AFGHANISTAN- THE MIRACLES- 10 years b4 and after- God bless our Nato troops and God bless Afghan troops and cops.... and the beautiful incredible people of Afghanistan... we have been here since 2001.... and you have amazed us and we love u so much.... Freedom roars in Afghanistan... and nobody can take that away.... April 5, 2014 U SHOWED THE WORLD RAW AND BEAUTIFUL COURAGE.... and our Nato troops and families of the nations wept with pride as did Afghan troops, cops and Afghans... old momma nova
like millions of women around the world.... we will always love Abdullah Abdullah... u walked and stayed among the Afghan women and Children and youth... sharing love of sports, music, art, education and books over bombs.... and instilling respect among all the tribes of their incredible heritage and enormous history... imho
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To our troops on the ground and ordinary Afghans.... Abdullah Abdullah will always be the winner in our hearts- Karzai's/UN/IMF/Obama's puppet Ghani - they win again..... but the Islamic Republic of Afghanistan people are strong and beautiful....and a whole new and better world.... God loves Afghans... and so do Canadians...Abdullah Abdullah's bloodlines bleed in2 each and every tribe of Afghans... and Abdullah stuck it out with the people of Afghanistan.... women, kids, youth and elders love this good man... and the agreement sounds fair and good... God loves Afghanistan and the Afghan people.... so does Canada and Canadians... our troops were inspired by the raw courage, smarts and goodness of a beautiful Muslim people.... they always found wonderful things 2 say and do about Afghanistan... hugs and love 2 u and congratulations... and your Afghan troops and cops are magnificant... and our Nato troops are so proud of u and all ur accomplishments... u make the world proud... and Freedom roars in Afghanistan.... on this 21 September 2014
Candidates Sign National Unity Government Agreement
Sunday, 21 September 2014 12:33 Last Updated on Sunday, 21 September 2014 18:08 Written by TOLOnews.com
After a prolonged electoral stalemate, presidential candidates Abdullah Abdullah and Ashraf Ghani Ahmadzai finally signed the National Unity Government agreement at the Presidential Palace on Sunday noon.
President Hamid Karzai, prominent political figures and members of both electoral teams were present at the ceremony.
Speaking at the event, President Karzai congratulated the candidates on signing the agreement, calling it an "Afghan agreement."
"We hope that you [the candidates] can continue the things that the current government started," Karzai added.
Soon after the agreement was signed, the White House, in a press release, applauded the formation of the national unity government.
"Signing this political agreement helps bring closure to Afghanistan's political crisis, and restores confidence in the way forward. We support this agreement and stand ready to work with the next administration to ensure its success," the statement read. "Reaching this agreement required difficult choices, partnership and compromise on the part of both candidates, and the outcome of their talks prioritizes the recognized needs of the Afghan nation ahead of politics or individual power," it added.
This is while the Independent Election Commission (IEC) officials is expected to announce the final election results later today. Reports indicate that the announcement will not declare any "winners or losers."
Click here for full agreement
---------------
AGREED FINAL ENGLISH TEXT, 20 SEPTEMBER 2014
Agreement between the Two Campaign Teams Regarding the
Structure of the National Unity Government
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Abdullah Abdullah and the Afghan people... u honour our troops and urselves... we love u...and Ghani- both of u will make Afghanistan soar... and quite seriously... Karzai 4 everything did a good job in a hard world. God bless the women and children of Afghanistan.
- Times of India - 6 hours agoAfghanistan's presidential election candidates Abdullah Abdullah(left) and Ashraf Ghani Ahmadzai hug after signing the power-sharing deal at the presidential palace in Kabul, on September 21, 2014. ... (Reuters photo)
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U.S. hails Abdullah-Ghani agreement on formation of Afghan unity government
WASHINGTON, Sept. 21 (KUNA) -- The United States applauds presidential candidates Abdullah Abdullah and Ashraf Ghani for signing an agreement on the formation of an Afghan government of national unity, White House press secretary Josh Earnest said on Sunday.
"Signing this political agreement helps bring closure to Afghanistan's political crisis, and restores confidence in the way forward," Earnest said in a statement released by the White House.
"We support this agreement and stand ready to work with the next administration to ensure its success." As the two Afghan candidates recognized in their August 8 Joint Declaration, the people of Afghanistan deserve an effective and legitimate government to realize a better future for their country, Earnest said.
"Millions of Afghans braved insecurity and threats to vote for Dr. Abdullah and Dr. Ghani, and this agreement respects the Afghan people's collective determination," the statement said.
"Reaching this agreement required difficult choices, partnership and compromise on the part of both candidates, and the outcome of their talks prioritizes the recognized needs of the Afghan nation ahead of politics or individual power." The agreement marks an important opportunity for unity and increased stability in Afghanistan, he said.
"We continue to call on all Afghans -- including political, religious and civil society leaders -- to support this agreement and to come together in calling for cooperation and calm," it said.
Respect for the democratic process is the only viable path for Afghanistan to continue its progress toward a secure and stable future, and ensure the continued support of the United States and the international community, Earnest said.
"We look forward to resolution of the electoral process with the announcement of the election outcome, the inauguration of a new President and appointment of a Chief Executive, and the conclusion of the Bilateral Security Agreement and NATO Status Of Forces Agreement that will enable and reinforce our strategic partnership and our commitment to support a future of stability for Afghanistan," he said.
------------------
News - Afghanistan
IEC Announces Ghani as President
Sunday, 21 September 2014 17:47 Last Updated on Sunday, 21 September 2014 17:53 Written by TOLOnews.com
At a press conference on Sunday evening, the Independent Election Commission (IEC) announced the election "outcomes," declaring Ashraf Ghani Ahmadzai as the new president of the country.
"We congratulate Ahsraf Ghani Ahmadzai as the new president and Abdullah Abdullah as the chief executive. We wish them both success," IEC Chairman Ahmad Yusuf Nooristani said.
Nooristani added that the election results--figures and data-- have been revealed to the two electoral camps only.
Reports indicate that the decision to announce the election "outcomes" without declaring "any winners or losers" was a major part of Abdullah and Ghani's agreement on the National Unity Government.
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Dr. Abdullah is the true winner of presidential elections: Noor
By Khaama Press - Wed Sep 17 2014, 9:00 pm
Ata Mohammad Noor said Wednesday that presidential runner Dr. Abdullah Abdullah is real winner of both rounds of presidential elections.
Noor is an influential political figure being a senior member of Jamiat-e-Islami party and current governor of northern Balkh province of Afghanistan, who has remained a close ally of Dr. Abdullah in presidential elections.
In an online statement, Noor said that Dr. Abdullah deserves to be the president of Afghanistan, insisting that they will defend from the rights of Dr. Abdullah as he is true winner of election.
He warned that Afghanistan is close to witness the so called widespread ‘green and orange’ anti-fraud movements as the rival teams are not prepared to conclude a deal on unity government.
Noor accused the electoral bodies for being involved in massive fraud in favour of Dr. Abdullah’s team during the presidential elections.
He said Dr. Abdullah’s rival team is looking to ignore talks on unity government deal and are trying to gain power through fraudulent votes.
This comes as Noor called on his supporters earlier this month to prepare for widespread anti-fraud movements as the Afghan election was once again put at a risk of an impasse after Dr. Abdullah’s camp warned to withdraw from talks and boycott the audit process.
The latest remarks by Noor comes as the two candidates were due to meet today to conclude an agreement on a number of sticky points regarding the formation of a national unity government. However, the negotiations did not take place due to unknown reasons.
Release of final vote results, share of power and authorities of the chief executive are said to be the main reasons prohibiting the conclusion of the controversial electoral process.
http://www.khaama.com/dr-abdullah-is-the-true-winner-of-presidential-elections-noor-6703
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Afghan election commission acknowledges 'massive' vote fraud
Afghanistan News.Net Tuesday 16th September, 2014
Afghanistan's June 14 presidential runoff was marred by large-scale fraud, the Independent Electoral Commission has said, announcing that it was invalidating 16 percent of the ballots cast.
"There was massive fraud perpetrated by the security forces, governors and members of the IEC. Undoubtedly, much of the fraud happened in coordination with IEC employees," Commissioner Azizullah Bakhtyari said in comments broadcast by Tolo television Monday.
The IEC's decision to throw out ballots from 1,028 polling stations, representing 16 percent of the total, followed an agreement between candidates Ashraf Ghani and Abdullah Abdullah for an audit of all 8.1 million ballots cast.
Bakhtyari said he hoped the recount would restore Afghan voters' trust in the electoral process and he vowed that those involved in the fraud would be prosecuted.
The recount started July 17, but the operation has been halted several times amid disagreement about the criteria for determining whether a ballot was valid.
Abdullah, who finished on top in April's first round of voting, refused to recognise preliminary runoff results that showed Ghani winning with 56.4 percent of the vote.
Denouncing what he described as "fraud on an industrial scale", Abdullah talked about forming a parallel government.
Since then, US Secretary of State John Kerry has visited Kabul twice. He managed to elicit pledges from Abdullah and Ghani to form a unity government no matter which man emerges as the next president.
- See more at: http://www.afghanistannews.net/index.php/sid/225745427#sthash.j9UtdNgl.dpuf
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An Afghan confectionery worker makes traditional sweets at a factory in Ghazni province on September 14 2014.
albawaba - Tuesday 16th September, 2014
An Afghan confectionery worker makes traditional sweets at a factory in Ghazni province on September 14, 2014. Afghanistan's economy has improved significantly since the fall of the Taliban ...
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May 23 2010- Afghanistan history and culture
Northwestern University Journal of International Human Rights
FREEDOM OR THEOCRACY: CONSTITUTIONALISM IN AFGHANISTAN AND IRAQ
Hannibal Travis*
pdf version
I.Introduction
II.Historical Context of the Rise of the Taliban Theocracy
A. Pre-Constitutional Afghanistan
B. Constitutional Monarchy
C. Socialist and Communist Dictatorship
D. Fundamentalist Rule
III.Rise and Fall of the Taliban Theocracy
A. The Atrocities and Tyranny of the Taliban
B. Building a New Afghan Government
C. Warlord Theocracy and Human Rights Violations
IV.The New Afghan Constitution
A. The Constitution Drafting Process
B. The Ideological Battle for the Future of Afghanistan
C. The Afghan Constitution: Freedom or Theocracy?
V.Test Cases for Theocracy under the Sixth Afghan Constitution
A. Outlawing Secular Political Parties
B. Curtailing Political Debate
C. Persecuting Religious Minorities
D. Enforcing Medieval Punishments
E. Discriminating Against Women
VI.An Iraqi Theocracy?
A. From the Ba'ath to a Religious State
B. Iraqi Women Face Intensified Discrimination
C. Iraqi Christians Flee Fundamentalist Atrocities
VII.Conclusion
"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
I. Introduction
¶ 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.
II. Historical Context of the
Rise of the Taliban Theocracy
A. Pre-Constitutional 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
B. Constitutional Monarchy
¶ 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
C. Socialist and Communist Dictatorship
¶ 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
D. Fundamentalist Rule
¶ 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
III. Rise and Fall of the
Taliban Theocracy
A. The Atrocities and Tyranny of the Taliban
¶ 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
B. Building a New Afghan Government
¶ 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
C. Warlord Theocracy and Human Rights Violations
¶ 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
IV. The New Afghan
Constitution
A. The Constitution Drafting Process
¶ 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
B. The Ideological Battle for the Future of Afghanistan
¶ 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
C. The Afghan Constitution: Freedom or Theocracy?
¶ 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
V. Test Cases for Theocracy
under the Sixth Afghan Constitution
¶ 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 and secularists either to suffer repression or to take up
arms against their rulers, which massacred them in return. In the near future,
Afghans may be driven into a similar bind by theocratic policies promulgated
under cover of constitutional legitimacy. Whether this happens may depend on
the success of the warlords and the fundamentalists who dominate the Afghan
judiciary in imposing fundamentalist policies that are as damaging to human
rights as those that provoke so much opposition in neighboring Iran that mass
killings and systematic torture have been deemed necessary to quell it.
