Russia’s war of aggression against Ukraine has caused massive loss of life and destruction of property, forcing millions to seek refuge in neighboring countries. There is mounting evidence that the Russian military has committed war crimes and crimes against humanity, intentionally attacking Ukrainian civilians. The urgent attention that Western countries have given to Russian war crimes and other atrocities in Ukraine has the potential to provide some accountability for gross violations of human rights as well as to shore up a faltering framework of international human rights law.
Yet the outpouring of support for the Ukrainian people and calls for accountability have the appearance of discrimination to those subject to similar fates in other violent conflicts around the world – raising questions about whether the race of victims and the geographic location of the crimes matter more than the crimes themselves or the suffering of the victims. As a 2021 report for Congress assessed, “The means by which the U.S. Government publicly calls out atrocity crimes ... is unacceptably politicized.” In that context, the urgency with which the international community is responding to atrocity crimes in Ukraine presents an opportunity to apply demands for accountability for crimes committed in Ukraine to victims in other conflicts.
Ignoring Afghans’ Suffering
Afghans are facing atrocities at the hands of the Taliban and see perpetrators in high government positions otherwise living in impunity. At the same time, Russian-perpetrated atrocities in Ukraine recall for Afghans the brutality they experienced by Soviet forces during the 1980s occupation of Afghanistan. Over the past 44 years, numerous atrocities, including crimes against humanity, have been carried out by different actors and are well documented.
Since the U.S. invasion of Afghanistan in 2001, mujaheddin warlords are accused of suffocating Taliban prisoners in shipping containers by the thousands. Government detainees have been credibly shown to be tortured and killed extrajudicially. Rape has been used as a weapon of war against both women and men. The United States has been shown to commit violent abuse, or turned a blind eye while its local, proxy forces committed atrocities.
But most of all, the Taliban have consistently and repeatedly perpetrated intentional violence against civilians as a way to terrorize the population, weaken the Afghan government and pressure U.S. and NATO forces to leave. Bombs murdering civilians praying in mosques, and again at the victims’ funerals, was a common Taliban tactic, as were attacks on schools, universities, hospitals, hotels, markets, buses and courts. These attacks have killed and injured thousands of civilians and destroyed public and private property. Since taking power in August of 2021, the Taliban have not only continued assassinations, detentions and intimidation of journalists, civil society and human rights activists and former government employees, but they have also forcefully evicted minority Shias from their homes and lands.
Afghan leaders, as well as international donors and diplomats, have largely failed to pursue justice and accountability for these crimes. A “Transitional Justice Action Plan” approved by President Hamid Karzai in 2005 was effectively nullified when the Afghan Parliament passed a self-serving amnesty law in 2007, blocking domestic prosecution of their crimes. The Afghanistan Independent Human Rights Commission’s comprehensive “Conflict Mapping Report” of atrocities by all sides of the conflict from 1978 to 2001 was never released because of threats to the authors and a real fear that the commission itself would be punished more than the perpetrators. And when the International Criminal Court first tried to open an investigation into crimes committed since Afghanistan joined the court in 2003, it was quietly opposed by the United States out of concern that the investigation would ask uncomfortable questions about the conduct of U.S. forces in Afghanistan.
The Taliban and Islamic State-Khorasan Province (IS-KP) have thus far been given something of a pass because they conditioned the international community to low expectations. The Taliban’s entire modus operandi was, in effect, to throw out the laws of war and substitute them with their own definition of jihad, where the end of expelling foreign troops justified any means. While some of the Taliban and IS-KP’s senior leaders are sanctioned, this is under anti-terrorism statutes, rather than for war crimes or crimes against humanity. The distinction matters because the former represents a reaction to the threat posed to the international community by the Taliban, but not the suffering of the Taliban’s mostly Afghan victims.
Leveraging the ICC for Afghanistan
In March 2020, the International Criminal Court finally authorized the chief prosecutor to open an investigation into war crimes committed in Afghanistan since July 2002. After the Taliban takeover, the prosecutor announced that the investigation would focus on crimes by the Taliban and IS-KP in recognition of “the gravity, scale and continuing nature of alleged crimes” by these parties.
The handful of cases brought against perpetrators of war crimes in Afghanistan and the ICC investigation are positive steps. But if viewed as a measure of the level of global support for accountability for war crimes over more than four decades in Afghanistan, they represent near-complete apathy by the international community. In contrast, on the sixth day of Russia’s multi-front invasion of Ukraine, 40 countries that are parties to the Rome Statute referred the situation in Ukraine to the ICC.
Two days later, the U.N. Human Rights Council set up a commission to investigate all allegations of human rights violations in the context of Russian aggression in Ukraine, and other investigative efforts are underway by the EU, governments and non-governmental organizations. The Biden administration is reportedly gathering and assessing information about alleged war crimes in Ukraine that could be used in eventual prosecutions, and the State Department has said U.S. intelligence shows evidence of war crimes by Russian troops. Afghan victims are still waiting for this level of attention.
