Panchami Manjunatha
(NLSIU, Bengaluru)
Introduction
The US-led invasion in Afghanistan following Al-Qaeda’s 9/11 attacks led to more than a decade long combat mission which formally ended in 2014. The war largely remained a stalemate for the next six years during which US troops continued to be on the military offensive conducting targeted air strikes against the Taliban revenue sources. In February 2020 following almost a year of direct negotiations, the Taliban signed the Doha agreement which set a timeline for the withdrawal of US troops from Afghanistan. As the US began the process of troop withdrawal; the Taliban resumed its relentless attacks on civilians threatening the survival of the Afghan government. Over 160 extrajudicial killings, 178 arbitrary arrests and detentions, 23 instances of incommunicado detention and 56 incidents of torture were documented. These attacks directly threatened the right of Afghans to live in freedom and safety as guaranteed under Article 3 of the Universal Declaration of Human Rights. The situation became even more dire for the minority communities in the country as their right under of Article 27 of the International Covenant on Civil and Political Rights to enjoy their own culture, and to practice and profess their own religion was routinely violated. One of the minority groups bearing a disproportionate brunt of the humanitarian crisis are the Hazaras.
Hazaras are one of the major ethnic groups in the country, distinguishable by their Asiatic appearance and a distinct Farsi dialect; They practice the Shi’a faith in a predominantly Sunni majority country. The community has been systemically targeted in the mass atrocities perpetrated by the regime. Within the first six months of 2021 alone, the United Nations documented 20 incidents targeting them, resulting in about 500 civilian casualties. Such disproportionate targeting has only increased since the Taliban has consolidated power. The recent bombing of an examination hall in Kabul’s Dasht-e-Barchi area; a predominantly Hazara neighborhood which killed 20 young women sparked global outrage. Subsequently, Hazara women dared death with a public protest holding banners that read “Stop Hazara Genocide”. The protest was not only a testament of the resilience of Hazara women but also a stark reminder to contracting parties under the Genocide convention to break free from the confines of its silence towards the atrocities being committed against the community.
The violence being unleashed on Hazara lives in Afghanistan is neither sporadic nor neutral, it is a systemic attempt to erase their identity and threaten their existence informed by historical discrimination against their ethnicity and religious beliefs. This constitutes genocide under the Convention on the Prevention and Punishment of Genocide 1948. The attack on the Kaaj Educational Centre in Kabul on September 30, 2022, wasn’t the first genocidal act against the community and neither will be the last unless we, as an international community resolve to uphold our obligations under the Convention and international customary law to prevent and punish its occurrence.
Establishing the Hazara Genocide
Article II of the Genocide Convention defines genocide to be constitutive of any of the five acts mentioned thereunder the act when committed with an intent to destroy in whole or part a national, ethnic, racial, or religious group. The systemic killings and other atrocities committed against the Hazaras today satisfy all the conditions to be classified as a genocide under the convention.
Firstly, distinguishable by their Asiatic appearance, Hazaras belong to a distinct ethnic group in Afghanistan. They practice the Shia faith and speak a unique dialect of Farsi known as Hazaragi. They constitute a majority in the central regions of Afghanistan and a minority in the provinces of Kabul and Balkh. The International Criminal Tribunal for Rwanda in The Prosecutor v Georges Anderson Nderubmwe Rutganda has held that while assessing whether a particular group is protected under the convention or not, the court should proceed on a case-to-case basis taking into consideration the relevant socio-political context of the society. Hazaras in Afghanistan are not a “mobile group” that persons enjoin to display individual or political commitments. Rather they constitute a community with a history of self-identification where members have since decades shared a culture of common language and traditions. Thereby, they constitute an ethnic group under the genocide convention.
Secondly, the acts of genocide against the Hazaras have historical origins. In the 19th century; Pashtun ruler Abdur Rahman Khan spearheaded a pogrom against the Hazaras which left almost 60 percent of the community massacred, enslaved and coerced to exile. Mass killings and other atrocities continued in the 20th century when the militias of Ittehad-e-Islami and Jamaat-e-Islami attacked Hazara populated neighbourhoods brutally massacring around a thousand civilians. Loudspeakers of mosques called for Hazaras to convert to Sunni Islam “unless they wanted to be treated like dogs and shot on the spot”. The most serious breach of international humanitarian law that has largely escaped international scrutiny was committed in August 1998 at Mazar-i-Sharif. Taliban after capturing the city from the United Front killed scores of civilians with indiscriminate attacks on residential areas and markets. Systemic searches were initiated for Hazara men with house-to-house investigations. Subsequently over 2000 people were summarily executed. Hazara women and girls were additionally subjected to rape and abduction. Similar mass atrocities continued unabated in the Yakaolang district on January 8, 2001 when Taliban forces detained about 300 Hazara men and staff members of humanitarian organizations to have them killed by a firing squad in public view. These mass killings have been accompanied by systemic killings of the community in recent years. Thousands of Hazaras have been tortured, injured and killed across the country. These attacks have virtually targeted every aspect of their civilian life including educational centres, hospitals, work sites, prayer sites and Hazara neighbourhoods. The wanton killings have often been accompanied with reports of forcible relocation by the Taliban militia. Instances of such forced displacement has increased since the Taliban takeover in August 2021, over 2800 Hazara civilians were evicted from 15 villages. All of these attacks encompass a broad range and constitute as acts of genocide under the convention.
