other educated women, particularly in Kabul, then began to abandon the veil, including growing numbers of nurses, midwives, and teachers.63 In response, the more conservative mullahs provoked riots and acid attacks on unveiled women,64 until Daoud had about 50 of them jailed and charged with treason and heresy.65 Daoud's government quelled an armed uprising in Kandahar with advanced weaponry obtained from the Soviet Union.66 Daoud finally released the mullahs from custody, and they brought the unrest to a halt, agreeing that each Afghan family would be allowed to decide for itself whether its women would practice purdah.67
¶ 19 In the 1960s, Afghanistan's third constitution propelled the nation further towards democracy and respect for human rights, but like its 1923 model it would eventually fall to a combination of foreign intervention and the violent opposition of local radicals. This time, the communists and fundamentalists would divide the country between them.
¶ 20 King Zahir Shah set out to establish a constitutional monarchy that would provide for more democratic input and thereby build public support for the regime.68 Despite Daoud's large victories in winning superpower development aid and ensuring greater participation for Afghan women in public life, the King successfully pressured him to resign as Prime Minister in 1963.69 The next year, a Loya Jirga ratified a new constitution, drafted with French assistance.70 Afghanistan's 1964 constitution "limited the monarch's absolute power through the creation of a parliament and the clear separation of powers."71 The King could no longer enact laws without the approval of both houses of parliament.72 But he retained broad executive powers, including the powers to declare war and command the army; to appoint the Prime Minister and one-third of the Afghan Senate, dissolve the parliament, and veto legislation; and to appoint the members of the Supreme Court.73 The lower house of the Afghan parliament and one-third of the Afghan Senate would be elected to four-year terms by direct elections, subject to the King dissolving parliament and calling new elections at any time and for any cause.74
¶ 21 The 1964 constitution loosened the requirements of previous Afghan constitutions that the state be governed in accordance with Sharia law.75 Like the 1923 constitution, it recognized Islam as the "sacred" and official religion of Afghanistan.76 But the 1964 constitution did not require that all Afghan laws conform to Sharia as such, stating that "there shall be no law repugnant to the basic principles of the sacred religion of Islam and the other values embodied in this constitution."77 Similarly, the constitution no longer anointed the King as the "protector of the true religion of Islam"78; instead it urged him to "protect the sacred principles of the religion of Islam."79 These references to general "principles" provided the legislature with greater leeway to enact laws that presented some tension with the tenets of Islamic law taken literally.80 Finally, the 1964 constitution no longer gave Sharia equal status with Afghanistan's "general civil and criminal laws,"81 but made it authoritative only where no statute existed in the area.82
¶ 22 One victory for religious conservatives in the 1964 constitution would have important consequences in post-Taliban Afghanistan, and that is the empowerment of the judiciary to enforce the Hanafi school of Islamic Sharia jurisprudence as Afghan law. The Hanafi school is perhaps the least accommodating of the four major schools of Sharia law to the autonomy of women and children, as it has traditionally been construed to allow marriages to be contracted by a guardian on behalf of a minor child and to forbid women from securing a divorce under most circumstances.83 The 1964 constitution stated that where no law existed in an area, "the provisions of the Hanafi jurisprudence of the Shariaat of Islam shall be considered as law,"84 and required Afghan court, to render justice in cases not controlled by the constitution or statutory law "by following the basic principles of the Hanafi jurisprudence of the Shariaat of Islam...."85
¶ 23 Although many subsequent commentators have stressed that the 1964 Constitution granted greater rights to Afghan women,86 the document did not make substantial advances in reforming women's rights within the legal or judicial system. The 1964 constitution gave all Afghan "people" equal rights and obligations before the law, as the 1923 constitution had given all Afghan "subjects" equal rights and duties before the law.87 Following the example of the 1923 constitution, women's equality and most of the other rights recognized in the 1964 constitution, including the right to liberty, property, freedom of speech and association, education, and employment, could be limited by provisions of the law.88 The 1964 constitution did innovate by granting Afghan women unprecedented opportunity to participate in government. Women won the right to vote in parliamentary elections, be elected to parliament, serve as members of government, and even become government ministers.89 These rights became a reality for the first time in Afghan history, as women helped vote several of their number into parliament,90 and a woman became Minister of Public Health in 1965.91
¶ 24 Ultimately, the 1964 constitution's most enduring legacy may be that radical elements in Afghan society misused its freedoms to prepare the way for dictatorship and the deaths of countless Afghans. Afghan communists, some of whom had been barred from Kabul University or recalled from study or work in the U.S. for expressing their radical ideas, became free to organize.92 Although the Kabul area elected a few Afghan women and leftists as representatives in the first elections under the 1964 Constitution, the parliament as a whole was dominated by the rural landowners and conservative religious leaders who could afford the high costs of running for office,93 which led many progressive young students and middle-class Afghans in Kabul to despair of democracy, and seek more radical solutions.94 In 1965, Muhammed Taraki and Babrak Karmal founded the People's Democratic Party of Afghanistan (PDPA), the Communist Party of Afghanistan "in all but name."95 The PDPA attracted a growing membership among young students and intellectuals in Kabul University and the urban Afghan middle class.96 Afghan voters elected three PDPA members to the Afghan parliament in 1965, including Karmal.97 The Principal of Kabul Teachers College, Hafizullah Amin, joined the PDPA and was elected to parliament in 1969.98 Each of these three men - Taraki, Karmal, and Amin - would go on to assume the helm of dictatorial left-wing Afghan regimes.