A. Outlawing Secular Political Parties
¶ 91 A significant
challenge to Afghans, especially women, seeking to implement their right to
participate in parliamentary elections will be possible legal restrictions that
could be used to silence political parties represent ethnic or religious
minorities, secularists, or women. The new constitution bans political parties
whose aims are "contrary to the principles of [the] sacred religion of
Islam," as well as those that primarily appeal to members of an underrepresented
ethnic, linguistic or religious group.391 Afghan authorities understand the
"principles" of Islam to include precepts of Sharia law "agreed
upon by the major schools of jurisprudence (fiqh)"; as a result, any
political party that "calls for full equality before the law of women and
men could by this reasoning be defined as contrary to Islamic
principles."392 A key test case for the constitution will therefore be
whether the political parties clause will be misused in this way.
B. Curtailing Political Debate
¶ 92 Another important
test of the Afghan constitution's ability to provide for peaceful and
democratic change will be whether it protects freedom of speech and debate. The
new constitution restricts free expression that intrudes upon religious
sensitivities.393 A prominent member of Afghanistan's Supreme Court has
declared that: "In the constitution there is an article that says things
that go against Islam are not allowed."394 The Supreme Court has ordered
two prominent journalists and the former Minister of Women's Affairs to stand
trial on spurious charges of blasphemy after they criticized Afghanistan's
warlords.395 Blasphemy is still an offense that is potentially subject to the
death penalty under Afghan penal laws, and fundamentalist Afghans frequently
issue death threats against people charged with it.396 The Supreme Court
actually sentenced the two reporters to death, and a female writer was also
sentenced to be executed, although none of these sentences has been carried out
yet.397 Such prosecutions could represent a serious threat to the development
of Afghan democracy.
C. Persecuting Religious Minorities
¶ 93 Particularly under
the Taliban but throughout Afghan history, the country's rulers have oppressed
and murdered religious minorities, especially Shia Muslims among the Hazaras.
The new constitution provides that "[f]ollowers of other religions are
free to exercise their faith and perform their religious rites within the
limits of the provisions of law."398 But as with many other aspects of the
constitution, whether and to what extent religious minorities will be protected
depends on what the "provisions of law" limiting religious freedom
may be. The Chief Justice of the Supreme Court has declared that: "The
Islamic government, according to sharia, is bound to punish those who get
involved in anti-Islamic activities.... We can punish them for propagating
other religions - such as threaten them, expel them and, as a last resort,
execute them, but only with evidence."399 The Chief Justice believes that
there are three ways to deal with adherents of minority religions: "One,
is you politely invite him to join the Muslim faith. Two, if he refuses, insist
that they obey the laws of Islam. And three, if he rejects that, [the Chief
Justice] says, 'I have no choice' and points to the sword above his desk, and
says, 'behead him.'"400 The Chief Justice has also warned that anyone who
preaches or describes Christianity to Afghans may face the death penalty.401 If
these statements are translated into legal doctrine, the constitution's
protection of religious freedom may prove to be very weak.
D. Enforcing Medieval Punishments
1. Stoning for Adultery
¶ 94 The Chief Justice
of the Afghan Supreme Court has made clear that he wants to see
"adulterers whipped or stoned to death, the hands of robbers amputated and
murderers publicly executed."402 Although the Old Testament of the Bible
contemplates the stoning of adulterers and other criminals, the Qur'an does
not, and most modern states have abandoned the practice.403 Resuming the
stoning of adulterers, as a local district court did when it ordered an Afghan
woman to be stoned to death in late April 2005, would make Afghanistan's laws
even more theocratic than those of neighboring Iran, which abandoned the
stoning of adulterers in 2002 after sentencing two women to be stoned to death
the previous year.404 President Karzai has repeatedly insisted that Afghanistan
will be governed by Sharia law, which many Afghans understand to provide for
stoning in cases of adultery.405 Aides to Karzai have insisted that stoning
will not be resumed on President Karzai's watch, and the Constitution provides
the President with the authority to reduce and pardon penalties, but only
"in accordance with law."406 But Karzai does not necessarily control
what goes on in all of Afghanistan, and there is no guarantee that Karzai will
always be President to veto court-ordered stonings. And because the Supreme
Court is ultimately vested with the power to interpret the law and verify
compliance with Islam, the Chief Justice may override a Karzai pardon in an
emotionally or politically charged case.407 A renegade warlord, fundamentalist
politician, or Supreme Court power grab could therefore return Afghanistan to
the days of torturing and killing women under the pretext of piety.
2. Amputating Hands for
Theft
¶ 95 The Chief Justice
has pronounced that "a hand being chopped for theft" is necessary for
"obvious and justified reasons - ridding society of crime."408 Even
President Karzai has expressed qualified support for the idea, noting that
there are "strict rules" governing such punishments and it "is
extremely, extremely difficult in the real interpretation of Sharia to cut off
somebody's hand. The hand-cutting part is only applicable, only applicable, if
the society has been provided with all the means of work and earning and making
a life."409 This is somewhat reassuring, at least in those cases where
President Karzai remains in control and convinced that "all the means of
work" were not available to a defendant. But warlords, the Supreme Court,
and future presidents may not be so gentle. Although amputation may seem
preferable to some compared to life imprisonment under constant threat of rape,
the sentence meted out to petty thieves in the U.S. under some
circumstances,410 its revival would raise serious questions about Afghanistan's
compliance with its international treaty obligations.411
E. Discriminating Against Women
¶ 96 Virtually every world religion elevates men to
the position of lordship over women, placing most forms of religious
fundamentalism on a collision course with equal rights and full participation
by all citizens in a democratic government.412 Like their fundamentalist
counterparts in other nations, many powerful leaders in post-Taliban
Afghanistan have a record of holding Afghan women to a far higher standard of
pious conduct than men are expected to obey. Afghan women must shoulder most of
the burden of preventing lust and extramarital sex, by donning burqas and
denying themselves access to most public spaces.413 They must submit to
marriages against their will and not of their choosing, even under
circumstances in which men would be free to refuse. The continuation of such
practices will prove all the promises of equal rights for Afghan women before
the law to be illusory.
1. The Burqa and Forced
Covering
¶ 97 All of us remember
how the U.S. condemned the burqa as the ultimate symbol of the oppression of
women under the Taliban and the terrorists' ideology of "hate." A
State Department press release issued during the Afghan war called the burqa an
"infamous and intolerable" form of torturing and imprisoning women in
a "voluminous, tent-like full-body outer garment that covers [women] from
head to toe."414 Despite all the pain and discomfort it may cause, the
allies of the U.S. in Afghanistan are still requiring women under their power
to wear the burqa. Although American television gleefully reported that Afghan
women had thrown out their burqas when the Taliban left,415 Afghan warlords are
still requiring them to wear it.416 Most women still wear the burqa, not so
much out of fidelity to their religious faith and the requirements of the
Qur'an - which does not even mention veils, let alone burqas - but because they
are forced to do so by the dictate of local warlords or the fear of marauding
militiamen.417 "In post-Taliban Afghanistan, women have been raped for
daring to think they could now go without the burqa."418 Future Afghan
governments will decide whether the burqa is part of the "beliefs and
provisions of Islam," or on the contrary is incompatible not only with
Islam but with the international human rights treaties to which Afghanistan is
a party. The issue will likely be resolved by the Afghan courts, which extreme
fundamentalists like Sayyaf and his allies on the Supreme Court look poised to
control for the indefinite future.419
2. Involuntary Seclusion
of Women
¶ 98 Women in Afghan
society remain burdened by laws and practices that keep them out of the public
sphere. Religious leaders with no legal training act as judges, imprisoning
young people for such crimes as dating, falling in love, or marrying without
parental permission.420 A woman may commit a crime simply by having a
conversation or being seen in public with an unrelated man.421 The former
governor of Herat announced on radio and television that the police and
Department of Vice and Virtue "must stop men and women who are unmarried
from walking together on the street" and "are obliged to beat
them."422 This iron curtain of male-female segregation is hardly
compatible with the full participation of women in a "broad-based and
representational" government, which the U.S. has defined to include
women.423
3. Forced and Underage
Marriage
¶ 99 More than two years
after the Taliban fell, Afghan women are still being denied their rights in
marriage and to divorce under both international and Islamic law, much more
often than women in many other Islamic countries are. In July 2002, for
example, almost 800 women per day applied for divorces to the judicial
authorities of the Afghan government.424 But instead of being granted their
divorces, some were imprisoned, including a dozen women subjected to forced
marriages under the Taliban.425 The judiciary continues to apply its version of
the Hanafi school of Islamic law to deny women the right to divorce under most
circumstances, granting relief from forced marriages only in "rare"
cases.426 Women who run away from home without their husband's permission can
be sentenced to several years in prison.427
¶ 100 Teenage girls are
still routinely forced into marriages with men they have never met, often much
older than they are. About 50% of Afghanistan's marriages are compulsory.428
Afghan families often sell their daughters for excessive dowries equivalent to
thousands of dollars, in a country where the average income is about $200.429
Many young women have resorted to setting themselves on fire to escape this
contemporary form of slavery.430 Over 100 Afghan women died of self-immolation
in the first ten months of 2004.431 Afghanistan's high rate of forced marriages
is fueling this unprecedented epidemic of fiery suicides.432 Although President
Karzai has declared that there "can't be any worse oppression" than
forced marriage, the Afghan government contributes to it by imprisoning girls
and women married against their will, if and when they flee.433 Girls and women
have no legal alternative to suicide, as they are arrested and jailed for
fleeing child marriages or abusive families.434 A jailer in Kabul told a
reporter that: "If a girl in Afghanistan runs off with a boy or tries to
escape from her family, that is a crime."435 Moreover, Afghan tribal
councils continue to resolve criminal cases "by ordering that the alleged
perpetrator provide the family of the alleged victim with a young girl or
girls, usually below the legal marriage age, in order to compensate for the alleged
crime."436 The girl "is then forcibly married to a male member of the
victim's family."437 Thus, the Afghan criminal justice system "is
more likely to violate the rights of women than to protect and uphold
them."438 The U.S. has tolerated these policies of the government and
warlords it funds and helped gain power, even though it cited the "high
rates of depression and suicide among Afghan women" as a reason to go to
war against the Taliban.439
¶ 101 International law
recognizes forced marriage as a form of slavery to which Afghanistan must put
an end if it aspires to membership in the community of civilized nations. For
example, a treaty that Afghanistan signed on to in 1966440 obliged States
parties to abolish slave-like practices in which a "woman, without the
right to refuse, is promised or given in marriage on payment of a consideration
in money or in kind to her parents, guardian, family or any person...."441
Likewise, the Universal Declaration of Human Rights states that women and men have
equal rights before, during and after marriage,442 and that "[m]arriage
shall be entered into only with the free and full consent of the intending
spouse."443 Finally, Afghanistan's international obligations under the
Convention on the Elimination of Discrimination Against Women are to guarantee
that women have "the right to choose a spouse freely" and enjoy
"the same rights and responsibilities in marriage and at the time of
termination of marriage."444
¶ 102 Marriages of very
young Afghan girls are a particularly grave problem. Young girls are still
routinely promised in marriage to bring in an income to a poor family, or to
satisfy a financial or "blood" debt.445 As a consequence, many young
girls are pressured into marriages in their early teens and even as early as
seven.446 The practice is not restricted to Afghanistan, but is common in rural
parts of India and Africa.447
¶ 103 The minimum
marriageable age in Afghanistan is 16 by statute.448 However, the courts refuse
to enforce this law.449 Nearly two years after the Taliban fell, Amnesty
International reported one case in which a court refused to take any action on
a criminal complaint against a 48 year old to whom an eight-year old girl had
been forcibly married.450 This court may simply have been implementing
government policy, for the Deputy Chief Justice of the Afghan Supreme Court has
claimed that the "only source of legislation in Afghanistan is Islamic
shariah law,"451 which some jurists interpret to allow a "father to
contract binding marriages for both his sons and his daughters so long as they
are minors (up to the age of nine or onset of menstruation for girls and
puberty, up to age fifteen at the latest, for boys)."452 Although some
jurists maintain that a girl may repudiate such a marriage upon attaining
puberty by application to the court, social conditions tend to vitiate this
right.453
¶ 104 International law
condemns child marriages in the same breath as other forced marriages. Very
young girls cannot be said to give their free and full consent to a marriage as
required by the Universal Declaration of Human Rights.454 Theoretically,
therefore, Afghan courts could find further support in that treaty for
enforcing their domestic law against child marriages.455 But the new
constitution's deference to religious law make it more likely that the courts
will rule that the prohibitions on child marriage in international law and
Afghan statutes are invalid because they contradict a fundamentalist view of
the "beliefs and provisions" of Islam.456 Such a ruling would further
diminish Afghan girls' and women's prospects for true "liberation."