Thirdly, for a genocide to be constituted as an offense under Article I of the convention, the actus reus has to be accompanied by a ‘genocidal intent’. The genocidal intent is dolus specialis; a special intent which can only occur as a dolus directus; a ‘direct intention’ to destroy in whole or part the protected group. This intent can be inferred from the conduct of the perpetrator or from the nature and consequences of long-term systemic attacks against the community.
The targets against Hazaras in civilian spaces such as hospitals, mosques and schools have been accompanied by an explicit declaration by militant organizations like the Taliban, ISIS-K and Daesh to deliberately target and kill Hazaras in particular. Disparaging statements have been issued by the militias after the attack touting Hazaras to be “undisputed infidels and whoever doubts this or the inherent right to kill them are in turn, apostates”. These statements have been to further incite violence suggesting a pattern of exclusively targeting the community. The Taliban has also previously methodically singled out and separated Hazaras from the non-Hazaras before carrying out disparaging attacks and killings on the community. The United Nations Assistance Mission in Afghanistan released a special report in 2016 after a deadly attack on Hazara protestors which had killed at least 80 civilians and injured more than hundreds. The report found that “the attack was a deliberate targeting of persons belonging to a specific ethnic and religious community and the language used advocated hatred and incitement to violence”. The International Criminal Tribunal for Rwanda in The Prosecutor v Jean-Paul Akayesu. has held that genocides are distinct from other crimes in as much as they embody “a special intent which demands that perpetrator clearly seeks to produce the act charged.” The utterances and explicit remarks of the perpetrators throughout history indicates that the systemic killings and disappearance of the Hazara community is not accidental but instead a reflection of a methodically sought out intent to destroy the community “in part” “or whole”. Additionally “systemically directed atrocities against protected groups” are by themselves admittable as evidence of genocidal intent; as the International Criminal Court rightfully identified in Prosecutor v Omar Hassan Ahmed Al-Bashir.
Duty to prevent Genocide & Way Forward
Article 1 of the Genocide Convention places an obligation on contracting parties to prevent genocide. The International Court of Justice interpreted the ‘Duty to prevent’ in the case of Bosnia v Serbia to mean that every contracting party to the convention incurs responsibility to employ all reasonably available means to prevent genocide.
Within the broad spectrum of obligation under Article 1 of the Convention the minimum legal duty to prevent genocide is to identify and name its occurrence. It is an important verbal intervention towards denouncing the nonchalance of its perpetrators. The strengthening of global awareness generates significant ameliorative effects in exemplifying calls for accountability. Richard Bennett, Special Rapporteur on the situation in Afghanistan recently expressed concern about the descent to authoritarianism in the country and persecution of minorities through widespread, systemic attacks. Speakers at the Human Rights Council also pledged unwavering commitment to the protection of human rights in the country but fell short in recognizing the ‘systemic attacks’ against Hazaras to be constitutive of acts of Genocide.
Moving forward, the recognition of genocide should pave way for the establishment a robust, independent, and impartial U.N mandated investigation mechanism to document and preserve evidence of these genocidal acts. The Human Rights Council on 7th October 2022 adopted resolutions which strengthened the mandate of the Special Rapporteur on the human rights situation and abuses in Afghanistan. The UN Special Rapporteur has been tasked to report and monitor human rights situation in the country and provide periodic suggestions to improve its status. They operate in a personal capacity with limited staff and funding. Nasir Ahmad Andisha, the Permanent representative of Afghanistan to the United Nations Office at Geneva has also remarked that the capacity, staff and resources of the United Nations Assistance Mission in Afghanistan are woefully inadequate to document evidence. Given the resource constraints of both these bodies, it is imperative to establish an independent U.N investigative mechanism to document and preserve evidence of genocidal acts against the Hazaras.
Accountability for atrocities in Afghan courts remains bleak given the breakdown of the rule of law. The World Justice Project notes that there is a high perception of impunity in the country and citizens have minimal levels of confidence in the functioning of the criminal justice system. Experts have additionally flagged concerns regarding the lack of proper investigation methods, lack of prosecutorial independence and corruption ailing the judiciary. However, the principle of universal jurisdiction allows national courts of third-party countries to prosecute international crimes occurring abroad, “even in the absence of any link between the crime committed and the prosecuting state.” Recently, the Higher Regional Court in Frankfurt Germany convicted Taha AI J for genocide crimes against Yazidis in Iraq. Seven years after systemic targeted extermination and mass atrocities, the Yazidis achieved some degree of accountability. Universal jurisdiction cases have previously been instituted in courts of Netherlands and Germany for abuses committed by officials prior to the advent of Taliban in 1990s. There is also an ongoing trial against a Taliban defendant in a German court for his involvement in war crimes. The principle thereby, emboldens a possibility of providing victims with a practical possibility of justice in foreign courts. While prospects of justice for Hazaras remains distant- it remains fundamental that we urgently facilitate the collection and preservation of evidence of the genocidal acts committed. Doing so is a commitment to protect and safeguard the faintest possibility of justice in future criminal prosecutions under the convention.
Conclusion
Contracting parties to the convention have a strong obligation to act in a “timely and decisive manner” to protect communities from genocidal acts under the convention. The Taliban which wields power in the country today has proven to be woefully inadequate to generate any form of accountability towards these crimes. Any hope for accountability and justice for the Hazaras thereby, rests heavily on the collective conscience of the international community.