¶ 25 Prominent Afghan fundamentalists lacked the public support necessary to be elected as such to the parliament as PDPA members were, but they organized disciplined cadres of followers during the 1960s and 1970s. The ideas of the Egyptian fundamentalist Sayyed Qutb, the "intellectual light" of the Muslim Brotherhood, "attracted particular interest" in the Kabul Sharia faculty,99 which Kabul University opened in 1952.100 Al-Aznar of University in Egypt, which had taken the Kabul Sharia faculty under its wing,101 was a center of the Muslim Brotherhood's fundamentalist political activity.102 The head of the Kabul Sharia department, Professor Ghulam Muhammed Niazi, was deeply influenced by the Muslim Brotherhood's campaign for Islamic fundamentalist rule while studying at al-Aznar University.103 The fundamentalist program of the Muslim Brotherhood and its progeny of jihadist groups is, in brief, a holy war that would replace the corrupt monarchs of Muslim countries with Islamic states that would govern all aspects of life, strictly segregating men and women and providing "humanity a complete cure for all its ills."104
¶ 26 From his perch as professor of Sharia law, Professor Niazi led the fundamentalist movement in Afghanistan. He established cells in Kabul and Paghman dedicated to formulating strategy, and developed contacts with sympathetic government officials.105 Joining Professor Niazi in his campaign for an Islamic revolution in Afghanistan were two other graduates of al-Azhar University, whose fundamentalism would determine the course of Afghan history for generations: Burhannudin Rabbani and Abdul Rasul Sayyaf.106 Mr. Rabbani, who had translated the writings of Sayyed Qutb into the Afghan language of Dari,107 succeeded Professor Niazi as Amir of the Islamic Association of Afghanistan in 1972.108 Around this time, a young student leader at Kabul University named Gulbuddin Hekmatyar joined the Muslim Brotherhood109 and shortly became famous for throwing acid in the faces of unveiled Afghan women.110 Rabbani, Sayyaf, and Hekmatyar would each go on to lead the fundamentalist revolt against the Afghan constitutional monarchy, then the Afghan communists, and finally against the Soviet occupation of Afghanistan. Eventually, each of them would govern entire mini-states, but none of them could ever quite manage to bring all of Afghanistan under his faction's control.111
¶ 27 Despite Afghanistan's slow but steady progress in promoting democratic input and women's rights under Zahir Shah, Afghan leftists demanded immediate and sweeping change. But the socialist and communist ideology to which they turned sparked implacable opposition in Afghanistan's conservative religious leaders, setting the stage for the decades-long struggle between Soviet-backed leftist governments and Pakistani-based fundamentalist jihadi fighters
¶ 28 With extremists organizing feverishly, the Afghan economy entered a tailspin in the early 1970s. Government corruption and a three-year drought from 1969 to 1972 brought on a famine that killed between 100,000 and 500,000 Afghans.112 The Afghan famine provided an opening for former Prime Minister Daoud, still popular with the Afghan military,113 to overthrow the monarchy in 1973.114 Young officers trained in the Soviet Union executed the coup.115 Afghanistan became a republic, and Daoud its first President.116 Half of his cabinet ministers in were communists allied with the Parcham faction of the PDPA led by Babruk Karmal, and hundreds more communists entered government ministries and provincial officialdom.117
¶ 29 Daoud saw the fundamentalists as the greatest threat to a modern Afghanistan, so he arrested Professor Niazi and 200 other fundamentalist plotters in Kabul.118 By one account, this action began the war between leftists and fundamentalists that continued for almost 20 years, until the near-obliteration of the leftists and the communist movement after the dissolution of the Soviet Union and the mujahideen victory in 1992.119 The fundamentalists who had fled to Pakistan from Daoud's mass arrests, including Rabbani and Hekmatyar, helped organized a holy war against Daoud's regime from their new base in Pakistan.120 The most successful operation was an incursion from Pakistan into Afghanistan's Panjshir valley led by Ahmed Shah Massoud, who would become one of Rabbani's best commanders.121 The revolution failed, however, and the fundamentalist movement splintered into factions led by Rabbani and Hekmatyar.122
¶ 30 The 1977 constitution granted President Daoud near-absolute powers, a common theme among Afghan regimes following the fall of the monarchy.123 It was otherwise a profoundly leftist document, contemplating dramatic economic and judicial reforms.124 All laws contrary to the "basic principles" of the religion of Islam remained unconstitutional,125 and judges in the Afghan courts would decide cases before them not governed by statutory law according to Hanafi law.126 But for the first time in Afghan history, the country's constitution specifically stated that "women and men," and not simply all Afghan "subjects" or "people," were entitled to equality before the law and protection against discrimination.127 A unicameral legislature elected by all Afghans over the age of 18, half of which would be reserved for farmers and the working class, would draft legislation.128
¶ 31 The 1977 constitution was never truly implemented, because even as it was being prepared, the Soviet Union became concerned that Daoud was being drawn into a pro-American stance with Saudi money, and began pressuring the divided Afghan communists to unite to overthrow him, which they did.129 When Daoud issued an order for his communist opponents to be arrested, it triggered a revolution.130
¶ 32 During its long reign, and despite massive foreign aid, the monarchy had done little to improve Afghanistan's standing as one of the poorest, least healthy, and worst educated countries in the world. In the late 1970s, even after some of Daoud's reforms, 50% of Afghan children died before reaching the age of five, 80% of Afghan children received no education, and "the per capita income, at $157, was one of the lowest in the world."131
¶ 33 In April 1978, communist military officers turned Afghanistan's air force and tanks against the Daoud regime.132 The air force bombed the presidential palace, killing President Daoud and many members of his family.133 The first decree of the leaders of the revolution bestowed ultimate authority on the head of the PDPA, Nur Muhammed Taraki.134 Another decree gave men and women equal rights, prohibited forced marriages, established a minimum marriageable age of 16 for girls, and reduced the bride price to a low fixed minimum amount to discourage the widespread sale of young Afghan girls by their parents.135 "The Government called for women to enjoy freedom, to dress as they please, work in the civil service, armed forces and other institutions and enjoy other equal rights."136 Taraki's regime introduced universal education for boys and girls and a campaign against illiteracy, and enacted a "far-reaching redistribution of land" from large landlords to peasants.137
¶ 34 President Taraki's government rapidly lost control of the country to anti-regime forces, which in early 1979 led several Afghan provinces in open rebellion, including Nuristan and Hazarajat.138 Iranian fundamentalists, fresh from establishing the Iranian theocracy under Ayatollah Ruhollah Khomeini, inspired a revolt in the large Afghan city of Herat close to the Iranian border,139 drawing on outrage there against the government's efforts to promote Afghan women's literacy.140 An army officer named Ismail Khan organized a mutiny of the Afghan armed forces in the Herat area.141 In response, the government bombed the city and waged a devastating assault with tanks and helicopters, killing up to 20,000 people and razing many buildings.142 These events prompted Prime Minister Amin, who had gained influence over the Afghan security services, to seize power, killing his former comrade Taraki.143