VI. An Iraqi Theocracy?
¶ 105 Despite many
differences, there are important similarities between the situations in Iraq
and Afghanistan.457 Both Iraq and Afghanistan are majority Muslim countries,
with populations of similar sizes, occupied by the U.S. and its coalition
allies as a result of their complicity in international terrorism.458 As in
Afghanistan, regime change in Iraq has ended the rule of a vicious tyrant. Like
Mullah Omar, Saddam Hussein presided over mass murder on a systematic basis
(although in Iraq this occurred with support from most of the U.N. Security
Council, not under conditions of international isolation as in Afghanistan).
And similar struggles are underway in both countries between religious
fundamentalists, who would implement a medieval version of religious law, and
reformers who seek to modernize and secularize their society so as to guarantee
the rights of women and ethnic or religious minorities.
A. From the Ba'ath to a Religious State
¶ 106 Any discussion of
human rights in Iraq's recent history must begin with the crimes committed by
Saddam Hussein over the past few decades with the cooperation and support of
several foreign powers. Saddam's Ba'ath Arab Socialist party seized power in a
U.S.-backed coup in 1963,459 and summarily executed thousands of Iraqi
intellectuals identified as suspected leftists on lists provided by the CIA.460
After taking the helm of the Ba'ath party in 1979, Saddam launched two wars,
against Iran in 1979 and Kuwait in 1990, which claimed the lives of more than
600,000 Iraqis.461 In the late 1980s and early 1990s, Saddam's military put
down Iranian-backed rebellions from the Kurdish and Shi'a communities in
Iraq,462 killing 100,000 to 200,000 people.463 In order to commit these crimes,
Saddam's government secured massive financial and military support from an
array of foreign powers, including the Soviet Union, France, China, Saudi
Arabia, Kuwait, and the U.S.464
¶ 107 Despite the
disastrous wars, rebellions, and crimes against humanity under Saddam's rule,
Iraq's population increased by almost five million people from 1980 to 1990.465
Life expectancy increased by almost 14 years on average between 1975 and 1990,
as the government helped ensure that 90% of the population had access to safe
drinking water and modern facilities for sanitation and health care.466 The
1991 Gulf War reversed much of this progress, as the U.S. deliberately bombed
water purification, sewage, and electricity facilities,467 and lobbied for
comprehensive economic sanctions to be imposed by the U.N. Security Council
which eventually led to the deaths of one million Iraqis,468 including 500,000
Iraqi children.469
¶ 108 Expressing outrage
at Iraq's poor human rights record,470 floating questionable assertions about
the threat its unconventional weapons and ties to al Qaeda posed to
international peace and security,471 and rejecting Iraq's offers to allow U.S.
military access to suspected weapons sites and to hold free elections,472 the
Bush administration decided to invade the country and depose Saddam Hussein.473
The war claimed the lives of up to 60,000 Iraqi soldiers,474 along with about
100,000 innocent Iraqi civilians as of September 2004.475 The Iraqi death rate
more than doubled,476 as the rates of disease, malnutrition, and infant
mortality soared.477 War and looting destroyed Iraq's hospitals and water
infrastructure along with most public buildings.478 The unemployment rate for
Iraqis doubled to 60 percent,479 the remains of the water and sanitation
systems collapsed,480 and more than 3,000 schools were bombed, looted, or
otherwise destroyed.481 Hundreds of thousands of people became homeless.482
¶ 109 The Iraqi
government appointed by the multinational forces enshrined religion as the
basis of the new Iraq. After the end of "major combat operations,"
the U.S. established a Coalition Provisional Authority (CPA) and an Iraqi
Governing Council (IGC) to manage the country. The U.S. handed 60% of the seats
on the Iraqi Governing Council to Shia Muslims with long-standing ties to the
theocrats in Iran. These council members subsequently used their power to
promulgate fundamentalist laws for the country, repealing more secular laws
guaranteeing women's equality that had been enforced by the previous regime.483
Article 7 of Transitional Administrative Law (TAL), which is intended to serve
as an interim Iraqi constitution until a more permanent one can be ratified in
late 2005,484 states that: "Islam is the official religion of the State
and is to be considered a source of legislation. No law that contradicts the
universally agreed tenets of Islam, the principles of democracy, or the rights
cited in Chapter Two of this Law may be enacted during the transitional
period."485 According to a prominent commentator on religious freedom,
every Arab state whose constitution establishes an official religion in this
way has an abysmal record of respecting civil and political rights; such
clauses are used to implement "state-coerced Islamization, discrimination
and even state-sanctioned persecution of religious minorities, as, for example,
in Iran, Saudi Arabia and Sudan."486 The clause mandating compliance with
all laws with the requirements of Islam goes beyond what previous Iraqi
constitutions contemplated in fusing religion and the state, and hands
religious fundamentalists veto power over the political development of the
country.487 In effect, it establishes religious scholars as the authorities on
what Iraq's supreme law provides, outlaws secular government, and threatens to
create a theocracy in Iraq.488
¶ 110 The public
statements of the Iraqi fundamentalist leaders most likely to implement the TAL
confirm that its provisions make theocracy a distinct possibility. Iraq's
interim prime minister virtually declared allegiance to Ayatollah Ali Hussein
al-Sistani, describing him as standing at the "forefront" of all of
the country's other religious authorities on the occasion of the handover of
sovereignty from the CPA.489 The alliance of Ayatollah Sistani and the Supreme
Council for the Islamic Revolution in Iraq resembles the movement of Ayatollah
Khomeini of Iran in that it demands that fundamentalist religious law be used
to deny equal rights to women and religious minorities.490 The alliance
receives large donations from the spiritual capital of Iran and uses them to
maintain private armies, along with a website detailing the characteristics of
the planned fundamentalist state.491 Although Ayatollah Sistani has promised to
be less active in politics than Ayatollah Khomeini believed that clerics should
be, the latter also made reassuring statements to the West about democracy,
religious freedom, and women's rights, behaving quite differently once securely
in power.492 The Iraqi Ayatollahs have been even less moderate in tone than
Khomeini, in some respects493; they openly "'use religion in order to
assume power,'" in the words of the former head of the IGC.494
¶ 111 In the January
2005 election, a coalition of Iraqi Shia fundamentalist parties claimed about
half of all votes, and promptly declared that religious law would be
implemented.495 The coalition will control more than 130 seats in the
275-member Iraqi National Assembly charged with drafting a permanent
constitution.496 Its architect and inspiration, Ayatollah Sistani, has pledged
that the coalition will insist upon making Islam the sole source of legislation
in the permanent constitution and prohibiting any law that is contrary to his
version of Islam.497 The close ties of leading Iraqi politicians to the Iranian
theocracy do not bode well for Iraqi freedom. With opposition to the Iranian
government's most conservative religious policies reportedly widespread,498
some elements in the country's leadership have resorted to torturing and
executing thousands to maintain power.499 Should Iraq follow the lead of its
larger neighbor, a similar drama may play out for decades to come, as it has in
many other theocracies known to history.
B. Iraqi Women Face Intensified Discrimination
¶ 112 Although like the
Taliban, Saddam Hussein's government implemented extremely brutal policies
against women, it also had a better record on women's equality in some respects
than some of its Arab neighbors. The Iraqi Ba'ath party started out as a more
secular, forward-looking party towards women, and by 2002 Iraqi women could
exercise more control over their mode of dress, education, employment, and
entertainment than in neighboring countries such as Saudi Arabia, Iran, or
Kuwait.500 Iraqi women made up 38% of Iraq's doctors,501 enrolled in primary
school 50% more often than Saudi women,502 and worked as teachers and professors
50% more often than Saudi women.503 But after suffering a crisis of legitimacy
after the Gulf War in 1991, Saddam's regime turned to violent anti-woman
policies in an effort to build support for the regime among religious and
tribal conservatives. Iraq amended its Penal Code to exempt men who murder
female family members in the name of family honor, after which Iraqi men
murdered over 4,000 female relatives.504 Under the pretext of ending
prostitution, pro-government paramilitary Fedayeen killed over 200 women tied
to the political opposition.505
¶ 113 Women suffered
along with many other Iraqis as a result of the war to oust Saddam. A breakdown
of law and order after the fall of Iraq's government resulted in the rapes of
hundreds of Iraqi women.506 Violent deaths of men, women and children
tripled.507 Young girls are being sold into slavery.508 Many women are too
afraid even to leave their homes, let alone participate actively in developing
a secular government that respects the equal rights of its citizens.509
¶ 114 Women's minimal
representation in the post-Saddam Hussein Iraqi government has proved
inadequate to protect their interests. Although women make up more than 50% of
Iraq's population, the Bush administration gave them only two out of 25 seats
on the IGC, less than 10% of the available seats.510 Despite many trained Iraqi
women lawyers, only 15 out of the thousands of people given judgeships by the
CPA were women.511 Not one of the Iraqi lawyers hand-picked by the U.S. to
draft a new constitution was a woman,512 a record of total exclusion that was
all the more surprising because Afghanistan, with a far worse record on women's
participation in public life, had many women involved in its constitutional
drafting process.
¶ 115 Iraqi women judges and lawyers have decried
the increased influence of religious fundamentalists on the IGC and other Iraqi
institutions. They expressed outrage when the IGC announced reforms to Iraqi
family law that would refuse women the right to divorce in most cases and
automatically deny mothers custody of children who reached the age of religious
instruction (nine years old).513 They objected that the new laws would
"allow anyone who calls himself a cleric to open an Islamic court in his
house and decide about who can marry and divorce and have rights."514
"This will send us home and shut the door, just like what happened to
women in Afghanistan," one Kurdish woman lawyer declared.515 Even a member
of the IGC recognized "that the law of the tyrant Saddam was more modern
than this new law."516 Although even more extreme laws have been enforced
in Afghanistan, Iraqi women have enjoyed more educational and professional
opportunities than in many other large Arab or Muslim countries, and have not
yet become accustomed to the levels of violence and disrespect inflicted upon
Afghan women. Eventually their protests prompted the CPA to drop the law reform
plan.517
¶ 116 With the passage
of the TAL and the commencement of a constitutional drafting process expected
to be dominated by the Ayatollahs and their private armies, Iraqi women may be
out of the frying pan, and into the fire. Although the TAL guarantees women
equal rights before the law and a non-binding goal of 25 percent of seats in
the Iraqi legislature, these provisions may be meaningless if, under Article 7
of the TAL,518 Ayatollah Sistani and other Iraqi fundamentalists get to
exercise veto power over Iraq's laws and legal system in the name of the
"tenets of Islam."519 Among the Taliban-like laws Ayatollah Sistani
would like to see implemented are bans on: women showing their faces or most
parts of their bodies in public; girls or women who are virgins getting married
without their father's or grandfather's permission; wives leaving their houses
without their husband's permission; men and women dating or having a
conversation in a private place; and even simple entertainments such as music,
dancing, and chess.520 He would permit a father or grandfather to arrange the
marriages of his children before puberty, and even before the age of nine.521
¶ 117 While the Kurdish
parties that have controlled northern Iraq since 1991 are promoted in the U.S.
media as a more moderate alternative to the Shia religious parties, their
policies towards women have also been extremely harsh. The Kurdish region they
led passed a law allowing men to kill their wives for disobedience, an offer
that an estimated 550 men accepted between 1991 and 1994.522 An Iraqi women's
rights activist blamed the Kurdish nationalist parties for complicity in more
than 8,000 "honor killings" of women since they gained control over
northern Iraq.523 Like the Afghan warlords after the Taliban, the policies of
these leaders may perpetuate the oppression of women.