Double Standards of Justice?
Some reasons for the urgent concern and action on behalf of Ukrainians seem apparent and intuitive enough: Russia’s invasion of Ukraine shocked the world; extensive media coverage of the war in real time brought the story to a global audience; and people have been moved by the Ukrainian people’s effective resistance. In contrast, the politicization of war crimes in Afghanistan has contributed to the relative apathy of the international community and the Afghan government to pursue accountability.
But there appears to be more behind the disparity in the international response to Ukraine, and that to Afghanistan and other recent conflicts. The Ukraine conflict fits into a different narrative and arouses different biases than the conflicts of the Global War on Terror that were conducted in non-Western territory, among non-white populations, with mostly Muslim victims and combatants. Western countries were the main architects of post-World War II international humanitarian law and its institutional structure — and these same countries now appear more concerned with violations that fit the circumstances that created the legal norms in the first place: a clear war of aggression committed by a European nation with imperial ambitions against another European nation.
Moreover, a troubling narrative has pervaded the discourse around Global War on Terror conflicts in non-Western countries, which might tell us something else about the apathy toward addressing atrocities in Afghanistan. Efforts to understand and explain the drivers of ethnic conflict at times fostered caricatures of ethnic groups or tribes in primordial and perpetual conflict; the subtle implication was that some cultures or nations have a higher tolerance for violence and human harm or suffering. This perception can perversely absolve the West of the responsibility to take stronger action to hold perpetrators accountable. It also precludes acknowledgment of the ways in which the United States and its mostly Western allies, as parties to the conflict in Afghanistan, have inflicted harm — or have failed to hold accountable Afghan allied forces and leaders who have committed atrocities.
Ukraine, too, faces obstacles to accountability for war crimes, but they are currently approached as obstacles to overcome, rather than excuses to avoid difficult actions. Russia has a veto on the U.N. Security Council and can avoid U.N. sanctions. Ukraine is still a combat zone; yet forensics experts are massing in Bucha to gather evidence while it is fresh. Similar persistence could be effective in Afghanistan.
How to Better Respond to Atrocity Crimes in Afghanistan
The international community should use the positive energy around investigating and prosecuting atrocities in Ukraine to build momentum and resources to investigate all ongoing atrocities with equal vigor. In Afghanistan, an improved U.S. response to atrocity crimes would require the following.
First, the United States and the broader international community should treat their urgent focus on Ukraine atrocities as the rule rather than the exception. Use the platform for discussion of crimes in Ukraine to note that all victims of war atrocities deserve justice. Then, follow up words with financial and political support to investigate the atrocities in Afghanistan, including a U.S. government review of whether war crimes or crimes against humanity occurred. While the United States is not a member of the ICC, the Biden administration has commendably increased cooperation with the court, and it should lean forward on Afghanistan and other cases to share information it has with investigators and prosecutors. Different U.S. government agencies likely have detailed information on Taliban attacks and other mass crimes that could be shared.
Even if trials are not immediately possible for political or security reasons, gathering evidence and documenting crimes provides the best opportunity to achieve full accountability later. Investing in rapid-response documentation efforts is one way to ensure that justice delayed does not become justice denied. The newly appointed U.N. Human Rights Council Special Rapporteur for Afghanistan has a mandate to investigate atrocities but few resources or staff. Amplifying this capacity is a good way to show increased commitment to justice for the victims of Afghan atrocities. Also, the Afghanistan Independent Human Rights Commission should consider releasing its mapping report as one way to refresh the conversation about how to stop recurring cycles of atrocities in different phases of the Afghan conflict, where impunity for one set of crimes has emboldened perpetrators in new phases of the conflict.
In the specific case of the Taliban, it is notable that while Taliban leaders are often labeled “terrorists,” and several are under U.N. and U.S. sanctions because of their role in supporting domestic and international terrorism, they are seldom — if ever — labeled as “war criminals.” Yet the Taliban insurgency relied in large part on war crimes very much like the Russian attacks in Ukraine that are causing horror and outrage.
As the Taliban seek international recognition and legitimacy, accountability for clearly illegal acts must be part of the world’s consideration of the Taliban’s request. Credible evidence of an individual’s responsibility for war crimes or other atrocities should also be grounds for additional sanctions. Not all members of the Taliban group are responsible for war crimes, and indeed the Taliban are not the only group whose members committed atrocities. The key principle of international law and justice is that the individuals who were responsible for perpetrating atrocities should be held individually accountable. Victims of international crimes should also be treated equally — such that Ukrainian, Afghan and other victims have an equal chance of seeing justice.