¶ 35 In July 1979, U.S. President Jimmy Carter signed a National Security Directive authorizing secret American aid to the Pakistan-based rebellion against the Afghan government.144 President Carter's National Security Adviser advised him at the time that this aid would likely result in a Soviet invasion, and later boasted of "drawing the Russians into the Afghan trap."145 On December 27, 1979, Soviet forces in and around Kabul captured the main government ministries, neutralized key Afghan army units, and fanned out to other major Afghan cities such as Herat and Kandahar.146 Soon the Soviet occupying army reached 85,000 men.147 Before the Red Army's defeat almost another 700,000 men would follow.148
¶ 36 The Soviets installed PDPA founder Babruk Karmal as President of Afghanistan. Karmal promulgated a new constitution in 1980 that purported to establish the rule of the Afghan people and recognize a similar list of individual rights as those recognized in previous constitutions.149 The constitution no longer enshrined Islam as a bulwark of the government's legitimacy.150 All political parties other than the PDPA were outlawed.151 With the Red Army occupying the nerve centers of Afghan society, moreover, the Soviet leadership, rather than the PDPA or the Afghan people, was the real power in Afghanistan during the 1980s.152
¶ 37 Karmal and his Soviet handlers reaffirmed and expanded the efforts of Daoud and Taraki regimes before them to promote greater equality for Afghan women. The communists "officially sanctioned a wider public role for women, whose status improved."153 By 1985, 65% of the students at Kabul University were women, and Afghan women worked in most government agencies, social organizations, factories, the national airline, and the health care sector. 154 By the time the communists lost power, "women accounted for 70 percent of teachers, 50 percent of government workers, and 40 percent of medical doctors."155 Women worked as police officers, members of the military, and journalists.156 Afghan women increasingly appeared unveiled in public, as their counterparts in Soviet Central Asia had done decades previously.157 Communist reforms intruded into Afghan family life when the communists banned the purchase and sale of young girls as wives, and provoked rage by demanding that fathers allow their daughters to learn to read.158 The regime's family courts were "mostly presided over by female judges" and protected women's rights in marriage and divorce and to equitable child custody and support.159
¶ 38 Whatever hope existed for true equality between Afghan women and men, rich and poor, was lost in the genocidal war between Soviet and Afghan communist forces and the fundamentalist insurgents backed by the Western and wider Islamic worlds.160 Both sides abandoned laws and constitutions in a common descent into wanton violations of human rights.
¶ 39 U.S. President Ronald Reagan and Pakistani dictator Zia ul-Haq directed billions in American military aid for the mujahideen, mostly to "the more extreme Sunni fundamentalist faction led by Gulbuddin Hekmatyar."161 Hekmatyar used the money to organize a tightly disciplined faction for the day when he would "impose an authoritarian Islamic state that would sequester women and punish Moslems who don't practice their faith."162 With great violence, his party forced Afghan women refugees in Pakistan to bury themselves in burqas.163 Several Afghan women were murdered in Pakistan simply for failing to cover their hair.164
¶ 40 Saudi Arabia favored the armies of Abdul Rasul Sayyaf,165 whose party "recruited thousands of fighters from Arab countries."166 Like Hetmatyar, Sayyaf had little indigenous support in Afghanistan, but grew powerful because of the prolific Saudi money and foreign weaponry at its disposal.167 In 1980, Sayyaf recruited a number of "Afghan Arabs" to the Afghan cause,168 including Osama bin Laden, who was working with the CIA at the time.169 The CIA supported Pakistani efforts to "recruit radical Muslims from around the world" to fight in Afghanistan.170 Over 35,000 radicals from Muslim countries, mostly Arabs, signed up to fight in the "holy war,"171 and 65,000 had "direct contact" with the war.172 Over 12,000 Arabs and others received training in "bomb-making, sabotage and urban guerrilla warfare" in camps the CIA helped build.173 These Arab fighters would develop into the al Qaeda terrorist organization and become the military backbone of the Taliban movement.174
¶ 41 By 1987, the communists and fundamentalists had killed more than one million Afghans by some estimates,175 and had driven another seven million from their homes.176 The Soviets carpet bombed major Afghan cities such as Herat and Kandahar into ruins, wiped half of Afghanistan's villages off the map, and destroyed much of the country's farmland.177 Nevertheless, the Afghan resistance continually replenished its dead with new recruits from the millions of refugees in Pakistan and Iran, and armed them with fresh infusions of American and Saudi aid.178 The mujahideen gained control of up to 90% of the countryside and became "immensely wealthy" by making it the world's second largest opium producing land.179
¶ 42 Although the scale of the bombing and shelling of Afghan cities and towns posed the greatest threat to human rights, the mujahideen's fundamentalist policies promised to overturn decades of progress towards including Afghan women in public life. During the 1980s, women rarely walked the streets in rebel-controlled regions of Afghanistan.180 "Those who leave their homes wear the chador [or burqa], a voluminous shroud covering the wearer from head to toe, and may only survey the world through a 4-by-4-inch rectangle of netting extending from the tip of the nose to the eyebrows."181 In Pakistani refugee camps run by the rebels, women were denied access to areas containing men, and prohibiting from seeing male doctors.182 (When the Taliban continued these policies, the U.S. cited them to help justify the war.183)
¶ 43 In 1987, the new Soviet leader Mikhail Gorbachev decided to withdraw entirely from Afghanistan.184 The Soviets planned to leave the country to Najib Allah, the former head of the Afghan secret police, who had taken over from Karmal as the Afghan communist leader in 1986.185 Najib Allah convened a Loya Jirga in 1987 to signal the moderation of the communist regime's policies. The 1987 constitution it passed once again enshrined Islam as the sacred religion of Afghanistan and provided that no law could be contrary to its "principles" and the other values in the constitution.186 It guaranteed equal rights to men and women and among religious minorities in a similar manner to previous constitutions,187 and provided for a number of individual rights to be defined in accordance with the law.188 The ruling communist PDPA party lost its majority of seats in parliament after elections held in 1988 pursuant to the new constitution, and a member of Daoud's pre-communist government became Prime Minister.189 Najib Allah even reserved seats in parliament for mujahideen leaders, and invited them to lay down their arms and participate in a mixed government, an offer that they refused.190
¶ 44 The Soviets completed their withdrawal from Afghanistan in 1989.191 The day after the last troops had returned, Gorbachev proposed a cease-fire between the communists and fundamentalist parties to U.S. President George H.W. Bush, with the two superpowers agreeing to halt shipments of weapons until democratic elections under U.N. supervision could be held.192 The Bush administration and the Afghan rebels refused to negotiate, with the result that for years, the mujahideen supplied by the U.S. continued devastating rocket attacks on Afghan towns and cities, killing up to 40 people in each blast.193