C. Iraqi Christians Flee Fundamentalist Atrocities
¶ 118 A key difference
between Iraq and Afghanistan is that the former has a large population -
estimated at one to two million persons - of Christians, including the
Assyrians, the indigenous population of Iraq.524 Since the fall of Saddam
Hussein's regime, the one million Christian Assyrians in Iraq have suffered
continued tyranny, garbed in religious fervor rather than Ba'ath Arab
nationalism.525 Ayatollah Sistani's legal rulings dictate that Jews and Christians
are unclean,526 and consistent with this "unclean" status, Iraqi
fundamentalists have subjected their Christian countrymen to postwar reprisals
worthy of Germany just before Kristallnacht: Iraqi Christians are being
murdered in the dozens, several of their number are kidnapped and raped each
week, and many of their large businesses have been looted and burned.527
Schoolteachers employed by the Iraqi state are preaching religion in class and
forcing Christian girls to wear veils.528 Armed bands of religious fanatics
"roam the streets..., exacting their brand of what they call God's
law."529 Conditions are so bad that a few even recall Saddam's old regime
as being preferable.530 Over 45,000 Iraqi Christians who survived Saddam have
fled Iraq since the war.531
¶ 119 While many Iraqi
Christians hoped that the 2005 election would guarantee them proportional
representation in the Iraqi National Assembly that will draft a permanent
constitution, hundreds of thousands of Christian voters were denied the right
to vote because their designated polling centers never opened on election day,
or had no ballots.532 Voter turnout was only 17% in and around the Mosul area
in Nineveh province, the Assyrian Christian homeland.533 "Quite a
significant number of Christians in the Mosul area were denied ballot boxes and
ballots," the Iraqi deputy prime minister admitted.534 The result is that
Christians will be underrepresented in the constitutional drafting process.535
VII. Conclusion
¶ 120 Referring to the
liberation of Afghanistan and Iraq from dictatorship, President George W. Bush
declared, "No President has ever done more for human rights than I
have."536 President Bush has stated that the American invasions of
Afghanistan and Iraq have freed these countries from their long histories of
oppression, established or nearly established democratic rule, and liberated
women to participate equally in politics and society.
¶ 121 Although both
nations are as close to democracy and respect for individual rights as they
have been in many years, the elevation of Iranian-style theocrats to many of
their key leadership positions remains a serious obstacle along the path to the
promised freedom. The political reality in Afghanistan and Iraq is too often
that austere U.S.-backed fundamentalists control thousands of armed militiamen
with tenuous allegiance to the central government, and exploit these private
armies to distort the legal and political development of their countries
towards theocracy. These militia commanders and their allies have wantonly
violated the human rights of women and religious and ethnic minorities. Despite
their many abuses, no comprehensive effort to disarm these private armies is
underway, or perhaps even possible, in either country.537
¶ 122 A more complex
understanding of the history of Afghanistan and Iraq, both before and after the
intervention of the U.S.-led coalitions, is critical to assessing the impact of
the Bush doctrine on human rights and respect for international law. An
appreciation of the atrocities of the Taliban and Saddam Hussein is
indispensable to such an assessment. At the same time, the influence bestowed
upon fundamentalist warlords and their allies in Afghanistan has resulted in
the continuing oppression of the Afghan people, and challenges the Bush
administration's simple narrative of a liberation from the Taliban resulting in
equal rights for women and democracy for all. Likewise, the central role of
fundamentalist politicians and militia leaders in post-Saddam Iraq should
temper the triumphal attitude that followed the capture of Baghdad.
¶ 123 Considering the
mounting human and financial cost of U.S. military operations, which could
probably save tens of millions of lives per year if devoted to international
health care spending, more thorough study of human rights justifications for
U.S. military interventions is critical.538 The historical record of U.S.
"liberation" of other countries, while impressive, is mixed.
German-occupied Europe, Japan, South Korea, and Bosnia have all enjoyed
remarkable advances in human rights, democratic governance, women's rights, and
economic growth since the U.S. and its allies toppled or repelled dictatorial
regimes.539 But American colonization, military occupation and political
intervention have failed to produce lasting freedom in many Third World
countries more similarly situated to Iraq and Afghanistan. A number of
countries have actually experienced worsening human rights situations and even
genocide, sometimes with the direct involvement of the U.S. military, since the
U.S. intervened in their internal affairs.540 Compared to these current and
former American political proteges, the cause of women's equality has fared
better in many respects in several other Third World countries that have not
experienced American military occupation or political control.541 In light of
the poor results of many prominent interventions in the Third World, the Bush
administration's optimistic projections for its reconstruction efforts appear
to be premature at best, and warrant more careful scrutiny given their large
and rising costs in terms of loss of life and economic devastation.
¶ 124 When the
fundamentalist policies of many post-Taliban Afghan warlords or Iraqi religious
parties are raised as objections to U.S. support for these forces, the typical
response is to compare these U.S. allies favorably to the Taliban or Saddam
Hussein.542 But many Afghans and Iraqis may wonder why the practices of Afghan
warlords and Iraqi fundamentalists are not instead compared unfavorably to
international human rights standards or even to the existing practices of
neighboring countries such as present-day Lebanon or Tajikistan, where
discrimination against women and religious minorities is less often practiced.
For them, the right question is not whether Afghan warlords are better than the
Taliban or the Ayatollahs better than Saddam Hussein, but whether the future
Afghan and Iraqi governments will be so much better that regime change will
have justified the death and maiming of thousands of civilians in the invasion
and occupation of their lands.543 The answer will only be revealed after
several decades have passed, and the fate of U.S.-imposed "Islamic
democracy" is known to history.
--------------------------------------------------------------------------------
ENDNOTES
* Assistant Professor of Law, Florida International University College
of Law, August 2005. E-mail: htravis@post.harvard.edu. The author thanks the
many human rights activists with whom he discussed the issues addressed in this
Article, especially the activists with Women for Afghan Women and the Assyrian
Democratic Movement.
1 Charles Norchi, Whose War Is It Now?, N.Y. Times , Mar. 21, 1994, at
A17.
2 Amin Tarzi, Hurdles in Implementing the New Afghan Constitution,
Radio Free Europe/Radio Liberty, Feb. 8, 2004, at http://rferl.com/reports/afghan-report/2004/02/5-050204.asp.
3 John Daniszewski, Shiites Walk Softly in New Landscape, L.A. Times,
Feb. 14, 2005, at A1.
4 See, e.g., Karen DeYoung, Allies Are Cautious On "Bush
Doctrine," Wash. Post, Oct. 16, 2001, at A01; Robin Wright, Iraq
Occupation Erodes Bush Doctrine, Wash. Post, June 28, 2004, at A01. Although
the Bush doctrine has thus far been employed only against Afghanistan and Iraq,
15 out of the 19 hijackers on September 11 were from Saudi Arabia, and their
Afghan-based organization, al Qaeda, has been funded to the tune of $500
million by Saudi Arabia, not Iraq. See Robert Baer, The Fall of the House of
Saud, The Atlantic Monthly, May 2003, available at http://foi.missouri.edu/evolvingissues/fallhouseofsaud.html.
5 See, e.g., A Threatened Afghanistan, N.Y. Times, July 15, 2004, at
A22, available at http://www.nytimes.com/2004/07/15/opinion/15THU1.html;
Sonali Kolhatkar, Special Report: Afghan Women Continue to Fend for Themselves,
Foreign Policy in Focus, Mar. 2004, at http://www.fpif.org/papers/2004afghanwom.html;
Meena Nanji, Afghanistan Women Stifled, with West's Permission, L.A. Times,
Jan. 7, 2004, at A9; Bruce Fein, Constitutional Tempest in Iraq, Wash. Times,
Mar. 30, 2004, at A19, available at http://washingtontimes.com/commentary/20040329-085445-5772r.htm;
Christina Asquith, Fundamentalists Rush in, Christian Sci. Monitor, Mar. 30,
2004, at 11, available at http://www.csmonitor.com/2004/0330/p11s02-legn.html;
Nina Shea, Specify the "Tenets," National Review Online, Mar. 3,
2004, at http://www.nationalreview.com/comment/shea200403040845.asp.
6 For an account of the view of a prominent U.S. official involved in
the political reconstruction of Iraq that Islamic democracy is incompatible
with the separation of religion and the state, see Steve Schifferes, US
"Should Back Islamic Iraq," BBC News Online, Apr. 25, 2003, at http://news.bbc.co.uk/2/hi/middle_east/2976993.stm;
Terence P. Jeffrey, Ayatollah 1, First Amendment 0, Online Human Events, Dec.
10, 2003, at http://www.humaneventsonline.com/article.php?id=2577.
7 See Key Findings: Nationwide Survey of 3,500 Iraqis, USA Today, Apr.
30, 2004, available at http://www.usatoday.com/news/world/iraq/2004-04-28-gallup-iraq-findings.htm.
8 See Martin Ewans, Afghanistan: A Short History Of Its People And
Politics 12, 15-17, 42-70 (2002); Willem Vogelsang, The Afghans 36, 114-35,
176-212, 217-227, 245-62 (2002).
9 Sharia law is generally understood to mean a loose system of
uncodified laws that the supreme deity of Islam, Allah, revealed to humanity in
various passages of the Islamic holy book the Qur'an, and in the sayings and
deeds of the Prophet Muhammad. See Kristen A. Stilt, Islamic Law and the Making
and Remaking of the Iraqi Legal System, 36 Geo. Wash. Int'l L. Rev. 695, 721
(2004); Sudan: A Country Study (Helen Chapin Metz ed., 1991), at http://lcweb2.loc.gov/frd/cs/sudan/sd_glos.html.
10 See Ahmed Rashid, 83,
95 (2000); United Nations High Commissioner for Refugees (UNHCR), Update of the
Situation in Afghanistan and International Protection Considerations, 4, ¶ 3
(July 2003), at http://www.proasyl.de/texte/mappe/2003/80/2.pdf.
Traditionally, civil and criminal disputes in southern and eastern Afghanistan
were settled either pursuant to the Sharia or the Pashtun way, the latter
involving submission of the dispute to a jirga of tribal elders who could order
the money, property, or even family members (especially virgin girls) of the
offender to be handed over to the victim as "blood money." See The
Customary Laws of Afghanistan The International Legal Foundation 4-8 (2002), at
http://www.theilf.org/ILF_cust_law_afgh_10-15.doc.
"Generally, girls are preferred to money, because when the girls are
wedded to the victim's family, kinship and blood sharing will transform the
severe enmity into friendship." Id. at 11 (emphasis omitted).
11 See id.; Niloufer Qasim Mahdi, Pukhtunwali: Ostracism and Honor
Among the Pathan Hill Tribes, 7 Ethology and Sociobiology 295-304 (1986),
available at http://www.bepress.com/context/gruterclassics/article/1036/viewcontent.
12 See Mariam Nawabi, Women's Rights in the New Constitution of
Afghanistan at 8 (2003), at http://www.cic.nyu.edu/pdf/E22Womens%20RightsFullVersionNawabi.pdf;
Huma Ahmed-Ghosh, A History of Women in Afghanistan: Lessons Learnt for the
Future, 4 J. Int'l Women's Stud. 3 (May 2003), available at http://www.bridgew.edu/SoAS/jiws/May03/Afghanistan.pdf.
13 Loya Jirga (or Great Council in the Pashto language) is an
institution that has served in Afghan history as a mechanism for involving the
Afghan people in decisions of great historic significance by calling an
assembly of tribal elders and national leaders to reach an accord. See G. Rauf
Roashan, Loya Jirga: One of the Last Political Tools for Bringing Peace to
Afghanistan, Institute for Afghan Studies (July 30, 2001), at http://www.institute-for-afghan-studies.org/AFGHAN%20CONFLICT/LOYA%20JIRGA/LoyaJirgaLastToolDrRoashan.htm.
14 Afg. Const. of 1923, art. 16, available at http://www.institute-for-afghan-studies.org/Constitutions/king_amanullah/THE%20CONSTITUTION%20OF%20AFGHANISTAN%20APRIL%201923.htm.
15 See Vogelsang, supra note 8, at 279.
16 See Masouda Gizabi, Testimony to the Congressional Human Rights
Caucus on the Post Taleban Era: Human Rights and the Role of Women in
Afghanistan (Dec. 18, 2001), available at
http://lantos.house.gov/HoR/CA12/Human+Rights+Caucus/Briefing+Testimonies/Testimony+from+Masouda+Gizabi.htm
("Towards the end of nineteenth century, about 62% of [the Hazara] people
were massacred. The survivors were sold into slavery and expelled out of the
country."); Mir Hekmatullah Sadat, Afghan History: Kite Flying, Kite
Running and Kite Banning, Lemar Aftaab afghanmagazine.com, June 2004, at http://www.afghanmagazine.com/2004_06/articles/hsadat.shtml
("In 1891 ..., Amir Abdur Rahman continued the policy of offering Sunnis
and tribesmen the title of 'ghazi' (infidel killer) for his conquest of
Hazarajat. The result was the destruction of the Hazara tribal system,
annexation of Hazara personal property and land, and the enslavement Hazaras to
be sold in the Kabul bazaar. What ensued was the massive migration of Hazaras
to Quetta and Mashad, currently in Pakistan and Iran, respectively.").