¶ 45 Nevertheless, the Afghan communist regime of Najib Allah survived, sustained by a combination of rebel infighting and billions of dollars in Soviet military aid.194 Najib Allah convened a Loya Jirga in 1990, promising to achieve national reconciliation and moderate the communist face of the Afghan government. The resulting 1990 constitution proclaimed Afghanistan a multi-party state to be governed according to laws in conformity with the principles of Islam, including the right to own and inherit property pursuant to Sharia law.195 The commanding heights of the economy remained state property, but private investment was allowed, at least in theory.196 The National Assembly, selected by a mixture of direct elections and appointments as under previous constitutions, approved laws prior to the President's signature,197 with a Constitutional Commission exercising limited review.198
¶ 46 As many had predicted, the victory of the Afghan rebels brought civil war, fundamentalist outrages, and thousands of atrocities against civilians. The "Islamic revolution" triumphed in Kabul in April 1992.199 The military defense of Kabul unraveled due to the collapse of the Soviet Union in 1991 and the defection of Afghan communist military commander Rashid Dostum to the rebels in March of 1992.200 But after the communist regime fell, the war continued. With no communists left to fight, the mujahideen leaders were left to wage a bitter struggle for power among themselves,201 as Najib Allah had predicted in 1990.202
¶ 47 The mujahideen perpetrated frequent massacres and "indiscriminate killing," as well as "rape, torture and looting."203 Joined by General Dostum's tanks, Hekmatyar's forces finished the job of destroying Afghanistan's housing stock and architectural heritage by rocketing the Afghan capital Kabul into ruins.204 Almost 20,000 Afghans were killed or injured during the fighting in 1993.205 In 1994, the United Nations reported that Kabul, spared the type of bombing to which Kandahar had been subjected by the Soviets, had become "the most destroyed city in Afghanistan."206 The warring factions killed about 50,000 Kabulis207 and committed many "medieval atrocities."208
¶ 48 The victorious fundamentalist armies subjected Afghan women to some of the worst treatment in Afghan history.209 The State Department reported that the mujaheddin were responsible for "innumerable cases of rape."210 Human Rights Watch described 1992-1995 as the worst period in Afghan history, replete with "mass rapes" and the indiscriminate slaughter of civilians.211Mujahideen fighters kidnapped many Afghan women for purposes of sexual slavery, as a "method of intimidating vanquished populations and of rewarding soldiers." 212
¶ 49 While the soldiers of the victorious rebel armies ran wild, discipline was reserved for Afghan women. In 1994, the Supreme Court of the Islamic state of Afghanistan issued a series of rulings requiring a woman to "wear a full-body veil"213 and stating that she "must not leave her house without her husband's permission," and "must not look at strangers."214 Other courts issued rulings ordering that women be stoned to death for adultery or other crimes.215
¶ 50 The "valiant and courageous Afghan freedom fighters"216 also persecuted religious minorities viciously.217 On February 11 1993, the military forces of President Burhanuddin Rabbani and his ally Abdul Rasul Sayyaf occupied a Kabul suburb populated largely with minority Shia Hazaras. Their armies killed "'up to 1,000 civilians', beheading old men, women, children and even their dogs, stuffing their bodies down the wells."218
¶ 51 Finally, Afghanistan under mujahideen rule became known for training and harboring international terrorists. Ramzi Yousef, who masterminded the 1993 World Trade Center bombing, had fought under the command of Abdul Rasul Sayyaf, the junior partner in Rabbani's mujahideen government.219 The U.S. government issued a report in the 1990s in which it cited Saudi-backed mujahideen commander Sayyaf for "continuing to harbor and train potential terrorists."220 Sayyaf's faction maintained close contact throughout the 1990s with Osama bin Laden, and welcomed him back to Afghanistan in 1996.221
¶ 52 Almost three years after the fall of the communist government, the mujahideen had failed to establish an effective central government or national judicial system.222 Instead of establishing law and order, their forces were killing, raping, and looting at will, and had "blocked food and medical supplies desperately needed by [the Afghan] people."223 An estimated 100,000 Afghans died in Kabul alone prior to the Taliban takeover in 1996.224 All told, about 400,000 Afghan civilians died in the civil wars and humanitarian disasters of the 1990s.225
¶ 53 In early 1994, according to their own legend, a group of former mujahideen fighters and Islamic students, or Taliban, joined together to fight the "Muslims who had gone wrong," and started by freeing young boys and girls from local warlords who had kidnapped them for rape.226 As the future President of Afghanistan, Hamid Karzai, testified before Congress, the "Taliban emerged when Afghans were desperately looking for a savior," and their "emergence was supported by the majority of the Afghan people" who hoped that they would "end the bloodshed" and bring "peace and stability."227 The Taliban selected Muhammed Omar as their leader, a village mullah from a backward area of southern Afghanistan who had fought in the American-backed jihad against the post-Soviet Afghan government of Najib Allah.228
¶ 54 The U.S. and its allies in Pakistan and Saudi Arabia initially supported the Taliban movement.229 Their critical military, financial, and diplomatic aid to the Taliban transformed a ragtag gang of fighters into a sophisticated army with tanks, artillery, bombers, and an intelligence capability.230 With fresh infusions of foreign financing and manpower for each new offensive, the Taliban defeated every major mujahideen commander. The Taliban captured Kandahar in 1994 largely by bribing local commanders with over $1.5 million probably provided by Saudi Arabia via Pakistan.231 They doled out more cash to buy control of Uruzgan and Zabul provinces,232 and occupied Herat with tens of thousands of Pakistani recruits and "arms, ammunition, and vehicles provided by Pakistan and Saudi Arabia."233 In 1996, Saudi and Pakistani intelligence orchestrated the triumph of the Taliban revolution by helping ensure the fall of Kabul and Jalalabad.234 As many as 8,000 more residents of Kabul died in the fighting and the ensuing Taliban atrocities.235 In response, many of the mujahideen leaders whose factions had opened the way for the Taliban revolution by abusing the Afghan population for years formed the Northern Alliance.236 But angered by the looting and routine violence against civilians that had characterized mujahideen rule, some Kabul residents initially welcomed the Taliban, even after thousands of Kabulis died in the battle for the city.237
¶ 55 The Taliban persecuted the Shia Muslims, who then made up as much as 20% of the Afghan population, even more brutally than had the mujahideen under Rabbani and Sayyaf.238 A mutiny in Mazari-Sharif opened the door to Taliban occupation of that city; although 3,000 Taliban died in an uprising that followed, the Taliban retook the city in 1998, backed by Pakistani intelligence officers and even Pakistani troops.239 The victorious Taliban slaughtered up to 8,000 civilians in a frenzy of killing and rape directly mostly at the Shia Hazara.240 The Hazara holdout of Bamiyan was the last major city to fall, with more mass murders of Shias the result, including of hospital patients roused from their beds.241 The post-Taliban governor of Bamiyan has estimated that 20,000 Shias and others died in this way.242 Iran mobilized its army to intervene against the massacres and systematic rape of Shias, but backed down under pressure from the U.N. Security Council.243 The genocidal killing continued into 2001, as Pakistan continued to deliver military aid to the Taliban in violation of U.N. sanctions.244
¶ 56 The Taliban aimed to install a government and legal system that would revive a life like pious Muslims had lived "1,400 years ago."245 The Attorney General of the Taliban declared: "The Constitution is the Sharia so we don't need a constitution."246 The Taliban believed that the principal purpose of the anti-Soviet jihad had been the establishment of Sharia law,247 and indeed that is how the mujahideen leaders who had been fighting for Sharia from bases in Pakistan even prior to the communist coup in 1978 explained their war at the time.248