17 See Afg. Const. of 1923, art. 10.
18 See id., art. 26, 28.
19 See id., art. 2.
20 Id., art. 68.
21 See The Random House Unabridged Dictionary of the English Language
1471 (1966).
22 Webster's Encyclopedic Dictionary 1025 (1987).
23 Afg. Const. of 1923, art. 2, 5. The 1923 Constitution and all other
Afghan constitutions discussed in this article are available at the website of
the U.N. Assistance Mission in Afghanistan (UNAMA), http://www.unama-afg.org/docs/Constitution.
24 Id., art. 72.
25 Id., art. 21.
26 See Nina Shea, Sharia in Kabul?: A Theological Iron Curtain Is
Descending Across Afghanistan, National Review, Oct 28, 2002, at 20.
27 Iraj Bashiri, Afghanistan: An Overview (2002), at http://www.angelfire.com/rnb/bashiri/Afghanistan/AfghanOverview.html
(2002).
28 See International Crisis Group, Afghanistan's Flawed Constitutional
Process, (June 12, 2003), at http://www.icg.org//library/documents/report_archive/A401002_12062003.pdf;
The Encyclopedia of World (Peter N. Sterns ed., 6th. ed. 2001), available at http://www.bartleby.com/67/2346.html.
29 See Mir Hekmatullah Sadat, Modern Education in Afghanistan, Lemar -
Aftaab Afghanmagazine.com, Mar. 2004, available at http://www.afghanmagazine.com/2004_03/articles/education.shtml.
30 See Rashid, supra note 10, at 83.
31 See Nawabi, supra note 12, at 8.
32 Louis Dupree, Afghanistan 46 (1973), cited in Nawabi, supra note
12, at 8.
33 See Rashid, supra note 10, at 84.
34 Ewans, supra note 8, at 93.
35 See id. at 94.
36 See id.
37 See id.
38 See id. Jews and Hindus, moreover, would be forced to wear
distinctive clothing and pay a special tax. See Afg. const.of 1923, art. 2.
39 Ewans, supra note 8, at 94.
40 See Afg. Const. of 1923, art. 24, as amended January 28, 1925.
41 Vogelsang, supra note 8, at 280.
42 See id. at 281.
43 See id.
44 See id. at 281-82; Ahmed-Ghosh, supra note 12, at 5; Afghanistan
Country Study and Government Publications 45-46 (Richard F. Nyrop & Donald
M. Seekins, eds., 1986).
45 See, e.g., Ewans, supra note 8, at 96-98; Edgar O'Ballance, Afghan
Wars: Battles in a Hostile Land 75 (2002).
46 See Ewans, supra note 8, at 96.
47 See Leon B. Poullada & Leila D.J. Poullada, : 1828-1973 86
(1995); Ewans, supra note 8, at 102; Afghanistan Country Study and Government
Publications, supra note 44, at 49.
48 See Vogelsang, supra note 8, at 285.
49 See Ewans, supra note 8, at 101.
50 See Vogelsang, supra note 8, at 285.
51 See id.
52 See id.
53 See Ewans, supra note 8, at 101.
54 See id.; Afghanistan: A Country Study(Peter R. Blood ed., 1997),
available at http://countrystudies.us/afghanistan/1.htm
55 Blood supra note 54, available at http://countrystudies.us/afghanistan/58.htm.
56 He was shot to death while visiting a school in Kabul. See Ewans, supra
note 8, at 103.
57 See Vogelsang, supra note 8, at 288.
58 See id. at 288-89; Poullada & Poullada, supra note 47, at
163-66.
59 Daoud helped broker agreements for the Soviet Union and its
satellites to supply Afghanistan with advanced Soviet military training and
weaponry, including tanks, helicopters, and fighter-bombers. See Ewans, supra
note 8, at 109-10; Blood, supra note 54, available at http://countrystudies.us/afghanistan/26.htm;
Afghanistan Country Study and Government Publications, supra note 44; U.S.
Department of State, Country Fact Sheet: Afghanistan, Department Of State
Dispatch No. 23 (June 6, 1994) ($1 billion in Soviet aid starting in 1954).
Among other projects, the Soviet Union built an international airport for
Kabul, roads connecting Afghanistan's three major cities with each other and
with the Soviet Union, a tunnel at 11,000 feet through 1.7 miles of the
towering Hindu Kush mountains that divide Kabul from the north of Afghanistan,
paved streets for Kabul, and a number of grain silos. See Ewans, supra note 8,
at 112-13.
60 The U.S. oversaw the construction of an international airport in
Kandahar and developed Afghanistan's national airline Ariana; led the building
of roads from Kabul to Kandahar and from Afghanistan to Iran and Pakistan, then
both friendly with the United States; and provided educational assistance. See
Ewans, supra note 8, at 114-15. President Eisenhower also visited Kabul to
proclaim American friendship. See id.
61 See id. at 115.
62 See Ewans, supra note 8, at 115.
63 See M. Hassan Kakar,Afghanistan: The Soviet Invasion and the Afghan
Response, 1979-1982, at Introduction (1995), available at http://ark.cdlib.org/ark:/13030/ft7b69p12h.
64 See Vogelsang, supra note 8, at 293.
65 The heresy charge was leveled on the theory that King Zahir Shah
ruled Afghanistan by divine right, a notion later incorporated into
Afghanistan's 1964 constitution. See Ewans, supra note 8, at 115; Afg. const.
of 1964, Art. 15.
66 See Kakar, supra note 63, at Introduction.
67 See Ewans, supra note 8, at 115.
68 See id. at 117-120.
69 See id. at 115-17.
70 See id. at 120.
71The Sound of the Sixties, The Economist, Oct. 26, 2002, at 41.
72 See Afg. const. of 1964, art. 69. Compare id. art. 9(8), with id.
art. 9(7), and id. art. 9(10).
73 See id. art. 9.
74 See id. arts. 43-44. The constitution filled the remaining
one-third of the Afghan Senate by having local provincial councils each elect
one of their members to serve three-year terms in that body. See id. art. 44.
75 Cf. Ewans, supra note 8, at 120 (1964 constitution expressed
"clear preference for a secular legal system").
76 See Afg. const. of 1964, art. 2.
77 Id. art. 64 (emphasis added). Compare Afg. const. of 1923, art. 72.
78 Afg. Const. of 1923, art. 5.
79 Afg. Const. of 1964, art. 15 (emphasis added).
80 See Democracy and Islam in the New Constitution of Afghanistan (Cheryl
Benard & Nina Hachigian eds., 2003), available at http://www.rand.org/publications/CF/CF186/CF186.pdf.
81 Afg. Const. of 1923, art. 21.
82 Afg. Const. of 1964, art. 69.
83 See Bharathi A. Venkatraman, Islamic States and the United Nations
Convention on the Elimination of All Forms of Discrimination Against Women: Are
the Shari'a and the Convention Compatible?, 44 Am. U. L. Rev. 1949, 1970-71
(1995); Urfan Khaliq, Beyond The Veil?: An Analysis of the Provisions of the
Women's Convention in the Law as Stipulated in Shari'ah, 2 Buff. J. Int'l L. 1,
29-30, 30 n.122, 36-7 (1995); John L. Esposito, Women in Muslim Family Law
34-35 (1982).
84 Afg. Const. of 1964, art. 69.
85 Id., art. 102. The 1923 Constitution, by comparison, had directed
Afghan courts simply to the "principles of Sharia" without specifying
which particular school of Islamic law such as Hanafi to follow. See Afg.
Const. of 1923, art. 21.
86 The Sound of the Sixties, supra note 71.
87 Compare Afg. Const. of 1964, art. 25, with Afg. Const. of 1923,
art. 16. See also Vogelsang, supra note 8, at 279 (1923 constitution
interpreted as giving women equal rights).
88 See Afg. Const. of 1964, arts. 25-6, 29-32, 34, 37.
89 The Sound of the Sixties, supra note 71.
90 See Vogelsang, supra note 8, at 296.
91 See Ariane Brunet & Isabelle S. Helal, Seizing an Opportunity:
Afghan Women and the Constitution-Making Process (Sept. 2003), at http://www.ichrdd.ca/english/commdoc/publications/women/afghanMissionReportSept2003Eng.html.
92 See Ewans, supra note 8, at 122-23.
93 See id. at 121.
94 See Vogelsang, supra note 8, at 296.
95 See Ewans, supra note 8, at 122-24.
96 See id. at 123-24.
97 See Vogelsang, supra note 8, at 297.
98 See Ewans, supra note 8, at 123.
99 See Robert Irwin, Is This the Man Who Inspired Bin Laden?, The
Guardian, Nov. 1, 2001.
100 See Vogelsang, supra note 8, at 292.
101 See id.
102 See id. at 298. Most of Afghanistan's judges were trained at
Al-Azhar University. See Barnett R. Rubin, The Fragmentation of Afghanistan,
Foreign Affairs, 1989, at 150.
103 See Vogelsang, supra note 8, at 298.
104 See Kakar, supra note 63, at 2.4.
105 See id. at B, "Niazi."
106 See id. at B, "Rabbani," & "Sayyaf";
Vogelsang, supra note 8, at 298.
107 See Irwin, supra note 99.
108 See Rabbani's Afghan Comeback, BBC News Online, Nov. 14, 2001, at http://news.bbc.co.uk/1/hi/world/south_asia/1656013.stm.
109 See Profile of an Afghan Warlord (Australian Broadcasting Corp.
broadcast, Nov. 22, 2001), available at http://www.abc.net.au/worldtoday/stories/s423361.htm.
110 See John F. Burns, Afghans: Now They Blame America, N.Y. Times
Magazine, Feb. 4, 1990, at 6-22 ("As a Kabul student leader during the
early 1970's, [Hekmatyar] had dispatched followers to throw vials of acid into
the faces of women students who refused to wear veils."). In the Afghan
context, such attacks can be a fate worse then death, due to the importance of
finding a husband for financial support. Cf. Lisa M. Taylor, Saving Face: Acid
Attack Laws After the U.N. Convention on the Elimination of All Forms of
Discrimination Against Women, 29 Ga. J. Int'l & Comp. L. 395, 400 n.25
(2001).
111 See Vogelsang, supra note 8, at 298.
112 Compare Ewans, supra note 8, at 126 (stating, "100,000 people
- some say more - died"), with Burns, supra note 110 (stating that 500,000
Afghans died of starvation in the winter of 1971).
113 See Vogelsang, supra note 8, at 299.
114 See John K. Cooley, Unholy Wars: Afghanistan, America and
International Terrorism 11 (2000).
115 See id.; Blood, supra note 54, available at http://countrystudies.us/afghanistan/28.htm.
116 See Blood, supra note 54, available at http://countrystudies.us/afghanistan/28.htm.
117 See Kakar, supra note 63, at 3.9-3.12.
118 See Vogelsang, supra note 8, at 300.
119 See id.
120 See id. at 300; Ewans, supra note 8, at 155; Antonio Giostozzi,
Re-building the Afghan Army (2003), at http://bglatzer.de/arg/arp/giustozzi.pdf.
The Pakistani government trained and armed the Afghan fundamentalists such as
Hekmatyar. See George Arney, The Heroes with Tarnished Haloes: The Ruthless and
Murderous Conflicts of Afghanistan's Other War, The Guardian (U.K.), Jan. 5,
1988; Ewans, supra note 8, at 131; John Kifner, Afghanistan, by Custom, Has
Rebels Everywhere, N.Y. Times, May 14, 1989, at E2.
121 See Ewans, supra note 8, at 131.
122 See Vogelsang, supra note 8, at 300.
123 See id. at 301.
124 Article 2, which in all previous Afghan constitutions had
proclaimed Islam the sacred religion of Afghanistan, now called for "the
exercise of power by the people, the majority of whom consists of farmers,
workers, the enlightened people and the youth." Afg. Const. of 1977, art.