¶ 57 Saudi Arabia, the primary backer of the Taliban along with Pakistan, served as the model for the Taliban state.249 Saudi Arabia is a fundamentalist monarchy, whose constitution demands allegiance to its founding King and his "children's children" in the name of religion.250 Its government tortures members of religious minorities and its religious police administer beatings to women who reveal their faces, hair, or bodies in public.251 The Saudi government helped create the Taliban, encouraged them to give refuge to bin Laden, and tutored them in theocracy.252 The Saudi Ministry for the Propagation of Virtue and the Prevention of Vice trained a similar Taliban agency in enforcing Saudi-style laws, including the near-total covering of women.253
¶ 58 The resulting system of Taliban law involved severe criminal sanctions, enforced with great capriciousness and corruption, against any activities viewed as sinful or otherwise harmful. The Taliban's prohibitions addressed activities prohibited by religious tradition as harmful to the person (drugs and alcohol, gambling, and usury); sexuality and Western fashions (music and dancing, British or American hairstyles, the shaving of men's beards, women's high-heeled shoes, and fashion magazines); "idolatry" (photographs, paintings, statues, and sorcery); and other relatively harmless activities that might lead to gambling or distract from prayer (television, sports, kite-flying and the keeping of birds as pets).254 Proving the old adage that the law often falls behind advances in technology, however, the Taliban did not prohibit use of the Internet until July 2001, half a decade after banning kite-flying in 1996.255
¶ 59 The mode of enforcement of the Taliban's prohibitions proved as uncompromising as the bans themselves. Torture by various methods was routine and vicious under the Taliban.256 Violations of the Taliban dress code and inappropriate male-female contact were cause for being beaten black and blue with clubs or rifle butts.257 Implementing Taliban law required stoning adulterers and amputating the hands of criminals, medieval punishments which had been abandoned by most Muslim countries.258
¶ 60 While Afghan men suffered conscription into the Taliban army,259 bitter fighting in the north of the country,260 imprisonment or murder for their religious or political affiliation,261 and denial of virtually any access to entertainment or unrelated members of the opposite sex, they enjoyed some ability to go to school, find a job, and travel. The Taliban kept Afghan women, by contrast, largely shuttered indoors.262 Upon taking power in Kandahar in 1994, the Taliban forbade the education of girls and the employment of most women outside of their homes.263 After becoming the rulers of most of Afghanistan in 1996, the Taliban's religious police decreed that women must wear all-covering burqas, which many Afghan women could not even afford (as they cost about two months' wages), effectively sentencing them to house arrest.264 The Taliban ordered women to stay in their homes as much as possible, ended the rudimentary female education and employment that the mujahideen had allowed to continue,265 and allowed women to see only female doctors, while banning women from practicing medicine.266
¶ 61 The Bush administration, in response to the terrorist attacks of September 11, 2001, demanded that the Taliban cease harboring Osama bin Laden and the al Qaeda terrorist organization, and threatened war and the destruction of their government if they refused. But the Taliban declined to hand over bin Laden, the Saudi terrorist leader and mujahideen fighter suspected of masterminding or inspiring the 9/11 attacks; bin Laden had contributed about $100 million to the Taliban by that time.267 A Taliban spokesman, however, indicated that the regime would hand bin Laden over for trial, provided that the U.S. provided evidence of his responsibility for the 9/11 attacks, which the U.S. had provided only to its "key allies."268
¶ 62 On October 7, 2001, the U.S. began bombing al Qaeda terrorist targets and Afghan military, electricity, and communications facilities.269 Special forces units on the ground provided the targeting coordinates for U.S. aerial bombing, which destroyed the Taliban tanks and troops that had held off the Northern Alliance opposition for years.270 Hundreds of Taliban conscripts and hardcore troops died in the fighting, including many prisoners of war summarily executed by Northern Alliance gunfire or suffocation in sealed truck containers.271 Thousands of Afghan civilians died in the U.S. bombing raids and the ground operations that mopped up after them.272 Whole families were cut down, sometimes as a result of apparently indiscriminate bombing based on innacurate or misleading information.273
¶ 63 Driving the Taliban before them, the luminaries of the anti-Soviet jihad retook their former positions in Herat,274 Bamiyan,275 and Kandahar,276 the prize of Kabul going to the forces of former President Rabbani, now led by Ahmed Shah Massoud's successor Muhammad Fahim.277 Former mujahideen deputy foreign minister Hamid Karzai, leader of the largest Pashtun tribe, entered Afghanistan after September 11 to raise a Pashtun rebellion against the Taliban, joining Gul Agha Shirzai in taking Kandahar.278
¶ 64 The occupation of Kabul by the Northern Alliance created a political crisis for the U.S. and the U.N., which had urged their forces to hold back from taking the city until a broad-based government could be formed. Under pressure from the U.S. and other nations, Northern Alliance commanders and other Afghan military factions agreed to participate in U.N.-sponsored talks held in Bonn, Germany. Almost two dozen Afghan delegates, mostly drawn from the Northern Alliance and the circle around former King Zahir Shah, signed an accord called for the creation of an Interim Authority to rule Afghanistan until a Transitional Authority government could be selected in a Loya Jirga six months later, and a "fully representative government" freely elected two years after that.279 Although loyalists to the former King Zahir Shah initially voted that he return to power, the U.S. and U.N. secured the delegates' agreement to appoint Pashtun anti-Taliban leader Hamid Karzai as Chairman of the Afghan Interim Authority.280
¶ 65 Over 1,000 elected and 700 selected delegates to the June 2002 Emergency Loya Jirga established the Islamic Transitional Authority of Afghanistan281 and elected Hamid Karzai as its President.282 Despite the support of a majority of delegates at one point, the former King of Afghanistan Mohammad Zahir Shah withdrew his name from consideration for the presidency, prompting Human Rights Watch to accuse the U.S. of "'brazen' interference in the loya jirga, [which was] promoted as the birth of Afghani democracy."283 Some delegates also objected that mujahideen commanders who had killed innocent Afghan civilians were wielding too much control over the Afghan political process. "We were told that this loya jirga would not include all the people who had blood on their hands," said one delegate to applause.284
¶ 66 Bonn's aspirations for government under law and with respect for human rights have yet to be realized throughout Afghanistan. Of course, the Karzai administration inherited a miserable and barely functioning country from the Taliban and Northern Alliance forces who had controlled it through 2001: average life expectancy was only 40 years, 70% of Afghans were malnourished, more infants died in childhood and more mothers died in childbirth than in almost any other country ever recorded in human history, and millions of children had been orphaned in the various wars since 1978.285 But none of these poor health statistics can justify the sorts of human rights violations that have occurred in Afghanistan since the Taliban's fall.