2. Another provision called for land reform, see id., art. 14, five percent of
the landowners then owning 45% of all arable land, and some 400 families owning
about 20,000 villages. See Raja Anwar, The Tragedy of Afghanistan 130 (1988).
The constitution decreed state ownership for Afghan banks, insurers, large
industries, oil and other mineral resources, and communications and transport
hubs. See Afg. Const. of 1977, art. 13; Vogelsang, supra note 8, at 301.
125 See Afg. Const. of 1977, art. 64.
126 See id. art. 99.
127 See id. art. 27.
128 See id. art. 21.
129 See Vogelsang, supra note 8, at 301.
130 See id. at 303-4.
131 Burns, supra note 110. See also Barry Kramer, Out of Isolation:
Afghanistan Is Pushing Toward the 20th Century With Bold Spending Plan, but
Tribesman Resist, Wall St. J., Sept. 2, 1977, at 22 ("Afghanistan is
plagued by poverty, 90% illiteracy, 50% infant mortality rate and soc[ial] and
econ[omic] backwardness").
132 See Vogelsang, supra note 8, at 304.
133 See id.
134 See id. His deputies were the other two leading Afghan communists,
Babrak Karmal and Hafiz Allah Amin. See id.
135 See Amnesty International, Women in Afghanistan: Pawns in Men's
Power Struggles, Nov. 1, 1999; Vogelsang, supra note 8, at 304.
136 Richard Ehrlich, Feminism, Afghan Style, The Advertiser
(Australia), Dec. 5, 1987.
137 See Vogelsang, supra note 8, at 304; Ewans, supra note 8, at 139.
138 See Vogelsang, supra note 8, at 306-7.
139 See id. at 306
140 Ewans, supra note 8, at 143.
141 See id.
142 See id.
143 See id.
144 See Phillip C. Wilcox, Striking Terror: America's New War 80
(Robert B. Silvers & Barbara Epstein eds., 2002); Cooley, supra note 114 at
13, 19-22
145 Wilcox, supra note 146, at 80; Cooley, supra note 114 at 13,
19-22. The Defense Department believed at the time that "there was value
in keeping the Afghan insurgency going, 'sucking the Soviets into a Vietnamese
quagmire.'" Robert Gates, From the Shadows: The Ultimate Insider's Story
of Five Presidents and How They Won the Cold War 145 (1997). The Soviet
leadership believed that the CIA was fomenting fundamentalist opposition with
the purpose of replacing U.S. bases lost in Iran after the 1979 revolution. See
Cooley, supra note 114, at 13-19
146 Ewans, supra note 8, at 146-48; Blood, supra note 54. The Soviet
Union claimed that it had been invited into Afghanistan by the besieged Taraki
regime pursuant to a mutual defense treaty, but historians tend to reject these
claims, citing a lack of evidence. See, e.g., Kakar, supra note 63, at Chapter
2. Although Taraki, the initial leader of the Afghan communist government, had
signed a military assistance treaty with the Soviets, and pleaded with them for
both "men and weapons" after the revolt in Heart, he was dead by the
time of the invasion. See id. While it is undisputed that Taraki's rival Karmal
welcomed the Soviet invasion, historians deny that he had the authority to
invite the Soviets in because he was not even living in Afghanistan at the
time. See id.
147 See Ewans, supra note 8, at 146-48
148 See Vogelsang, supra note 8, at 321.
149 See id. at 309; Kakar, supra note 75, at Chapter 2.
150 See Vogelsang, supra note 8, at 309.
151 See id.
152 See, e.g., Blood, supra note 54; Kakar, supra note 63, at Chapter
3.
153 U.S. Department of State, Afghanistan Human Rights Practices, 1993
(Jan. 31, 1994), at http://64.233.167.104/search?q=cache:wGmeiZXg-jMJ:dosfan.lib.uic.edu/ERC/democracy/1993_hrp_report/
93hrp_report_sasia/Afghanistan.html+%22Afghanistan+Human+Rights+Practices,+1993+%22&hl=en.
154 See Valentine Moghadam, Afghan Women and Transnational Feminism,
16 Middle East Women's Studies Rev. 1-6 (Fall 2001/Winter 2002), available at http://www.amews.org/review/reviewarticles/transnational_feminism.htm.
155 Sharon Lerner, A Place at the Table, Village Voice, Dec. 11, 2001,
at 39, available at http://www.villagevoice.com/issues/0149/lerner.php.
156 See Moghadam, supra note 154.
157 See Carlotta Gall, Afghan Women Lose their Rights, Calgary Herald,
Oct. 9, 1992, at A20.
158 See Moghadam, supra note 154.
159 Id.
160 Soon after the Soviet invasion began, the U.S. coordinated an
international campaign of support for the anti-communist jihad that had been
waged from the fundamentalists' safe haven in Pakistan for several years prior
to the Soviet intervention. Pakistan agreed to set up training camps for Afghan
and foreign fighters, Saudi Arabia to contribute large sums of cash, and Egypt
to bequeath their stocks of Soviet-made assault rifles. See Cooley, supra note
114, at 15-16, 59, 65-69, 100, 95, 108-110. The mujahideen eventually received
over $10 billion, almost $5 billion from the U.S. and $3 billion from Saudi
Arabia. See Rashid, supra note 10, at 18; Samuel P. Huntington, The Clash of
Civilizations and the Remaking of the World Order at 247 (1998).
161 Huntington, supra note 160, at 247. The Reagan administration
awarded one-third of the CIA's financial aid to the mujahideen and powerful
anti-aircraft Stinger missiles to Hekmatyar's faction, which used this support
to gain even more influence among Afghans. See Ahmed Rashid, Afghan Designs;
Geneva Accord on Afghanistan, The Nation, May 21, 1988, at 700; Richard
Ehrlich, Afghan Rebels at Each Others' Throats, Toronto Star, Jan. 31, 1988, at
H3; Arney, supra note 120.
162 Barry Shlachter, Most-Disciplined Afghan Rebel Faction Seeks
Strict Islamic State, Associated Press, Jan. 1, 1982. At the time, Hekmatyar
was on "good terms" with the regime of Ayatollah Khomeini in Iran.
Id.
163 Christina Lamb, Westernised Women Dread Return to a Veiled
Existence, Financial Times (U.K.), June 23, 1989, at 6.
164 See Jan Goodwin & Jessica Neuwirth, The Rifle and the Veil,
N.Y. Times, Oct. 19, 2001, at A19.
165 Grand Council to Begin Historic Work: Turbaned Delegates in High-Tech
Setting Chart the Future: A New Day for Afghanistan, Edmonton Journal (Canada),
June 9, 2002, at A4. See also Rashid, supra note 10, at 131 (Saudis used Sayyaf
to "promote Wahhabism"); Ralph H. Magnus & Eden Naby,
Afghanistan: Mullah, Marx, and Mujahid at 97 (1998).
166 Grand Council to Begin Historic Work, supra note 165, at A4. The
Arab-Afghans had "very good relations" with both Sayyaf and Hekmatyar
according to Ahmed Shah Massoud, who was later killed on the orders of the most
famous one of them, bin Laden. Rashid, supra note 10, at viii, 132-33.
167 See Jason Burke, Al-Qaeda: Casting a Shadow of Terror 55 (2004).
168 Id. at 55, 66, 125, 145; Vincent Cannistraro A Strike Against
Terrorism - and Ourselves?, Boston Globe, Aug. 23, 1998, at E1 ("At 18,
[bin Laden] joined Abd'al Rauf Sayyaf, an Afghan tribal leader who was trained
in Saudi Arabia by the Wahabis."). Sayyaf has even been described as a
"mentor" to bin Laden. Mary Anne Weaver, Pakistan: in the Shadow of
Jihad and Afghanistan 191, 201, 222, 269 (2002).
169 See O'Ballance, supra note 45, at 245. Bin Laden built a major
CIA-financed tunnel complex and arms depot for the mujahideen in 1986. See
Rashid, supra note 10, at 132; Michael Moran, Bin Laden Comes Home to Roost:
His CIA Ties Are Only the Beginning of a Woeful Story, MSNBC, Aug. 23, 1998,
available at http://www.msnbc.com/news/190144.asp?cp1=1.
170 Rashid, supra note 10, at 129.
171 See id. at 13. See also Huntington, supra note 160, at 247
(putting number at 25,000).
172 Rashid, supra note 10, at 130.
173 Jason Burke, Frankenstein the CIA Created, Observer (U.K.), Jan.
17, 1999, available at http://www.guardian.co.uk/
yemen/Story/0,2763,209260,00.html.
174 See Ken Silverstein, Two Panelists Detail Allies' Al Qaeda Ties,
L.A. Times, June 21, 2004, at A12.
175 See, e.g., Russell Watson & John Barry, Insurgencies: Two of a
Kind, Newsweek, Mar. 23, 1987, at 32; John F. Burns, Misery Replaces Hope in a
Battered Afghanistan, N.Y. Times, Dec. 17, 1989, at 26 (1.3 million); Lamb,
supra note 163, at 6 (1.5 million).
176 See Watson & Barry, supra note 175, at 32; see also
Supplementary Material to the Interim Report on the Situation of Human Rights
in Afghanistan, quoted in Juliana Geran Pilon, The Report that the U.N. Wants
to Suppress: Soviet Atrocities in Afghanistan, Heritage Foundation Reports
(Jan. 12, 1987).
177 See Burns, supra note 175; Watson & Barry, supra note 176, at
32. See also Pilon, supra note 176.
178 Huntington, supra note 160, at 247.
179 See Ewans, supra note 8, at 160-61; Arney, supra note 120.
180 See Afghan Women Face Future of Backwardness, S.F. Chron., June 1,
1989, at A22.
181 Id.
182 See id.
183 See The White House, Office of Mrs. Bush, Radio Address by Laura
Bush (Nov. 17, 2001), available at http://www.whitehouse.gov/news/releases/2001/11/20011117.html;
U.S. Department of State, Office of the Senior Coordinator for International
Women's Issues, Fact Sheet: Women and Girls in Afghanistan (Oct. 30, 2001),
available at http://www.state.gov/p/sa/rls/fs/index.cfm?docid=5795.
184 See Ewans, supra note 8, at 167-68
185 See Craig Karp, Afghanistan: Seven Years of Soviet Occupation,
Department of State Bulletin (Feb. 1987), available at http://www.findarticles.com/p/articles/mi_m1079/is_v87/ai_4754840/print.
186 Afg. Const. of 1987, art. 2, available at http://home.no.net/dawat1/constitution_of_afghanistan_1987.htm.
187 See id., art. 38.
188 See id., art. 39-60.
189 See Vogelsang, supra note 8, at 319.
190 See CP-Reuters, Join Afghan Parliament, Najibullah Urges Rebels,
Toronto Star (Canada), May 30, 1988, at A3.
191 See Ewans, supra note 8, at 168-69.
192 See Burns, supra note 175.
193 See id.
194 See Ewans, supra note 8, at 171-72; Vogelsang, supra note 8, at
322-23.
195 See Afg. Const. of 1990, art. 2, 5, 29, available at http://www.afghan-web.com/history/const/const1990.html.
196 See id., art. 20, 25, 27; Ewans, supra note 8, at 175.
197 See Afg. Const. of 1990, art. 75, 81.
198 See id., art. 75, 122-24.
199 See Felix Ermacora,
Introduction to the Ninth Report of the Special Rapporteur of the Commission on
Human Rights on the Human Rights Situation in Afghanistan, ¶ 31 at 9, U.N. Doc.
A/C.3/48/SR.40 (Nov. 23, 1993), available at http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/c3e13fa375d96e7a80256715003d714d?Opendocument.
200 See Vogelsang, supra note 8, at 323-24.
201 See Burns, supra note 175.
202 See John F. Burns, Afghan's Chief Vows to Stay in Office, N.Y.
Times, May 4, 1990, at A3.
203 Felix Ermacora,
Final Report on the Situation of Human Rights in Afghanistan ,¶ 37 at 10, U.N.
Doc. E/CN.4/1995/64, available at http://www1.umn.edu/humanrts/commission/country51/64.htm.
204 See Ewans, supra note 8, at 180.
205 See U.S. Department of State, Afghanistan Human Rights Practices,
1993 (Jan. 31, 1994), available at http://dosfan.lib.uic.edu/ERC/democracy/1993_hrp_report/93hrp_report_sasia/Afghanistan.html..
206 Ermacora, supra note 203.
207 See Michael Griffin, A Gruesome Record, The Guardian (U.K.), Nov.
16, 2001, available at http://www.guardian.co.uk/waronterror/story/0,1361,595529,00.html.
208 O'Ballance, supra note 45, at 241.
209 See 10,000 Killed in 8 Months in Kabul, The Frontier Post
(Pakistan) Nov. 28, 1993, available at http://pz.rawa.org/rawa/reports.htm#1.
210 U.S. Department of State, Afghanistan Human Rights Practices, 1994
(Feb. 1995), available at http://dosfan.lib.uic.edu/ERC/democracy/1994_hrp_report/94hrp_report_sasia/Afghanistan.html.
211 Charles M. Sennott, A Dark Side to the Northern Alliance:
Afghanistan's Anti-Taliban Militias Share History of Human Rights Abuse, The
Boston Globe Oct. 6, 2001, at A1. "Thousands of women and girls were
systematically raped by armed thugs, and many committed suicide to avoid being
sexually assaulted by them." Mariam Rawi, Rule of the Rapists, The
Guardian (U.K.) Feb. 12, 2004, available at http://www.guardian.co.uk/comment/story/0,3604,1146134,00.html.
212 See Amnesty International, Women in Afghanistan: A Human Rights
Catastrophe (Nov. 3, 1995), available at http://www.amnesty.org/ailib/intcam/afgan/afg5.htm.
213 Syed Saleem Shahzad, Empty Words of War, Asia Times (Hong Kong),
Nov. 27, 2001, available at http://www.atimes.com/c-asia/CK27Ag02.html. See
also Sonali Kolhatkar, Commentary: The Impact of U.S. Intervention on Afghan
Women's Rights, 17 Berkeley Women's L.J. 12, 16 (2002) ("The Mujahadeen []
instituted laws banning alcohol and requiring that women be veiled. Both of
these new crimes were punishable by floggings, amputations, and public
executions."); U.S. Department of State, supra note 205 (Rabbani
government imposed a mandatory "strict, conservative Islamic dress
code"); Killing for a Cause, Calgary Herald (Canada), Aug. 21, 1992, at A4
(Rabbani government "forced women to wear veils").
214 U.S. Department of State, supra note 210.
215 See id.
216 Ronald Reagan, Proclamation 5034 -- Afghanistan Day, 1983 (Mar.
21, 1983), available at http://www.reagan.utexas.edu/resource/speeches/1983/32183d.htm.
217 U.S. Department of State, Country Fact Sheet: Afghanistan,
Department of State Dispatch No. 23 (June 6, 1994).
218 Griffin, supra note 207; Christina Lamb,The Sewing Circles of
Herat 20 (2002). See also Grand Council to Begin Historic Work, supra note 165,
at A4; Loya Jirga Defuses Battle of Good and Evil, Deutsche Presse-Agentur,
June 12, 2002 ("Backed by hundreds of Arab recruits," Sayyaf
"spearheaded a vicious campaign against the country's Shia Hazara
minority.").
219 See Strobe Talbott, The Age of Terror: America and the World After
September 11, at 39 (2003).
220 Id. at 21.
221 See Burke, supra note 167, at 66, 125, 145.
222 See U.S. Department of State, supra note 210; Ewans, supra note 8,
at 179.
223 U.S. Department of State, supra note 210. See also Dan Chapman,
Many Afghans Haunted by Northern Alliance's Past, The Atlanta
Journal-Constitution, Nov. 12, 2001, at 8A.
224 See Ewans, supra note 8, at 186.
225 See Scott Baldauf, LifeUnder Taliban Cuts Two Ways, Christian Sci.
Monitor, Sept. 20, 2001 at 1.
226 Rashid, supra note 10, at 25. See also id. at 115.
227 Statement of Mr. Hamid Karzai, The Taliban: Engagement or
Confrontation?, Hearing Before the Committee on Foreign Relations United States
Senate, 106th Cong., 2d Sess., S. Hrg. 106-868 (July 20, 2000).
228 See Rashid, supra note 10, at 23.
229 See id . at 46, 158-59, 166, 176-177. See also Howard Schneider,
Saudi Missteps Helped Bin Laden Gain Power, Washington Post Foreign Service,
Oct. 15, 2001, at A01. Saudi Arabia and some Pakistanis seized on the Taliban
as a vehicle for promoting fundamentalist ideals. See Rashid, supra note 10, at
197-206, 211.
230 The U.S. reportedly funded Pakistani military training of the
Taliban. See Ewans, supra note 8, at 225 (recounting statement to this effect
by the Prime Minister of Pakistan to the BBC). The U.S. State Department
praised the Taliban to Congress and argued publicly as late as 1996 that there
was "nothing objectionable" about their fundamentalist policies.
Magnus & Naby, supra note 165, at 184; see Rashid, supra note 10, at
158-59, 166. The Taliban owed much of their military sophistication and the
speed of its success to highly trained professionals in the Pakistani security
services, who trained the Taliban and provided it with thousands of Pakistani
troops, 12,000 assault rifles and ammunition, and fuel and maintenance for
tanks, artillery, and aircraft. See Ewans, supra note 8, at 183; Rashid, supra
note 10, at 27-28, 39. U.S. "allies" Saudi Arabia and Pakistan also
provided direct support to the al Qaeda brigades fighting alongside the Taliban
and planning foreign terrorist attacks, including financial, intelligence, and
military assistance. See Josh Meyer, 2 Allies Aided Bin Laden, Say Panel
Members, L.A. Times, June 20, 2004, available at http://www.latimes.com/news/nationworld/world/la-fg-alqaeda20jun20,1,440629.story?coll=la-headlines-world.
231 See Ewans, supra note 8, at 184. The Pakistani Interior Minister
even called the Taliban "our boys" and boasted that he was
responsible for their victory in Kandahar. See Rashid, supra note 10, at 27-29.
232 See Vogelsang, supra note 8, at 327; Rashid, supra note 10, at 33.
233 Rashid, supra note 10, at 39.
234 See id. at 48.
235 See O'Ballance, supra note 45, at 243.
236 See id. at 52-53.
237 See Rashid, supra note 10, at 51.
238 See UNHCR, supra
note 10, ¶ 6 at 5.
239 See Rashid, supra note 10, at 74-6.
240 See id. at 58-60, 72-74; O'Ballance, supra note 45, at 244. The
Pakistanis approved a budget of $5 million for this operation, and the Saudis
contributed as well. See Rashid, supra note 10, at 72, 138.
241 See id. at 76; Gizabi, supra note 16.
242See David Filipov, Reconstruction: Hazaras Hold Key Role After
Taliban Destruction, Boston Globe, Feb. 14, 2002, available at http://www.afgha.com/?af=article&sid=12366
243 See Rashid, supra note 10, at 76.
244 See id. at ix-x.
245 Rashid, supra note 10, at 43.
246 Id. at 107.
247 See id. at 106.
248 See id. at 51, 85.
249 Taliban leader Mullah Omar used to say, "Whatever Saudi
Arabia wants me to do, I will do." Steve Coll, Ghost Wars: The Secret
History of the CIA, Afghanistan, and bin Laden, from the Soviet invasion to
September 11, 2001, at 295 (2004).
250 See Saudi Arabia Const., art. 1, 5-8, available at http://www.the-saudi.net/saudi-arabia/saudi-constitution.htm.
251 See Harvey Morris, Saudi Arabia 'Torturing Christians';
Expatriates and Shia Minority Victimised in State-Sanctioned Persecution, Says
Amnesty International , Independent (U.K.), Sept. 14, 1993, at 10; Mark
Lattimer, Letter: Plight of Saudi Women, Independent (U.K.), Oct. 24, 2000, at
2 ("Women in Saudi Arabia cannot move freely, appear in public without a
hijab or gain equal access to education or employment. The al-Mutawa'een
(religious police) aggressively target women, frequently beating them in the
streets for perceived infractions of moral codes relating to dress or
behaviour."); Robert Fisk, Saudi Torture of Women Rampant, Says Amnesty,
Independent (U.K.), Sept. 27, 2000, at 14. ("Amnesty International has
turned its humanitarian searchlight on Saudi Arabia's justice 'system' - the
quotation marks are essential - demanding to know why the kingdom's judiciary
and regal authorities should subject women to arbitrary detention, arrest,
flogging and execution."). In 2002, 15 Saudi girls burned to death in a
fire in their dormitory after the religious police refused to allow them to
leave the building without being completely covered. See Palpitations at the
Kingdom's Heart, The Economist Aug. 22, 2002, available at http://www.economist.com/world/africa/displayStory.cfm?story_id=1291310.
252 See Coll, supra note 249, at 341-42.
253 See id. at 297, 613.
254 See id. at 29, 105, 115, 218-19; Lamb, supra note 218, at 283.
255 See Rashid, supra note 10, at xii, 219.
256 See, e.g., id. at 15-18.
257 See, e.g., id. at 17.
258 See Rashid, supra note 10, at 93; Ewans, supra note 8, at 184,
187.
259 See Pamela Constable, Far From Prosperity: The Taliban Is Gone,
But Drought and Corruption Have Hit Hard, Washington Post Feb. 17, 2004, at C1.
See also Lamb, supra note 218, at 10-11.
260 Thousands of Taliban conscripts and troops died in battles for one
northern city, Mazar-i-Sharif, many being roasted in metal containers in the
desert into which they were packed. See Rashid, supra note 10, at 59, 63.
261 See Physicians' Committee for Human Rights, The Taliban's War on
Women - A Health and Human Rights Crisis in Afghanistan, "Overview"
(1999), at http://www.phrusa.org/research/health_effects/exec.html
("Thousands of men have been taken prisoner, arbitrarily detained,
tortured, and many killed and disappeared.").
262 See Rashid, supra note 10, at 106, 110, 218.
263 See id. at 29; Lamb, supra note 218, at 81.
264 See Anastasia Telesetsky, Recent Developments: In the Shadows and
Behind the Veil: Women in Afghanistan Under Taliban Rule, 13 Berkeley Women's
L.J. 293, 296 (1998).
265 See Lamb, supra note 218, at 30-31, 162. Even before the Taliban
took power, more than 90% of girls and 60% of boys in Afghanistan were
illiterate. See Rashid, supra note 10, at 107.
266 See Rashid, supra note 10, at 217-18; Robert Scheer, Bush's
Faustian Deal With the Taliban, L.A. Times, May 22, 2001, available at http://www.robertscheer.com/1_natcolumn/01_columns/052201.htm.
267 See Schneider, supra note 229, at A01.
268 Taliban Repeats Call for Negotiations, CNN.Com, Oct. 2, 2001, at http://www.cnn.com/2001/WORLD/asiapcf/central/10/02/ret.afghan.taliban.
269 Stephen Biddle, Afghanistan and the Future of Warfare:
Implications for Army and Defense Policy 8, U.S. Army War College Strategic
Studies Institute (Nov. 2002), at http://www.au.af.mil/au/awc/awcgate/ssi/afghan.pdf.
270 Id. at 8-11, 18, 26-28; see also Michael Gordon, "New"
U.S. War: Commandos, Airstrikes and Allies on the Ground, New York Times, Dec.
29, 2001, at A1; Thom Shanker, Conduct of War is Redefined by Success of
Special Forces, New York Times, Jan. 21, 2002, at A1.
271 See Yvonne Abraham, UN
Backs Reports of Mass Execution, Boston Globe, Nov. 14, 2001, at A33; Carlotta
Gall, A Nation Challenged: Prisoners, N.Y. Times, Dec. 11, 2001, at A1;
Nicholas Watt, Richard Norton-Taylor, & Luke Harding, Allies Justify Mass
Killing of Taliban Prisoners in Fort, Guardian (U.K.), Nov. 29, 2001, available
at http://www.globalpolicy.org/wtc/analysis/1129justify.htm;
Holly J. Burkhalter, POW Atrocities: An Ugly Lesson, L.A. Times, Oct. 14, 2002,
available at http://www.commondreams.org/views02/1014-04.htm;
Human Rights Watch, World Report 2003: Asia: Afghanistan, available at http://www.hrw.org/wr2k3/asia1.html.