¶ 67 The Karzai government began as "an island in a sea of uncompromising warlords" who field large militias outside the framework of the Afghan National Army and exercise totalitarian theocratic powers.286 Most rural areas and even major cities are not under the firm control of the central government, especially at night.287 According to a member of the Afghanistan Independent Human Rights Commission, "trials do not take place in accordance with law. In provinces, warlords are the law, the judge, the government."288
¶ 68 Abdul Rasul Sayyaf, a Wahhabi fundamentalist sent to Afghanistan in the 1980s by Saudi Arabia to promote its ideology,289 controls much of Kabul province.290 The governor of Kabul province and many of the city's police and intelligence officials are loyal to him, his troops patrol western Kabul, and even President Karzai himself is reportedly "often forced to bow to [his] demands."291 International peacekeepers in Kabul "have publicly accused ... troops under his control of being responsible for a series of murders, abductions and extortion incidents in that sector of the city, aided by a cadre of loyalists in the police department."292 Following mainstream Saudi ideology,293 his forces "continue to enforce strict Islamic social codes including restrictions on women's education and dress."294 Sayyaf's forces have tortured villagers and old people for such crimes as listening to music.295 He views any attempt to question his authority as a form of blasphemy, and had two newspaper editors arrested on blasphemy charges and sentenced to death for criticizing his tactics.296
¶ 69 The authorities in Kandahar, Afghanistan's second largest city, continue to implement the rural Pashtun traditions that the Taliban proclaimed to be requirements of Islam.297 Young girls are forced into marriage under pain of imprisonment; one received a five-year sentence for refusing to go along with an arranged marriage.298 The police jailed another woman for refusing to enter into a marriage with a man to whom she had been promised by her parents when she was only two years old.299 Kandahar's post-Taliban legal officials imprisoned a woman who escaped after being held as a sex slave for seven years; she had been sold for about $200 during Taliban times to a man who raped her repeatedly.300 Because of cases like these, the head of a major nongovernmental organization working in Afghanistan reported that she could "see no change for most women" in Kandahar since the Taliban lost power.301
¶ 70 In the north, a campaign of ethnic cleansing against Pashtuns has raged. Soldiers and armed militia in northern Afghanistan have rounded up and shot dozens of Pashtun men at a time, raping many Pashtun women and young girls, a crime that can lead to the murder of its victim by members of her own family in conservative rural Afghanistan.302 The militia of former communist commander General Dostum raped whole families of women, including girls as young as 10.303 A U.N. official called the abuses against ethnic Pashtuns "systematic and wide scale."304 Thousands of Pashtuns fled their homes, some living in caves to keep warm.305
¶ 71 For most of the past four years, a "hardline Islamist" ruled Herat, a historically more liberal city near the Iranian border that is widely viewed as a litmus test for human rights after the Taliban.306 The security forces of Governor Ismail Khan borrowed a page from neighboring Iran, which Khan called "the best model of an Islamic country in the world,"307 using beatings and torture to silence political opponents, journalists and human right activists.308 Women complained that his regime resembled that of the Taliban,309 as their mode of dress was confined to two options: burqas or full-body veils (known as chadoris) that expose only the face.310 The police in Herat ordered that 10 forced gynecological examinations be conducted every day to test the chastity of girls or women arrested on suspicion of immoral conduct.311 Although President Karzai promoted Ismail Khan from Governor to the Ministry of Mines in September of 2004, he continued to field a militia, and thousands of petty warlords with similar ideologies continue to hold power in their respective fiefdoms.312
¶ 72 The principal engine of theocratic tendencies on a national basis has been the Afghan courts, the policies of which have been indistinguishable in some respects from the Taliban's. As a respected religious scholar among mujahideen, Sayyaf persuaded Afghan transitional president Hamid Karzai to declare Afghanistan an "Islamic" state after the Loya Jirga, and to ensure that "Afghanistan's justice system will be based on the Koran and Sharia law."313 Sayyaf, the Northern Alliance's "No. 2 political leader," threatened guerilla war against the government if his demands were not met.314 Foremost among these demands is gender apartheid.315
¶ 73 Sayyaf prevailed upon President Karzai to appoint as Chief Justice of Afghanistan's Supreme Court Fazal Hadi Shinwari, a fundamentalist member of Sayyaf's political party who is not even trained in Afghan constitutional or statutory law.316 Shinwari has "called for Taliban-style punishments and brought back the Taliban's dreaded Ministry for the Promotion of Virtue and Prevention of Vice," which "deploys squads to stop public displays of 'un-Islamic' behaviour among Afghan women."317 A list of laws and policies being enforced in Afghanistan reads like the Taliban's handbook: women cannot speak in private with men, young people can be arrested if they marry without their parents' consent,318 women are forbidden to travel without supervision of a male family member, married women are denied the ability to attend high school, education of women together with men is banned, and women are restrained from singing in public.319 Most women remain confined to their homes as many Afghan men, backed by the judiciary, continue to treat women "according to the old Taliban ways."320
¶ 74 Shinwari's influence stretches far beyond the Supreme Court. He has "appointed most of Afghanistan's current judiciary -- mostly clerics in rural areas -- as well as many of the country's provincial governors, especially near Kabul."321 He used this power to appoint Afghans with only informal religious training and little experience to the bench, including almost 130 of his political allies to the Afghan Supreme Court,322 while women judges with decades of experience in the Afghan judiciary were denied posts.323 As a result, the Afghan courts are "dominated by religious conservatives who have more in common with the Taliban than with Karzai."324
¶ 75 The U.S. promised that an Afghan commission on judicial reform would rein in Mr. Shinwari's theocratic excesses. But due to the fundamentalists' control over the political process, judicial reform long stood at a standstill, even backsliding into increasing control by extremists.325 The Judicial Reform Commission was dissolved in 2002, "reportedly obstructed by religious hard-liners."326 The Supreme Court is itself violating the constitution by being packed with too many justices. 327 Moreover, little or nothing has been done to ensure that judges are qualified, that criminal defendants have access to defense attorneys, that lawyers have access to books containing the laws currently in effect, or that endemic corruption ends.328 Prison conditions are horrifying, and torture is common.329 Far from secular reformists gaining ground, Sayyaf himself is said to be next in line to be Afghanistan's Chief Justice.330
¶ 76 The Bonn agreement provided for a Constitutional Commission to draft a new constitution for review and adoption by a Constitutional Loya Jirga to be convened by October 2003.331 President Karzai appointed a nine-member Constitutional Drafting Commission, which included two women,332 and a 35-member Constitutional Review Commission, which included seven women.333 President Karzai appointed Vice President Nematullah Shahrani, a prominent conservative, to head both commissions, a signal to many that the constitution would establish a national religion and mandate strict religious law.334
¶ 77 Past Afghan constitutions failed to ensure national unity and long-term stability, partially because the population as a whole felt excluded from the drafting process.335 To involve the Afghan people in the framing of their constitution, the Afghan government and international community planned to submit the draft document to a broadly representative Constitutional Loya Jirga, which was held in December 2003.336 In addition, the U.N. helped organize a public consultation process to include thousands of ordinary Afghans.337 Still, most rural Afghans never heard of the constitutional process underway in their country until it was already over.338
¶ 78 Given the decades-old struggle within Afghan society between secularists and fundamentalists, the role of religion in the new constitution was bound to be contentious. Fundamentalists such as Rabbani and Sayyaf used their representatives on the Constitutional Commission and the Supreme Court to fight for a constitutional mandate of theocracy.339 Experts warned that these leaders wanted their "conservative interpretation of Sharia law incorporated into the next Afghan Constitution."340 International human rights activists, on the other hand, advocated a constitution that respected religious difference and closed the door on the totalitarian fundamentalism that killed so many Afghans in the 1990s. A commission of human rights activists and Islamic law scholars recommended that the new constitution shy away from mandating one man's version of Sharia or Islam, and retain instead the flexibility of the 1964 constitution's requirement of governance in conformity with the "basic principles of Islam."341 Amnesty International and Human Rights Watch recommended other improvements to the draft constitution in terms of religious freedom and due process.342
¶ 79 Afghan activists also demanded strong protection for women's rights. Afghanistan's Deputy Minister for Women's Affairs argued for an express ban on all forms of discrimination against women and a clear requirement of universal education of Afghan women.343 A conference convened in Kandahar of women leaders from across Afghanistan went further, demanding an "Afghan Women's Bill of Rights" that included equal representation in parliament and the Constitutional Loya Jirga, compulsory education through high school with opportunities for higher education, full property and inheritance rights and participation in economic life, access to modern health services and reproductive care, freedom to decide whom to be married to, enforcement of criminal laws against violence and sexual abuse, and an end to the exchange of women as compensation for crimes by one family against another (known as Bad).344
¶ 80 The draft constitution, unveiled to the public in early November 2003, proclaimed Afghanistan an Islamic state with a national religion.345 Under the draft, no law could be "contrary to the sacred religion of Islam,"346 Afghan judges must rule in accordance with the provisions of the conservative Hanafi school of jurisprudence of Sharia law,347 the justices of the Supreme Court must swear to rule in accord with the "provisions" of religion, the President must swear an oath to safeguard religion, and the nation's educational curriculum would be religious in nature.348 These articles represented a significant departure from the 1964 constitution, which required Afghan law to be consistent merely with the general "principles" of Islam rather than a government official's view of what the "religion" itself provides.349 Under the new draft, "anything that is against Islam could not go forward," because conservatives forces were empowered to "say virtually whatever they want is against Islam."350
¶ 81 The draft constitution's almost complete silence on women's rights proved to be its most disappointing and even embittering flaw in the eyes of many activists for women's rights and the rule of law. The draft guaranteed women almost 17% of the seats in the Afghan Senate,351 but it did not explicitly guarantee women equal rights with men or prohibit discrimination against women, even though similar provisions are contained in several constitutions of majority Islamic countries in the Middle East, the Central Asian former Soviet republics, and South Asia.352 Nor did it provide Afghan women with rights of equal access to employment, education, and health care, or with any protections against forced marriages, family violence, and sexual abuse.353 Instead it provided all Afghan "citizens" with equal rights and protection against discrimination,354 without stating clearly that women are citizens.355 For these reasons, a Gender and Law Working Group convened by the Ministry of Women's Affairs prepared a number of recommended amendments to the draft constitution, including an anti-discrimination clause, guarantees of equal rights and full citizenship for women; an end to forced marriages and trafficking in women; and a provision outlawing slavery and "slave-like practices."356
¶ 82 On January 4, 2004, the 1,500 Afghan delegates to the Constitutional Loya Jirga (CLJ) ratified the new constitution. The changes to the initial draft reflected a series of hard-fought compromises negotiated among several factions and hundreds of individuals. World leaders, including the President of Afghanistan, the representative of U.N. Secretary-General to Afghanistan, the U.S. Ambassador to Afghanistan, and the U.S. President, immediately hailed the new constitution as a triumph for human rights. President Karzai called it "the most enlightened in that part of the world."357 The U.S. Ambassador to Afghanistan praised the document as "one of the most enlightened constitutions in the Islamic world."358
¶ 83 The Afghans who participated in the constitutional drafting process, and the international community, crafted a charter for their country that stands as an unqualified improvement over the Taliban's unwritten code of theocratic oppression. Among other improvements, the constitution remedied the draft's failure to enshrine women's rights. It now provides that: "Any kind of discrimination and privilege between the citizens of Afghanistan are prohibited. The citizens of Afghanistan - whether man or woman - have equal rights and duties before the law."359 This clause revives precedents in the 1977 and 1987 constitutions that specifically guaranteed that Afghan women would enjoy equal rights before the law and protection against discrimination.360 Moreover, the new constitution envisions a level of participation by Afghan women in their country's parliament that surpasses any historical precedent in that country, or indeed in most other countries. On paper, women are guaranteed over 25% of the seats in the lower house of parliament, and almost 17% of the upper house.361
¶ 84 But a close examination of the tight relationship the constitution establishes between religious doctrine and the judiciary reveals that the claim that the new constitution is the most "enlightened" in the region, even in the entire Islamic world, is implausible. Although women are equal "before the law," the intention of the Afghan courts and many of the constitution's drafters is that the laws will treat them very differently in many respects, and deny them many liberties available to men. And while they may be ensured a say in parliament, their ability to pass laws improving women's plight in their country will be strictly limited by a veto power the constitution grants to radical fundamentalists in the Afghan judiciary. The constitution also omits elementary protections available to women in other countries where they have not been subjected to the kind of treatment suffered in Afghanistan for many years, such as a ban on slavery and slave-like practices, or a requirement that both parties consent to a marriage.362
¶ 85 Many Afghans and international human rights groups have accordingly tempered their praise of the constitution. They have expressed fears that several provisions could be used to enforce medieval interpretations of Islamic Sharia law, suppress religious expression and political speech, and perpetuate Afghan laws and customs that ruthlessly oppress Afghan women. An agenda to accommodate a fundamentalist future for Afghanistan permeated the CLJ, and prevented the new constitution from realizing the promises of the U.S. and U.N. that Afghanistan would henceforth abide by international human rights standards. The warlords and fundamentalist leaders, who issued death threats against more moderate Afghan men and women to deter them from participating in or even attending the CLJ, prevailed on several critical issues that the assembly addressed.363 Their death threats and vote buying ensured that the "majority" of CLJ delegates were tied to the "warlord controlling the province they came from."364 Nor did the intimidation end at the doors of the CLJ. The chairman of the CLJ, a former mujahideen leader, announced that female delegates should not "try to put yourself on a level with men. Even God has not given you equal rights, ... because under his decision two women are counted as equal to one man."365 The chairman called for delegates who circulated a petition proposing the removal of the word "Islamic" from the name of the country to be "identified and punished" as infidels, an offense worthy of the death penalty during Afghanistan's recent history.366
¶ 86 At the CLJ, the warlords that have ruled most of Afghanistan since the fall of the Taliban succeeded in transforming a clause providing that no law could be contrary to the religion of Islam "and the values of this Constitution" into one that says that "no law can be contrary to the beliefs and provisions of the sacred religion of Islam."367 Afghan experts and human rights activists regard the new clause as much more subject to abuse by fundamentalists who seek to impose Taliban-like theocratic rule, because the "provisions" of Islam were precisely what the Taliban claimed to be enforcing. Female CLJ delegates and human rights activists therefore view this provision as introducing a strict version of Sharia law by the "back door."368 The "beliefs and provisions" clause means "that Islamic law is the supreme law of the land," and its content will inevitably be left for a Supreme Court staffed by "hard line Shariah jurists" to interpret.369 Under the new constitution, the Supreme Court, whose Chief Justice has consistently pushed for a theocratic state in which his interpretation of Islam would hold sway,370 "can review compliance with the Constitution of laws, legislative decrees, international treaties, and international conventions, and interpret them, in accordance with the law."371 The constitution grants the Supreme Court, which the Chief Justice has packed with many sympathetic judges who lack training in Afghanistan's civil and secular laws, the "power to reject virtually any law or treaty as un-Islamic."372
¶ 87 While failing in some respects to adequately protect human rights, the new constitution doesn't do enough to prohibit Taliban and other war criminals from keeping or winning government posts, and using them to impose fundamentalist rule. Such efforts had precedents in Nazi Germany and Imperial Japan,373 and would be revived in post-Saddam Hussein Iraq. The new constitution bars only those actually "convicted" of crimes against humanity from becoming President, a Minister, or member of the National Assembly or Supreme Court.374 The ineffectiveness of this provision results from the fact that despite "the enormous scale of war crimes, crimes against humanity and other serious human rights violations committed in Afghanistan, ... no one has yet been tried by a competent court for crimes committed during the long years of conflict in the country."375 Rather than convening trials, in late 2003 coalition forces "released the Taliban's foreign minister from custody, and prominent Afghan officials ... invited him and other Taliban to run for office in the upcoming elections, something that millions of Afghan women are still too afraid to do."376 After the Karzai government took office, "many former Taliban officials [were] sitting in the same government positions they held when Mullah Mohammad Omar was still in charge."377 Other Taliban officials have been wooed with "'the offer of a place in the government.'"378 Amnesty International thus declared the constitution's efforts to deny power to war criminals "meaningless."379
¶ 88 In several other respects, implementation of the rights guaranteed in the constitution seems a distant dream. Shortly after the new constitution was adopted, U.N. Secretary General Kofi Annan's special envoy to Afghanistan warned that "there is no rule of law in this country yet."380 The Afghan Independent Human Rights Commission received complaints of hundreds of murders in 2003, most blamed on government officials and militia commanders.381 The Commission has found that "innocent people are put in jail for a very long time and for no reason."382 There is no sign of these practices having been put to an end by the adoption of the new constitution.383
¶ 89 Theocracy is a recurring problem in human history because the corruption and depredations of government by mere men make their countrymen long for a morally infallible ruler. But when political leaders use their military power to promote their own intolerant beliefs, the result has often been mass slaughter and widespread atrocities against members of other faiths, as occurred in the Crusades,384 counter-Reformation Europe,385 the European colonies of the New World386 and Africa,387 the Ottoman Empire during and after World War I,388 post-colonial India and Pakistan,389 and Sudan since 1989.390 But even mass killings have failed to preserve many theocracies from persistent rebellions led by subjects who chafe under the human rulers' arrogant misrepresentation of their own narrow views as the mandate of heaven.
¶ 90 In the same way, the Taliban, and before them the fundamentalists among the mujahideen, forced Shia Muslim Afghans