272 See Barry Bearak, Uncertain Toll in the Fog of War: Civilian
Deaths in Afghanistan, N.Y. Times, Feb. 10, 2002, available at http://www.globalpolicy.org/wtc/analysis/2002/0211fog.htm;
Masuda Sultan, Thousands of Civilian Casualties, Miami Herald, Oct. 2, 2004,
available at http://www.miami.com/mld/miamiherald/news/opinion/9815562.htm?1c.
273 See, e.g., Barry Bearak, A Nation Challenged: The Victims, N.Y.
Times, Dec. 16, 2001, at 3B; Susan B. Glasser, Afghans Live and Die With US
Mistakes; Villagers Tell of Over 100 Casualties, Wash. Post, Feb. 20, 2002, at
A1; Human Rights Watch, Afghanistan: U.S. Military Should Investigate Civilian
Deaths (Dec. 13, 2003), at http://www.hrw.org/press/2003/12/afghanistan121303.htm.
Reporting by the New York Times in Afghanistan revealed that the deaths of
"as many as four hundred civilians" resulted from American forces
relying "on mistaken, incomplete, inaccurate and intentionally misleading
information provided by locale Afghans harboring vendettas." Matthew
Lippman, Aerial Attacks on Civilians and the Humanitarian Law of War:
Technology and Terror from World War I to Afghanistan, 33 Cal. W. Int'l L.J. 1,
59 (2002) (citing Dexter Filkins, Flaws in U.S. Air War Left Hundreds of
Civilians Dead, N.Y. Times, July 21, 2002, at A1).
274 See Barry Bearak, Unreconstructed, N.Y. Times, June 1, 2003,
available at http://www.afgha.com/?af=article&sid=33717.
275 See Ahmed Rashid, Hamid Karzai Moves from Lightweight to
Heavyweight in Afghan Politics, Eurasia Insight, Dec. 10, 2001, at http://www.eurasianet.org/departments/insight/articles/eav121001.shtml.
276 See Robert Fisk, Warlord of the Year: Gul Agha Shirzai, The
Independent (U.K.), Aug. 9, 2002, available at http://www.counterpunch.org/fisk0809.html.
277 See Gordon, supra note 270, at A1; Shanker, supra note 270, at A1.
278 See Ally of Afghan Leader Shot Dead, BBC News Online, Apr. 5,
2003, at http://news.bbc.co.uk/1/hi/world/south_asia/2919815.stm;
Biddle,supra note 269, at 11.
279 See UN Doc. S/2001/1154, Dec. 5, 2001 (relaying the
"Agreement on Provisional Arrangements in Afghanistan Pending the
Re-establishment of Permanent Government Institutions" signed in Bonn).
280 See id. § III(A)(2);
Kolhatkar, supra note 213, at 21-22; Norimitsu Onishi, A Nation Challenged: War
in South, N.Y. Times, Dec. 15, 2001, at A1; David Rohde, A Nation Challenged:
The Politics, N.Y. Times, Dec. 16, 2001, at B3. The shape of the new
administration came together when the three modernizing former lieutenants to
Northern Alliance military leader Ahmed Shah Massoud indicated their
willingness to serve under Karzai rather than their titular leader, former
President Rabbani, and were rewarded with positions heading the key government
ministries of Defense, Foreign Affairs, and Interior. See Rashid, supra note
161; Profile: Younis Qanooni, BBC News Online, Dec. 6, 2001, at
ttp://news.bbc.co.uk/1/hi/world/south_asia/1695218.stm; UNHCR, supra note 10, ¶
9 nn. 9-14.
281 See UNHCR, supra
note 10, ¶ 19, at 10.
282 See The Sound of the Sixties, supra note 71 ("Conservative
elements led by Abdul Rasul Sayyaf, a warlord who destroyed much of western
Kabul in the early 1990s (though he still teaches religion at Kabul
University), insisted that the provisional administration be designated as
'Islamic'.").
283 Afghans Claim U.S. Is Manipulating Loya Jirga, Holland Online
Sentinel, June 20, 2002, available at http://www.hollandsentinel.com/stories/061302/new_061302024.shtml;
Chris Otton, US Pressure May Undermine Karzai and Long-Term Ambitions:
Analysts, Agence France-Presse, June 20, 2002.
284 Warlords Demand Say in Future of Afghanistan, Toronto Star, June
14, 2002, at B4.
285 See World Bank, Afghanistan: Facts and Figures at a Glance (Apr.
2002), at http://lnweb18.worldbank.org/SAR/sa.nsf/Attachments/dat/$File/AfgData.pdf;
Afghanistan: Government Set to Tackle Maternal Mortality , United Nations
Integrated Regional Information Network (U.N. IRIN), May 1, 2003, at http://www.irinnews.org/report.asp?ReportID=33189&SelectRegion=Central_Asia&SelectCountry=AFGHANISTAN.report.asp?ReportID=33819&
SelectRegion=Central_Asia&SelectCountry=AFGHANISTAN; Amnesty International,
Afghanistan: Constitution Fails Women (Nov. 26, 2003), at http://web.amnesty.org/library/Index/ENGASA110272003?open&of=ENG-AFG;
Plight of "Forgotten Women" Needing Health Care in Rural Areas, U.N.
IRIN (May 14, 2004), at http://www.irinnews.org/report.asp?ReportID=39783&SelectRegion=Central_Asia&SelectCountry=AFGHANISTAN;
Physicians for Human Rights, Women's Health and Human Rights in Afghanistan
(2001), at http://www.phrusa.org/campaigns/afghanistan/Afghan_report_toc.html.
286 Rashid, supra note 161.
287 See Michael Moran, The Other Unfinished War, MSNBC, June 24, 2003,
at http://www.msnbc.msn.com/id/3340310.
288 See Farangis Najibullah, Afghanistan: Little Progress Seen in
Reform of Judicial System, Radio Free Europe, Mar. 10, 2003, at http://www.rferl.org/features/2003/03/11032003204729.asp.
289 See Rashid, supra note 10, at 83, 131.
290 See John Sifton, We're Losing The War in Afghanistan, Too,
SALON.COM, Aug. 21, 2003, at http://www.salon.com/news/feature/2003/08/21/afghanwar/index_np.html.
291 Id.
292 Loya Jirga Defuses Battle of Good and Evil, Deutsche
Presse-Agentur, June 12, 2002.
293 Saudi Arabia's "most senior Islamic cleric" has publicly
warned: "'Allowing women to mix with men is the root of every evil and
catastrophe.'" Robin Gedye, Unveiled Women Are Root of All Evil, Says
Saudi Cleric, Daily Telegraph (U.K.), Jan. 22, 2004.
294 Sifton, supra note 290.
295 See id.
296 See id.; Reporters Without Borders, Afghanistan: Supreme Court
Confirms Death Sentence for Two Journalists for "Blasphemy" (Aug. 6,
2003), at http://www.rsf.org/article.php3?id_article=7706.
297 For an exposition of the similarities and differences between
Pashtun culture and Taliban practice, see Isabel Hilton, The Pashtun Code, The
New Yorker, Dec. 3, 2001.
298 See Paisley Dodds, Afghan Women Jailed for Disobedience,
Associated Press, July 30, 2002.
299 See id.
300 See Yola Monakhov, Beaten, Abused, Chained. This Is One Afghan
Woman's "Liberation," Observer (U.K.), Oct. 5, 2003.
301 Seymour Hersh, The Other War, The New Yorker, Apr. 12, 2004.
302 See Human Rights Watch, Afghanistan: Paying for the Taliban's
Crimes: Abuses Against Ethnic Pashtuns in Northern Afghanistan (Apr. 2002),
at http://www.hrw.org/reports/2002/afghan2.
See also Anna Badkhen, Afghan Women Still Shrouded in Oppression, S.F. Chron.,
Oct. 14, 2002 ("Soldiers loyal to the powerful northern warlord Abdul
Rashid Dostum are alleged to have repeatedly raped women and girls in northern
Afghanistan.").
303 See Anna Badkhen, Reports of Rape, Looting by Afghan Militiamen,
S.F. Chron., Feb. 15, 2002, at A1.
304 Dexter Filkins & Barry Bearak, A Tribe Is Prey to Vengeance
After Taliban's Fall in North, N.Y. Times, Mar. 7, 2002.
305 See Human Rights Watch, supra note 302.
306 David Brunnstrom, Desperate Afghan Women Opt for Fiery Suicides,
Reuters, Apr. 16, 2004.
307 See Hersh, supranote 301.
308 See, e.g., UNHCR,
supra note 10, ¶ 48 at 21 (reporting that soldiers loyal to Ismail Khan
"have regularly committed acts of violence and intimidation against
persons and groups perceived to oppose his rule. His armed forces and agents
have made explicit threats to, arrested, harassed, and beaten members of
nascent political, civic, media, professional, and cultural groups.").
309 Human Rights Watch, All Our Hopes Are Crushed: Violence and
Repression in Western Afghanistan (2002), available at http://hrw.org/reports/2002/afghan3/herat1002-07.htm#P1061_165296.
310 See Human Rights Watch, We Want to Live As Humans: Repression of
Women and Girls in Western Afghanistan (Dec. 2002), available at http://www.hrw.org/reports/2002/afghnwmn1202/Afghnwmn1202-04.htm#P342_63329.
311 See id.
312 See Gary Thomas, Afghan President Must Still Negotiate Political
Minefield, Voice of America, Oct. 25, 2004, available at http://ibb7.ibb.gov/newswire/3f7b65d5.html.
313 Afghan President Karzai Declares State Based on Islamic
Principles, Deutsche Presse-Agentur, June 17, 2002.
314 Id.
315 See Sharon Lerner, What Women Want, Village Voice, Nov. 17, 2001,
at 53.
316 See International Crisis Group, Afghanistan: Judicial Reform and
Transitional Justice 16 (2003), available at http://www.crisisweb.org/home/getfile.cfm?id=309.
317 Nanji, supra note 5, at A9.
318 See Robyn Dixon, For Young Afghans, Love Is a Tale of Sorrow,
TheAge (Australia), Dec. 11, 2002.
319 See Nanji, supra note 5, at A9. Women are literally relegated to
the back of the bus under these segregationist policies. See also Belquis
Ahmadi, Reality Gap in Afghanistan, Wash. Post, July 8, 2002, at A17. Ms.
Ahmadi describes the situation on buses, the only form of transit for most
Afghan women (whose families can hardly afford automobiles on incomes of less
than $200 per year), as even worse than under the Taliban, when women were
forced into separate buses but "at least had seats on those buses."
Id.
320 Amin Tarzi, Afghan Women Complain about Lack of Progress, Radio
Free Europe, Feb. 27, 2003, available at http://www.rferl.org/reports/afghan-report/2003/03/9-140303.asp.
321 See Ron Synovitz, Division Between Islamists, Moderates Hampers
Effort on New Constitution, Eurasianet, Feb. 2, 2003, at http://www.eurasianet.org/departments/insight/articles/pp020103a_pr.shtml.
322 See Nanji, supra note 5, at A9; International Crisis Group, supra
note 316, at 16.
323 See Afghanistan: First Female Judges Association, U.N. IRIN, Jan.
9, 2003, at http://www.irinnews.org/report.asp?ReportID=31652&SelectRegion=Central_Asia&%20%3CBR%3ESelectCountry=AFGHANISTAN.
324 Marc Kaufman, U.S. Role Shifts as Afghanistan Founders, Wash.
Post, Apr. 14, 2003, at A10.
325 See Talking about a Constitution, Economist, Dec. 18, 2003,
available at http://www.economist.com/world/asia/displayStory.cfm?story_id
=2300564; J. Alexander Their, Judiciary Not Upholding Afghan Law, Seattle
Times, Jan. 30, 2004, available at http://seattlepi.nwsource.com/opinion/158606_afghanwomen30.html;
Scott Baldauf, Afghans Wary of Karzai Dealings, Christian Sci. Monitor, June 1,
2004, available at http://search.csmonitor.com/2004/0601/p06s02-wosc.html.
326 Sound of the Sixties, supra note 71.
327 See U.S. Institute of Peace, Establishing the Rule of Law in
Afghanistan (Mar. 2004), at http://www.usip.org/pubs/specialreports/sr117.html.
A small course of training of judges in "gender awareness" has begun.
UN Scheme to Teach Gender Awareness to Judicial Officers in Afghanistan, U.N.
News Service, Feb. 5, 2004, at http://www0.un.org/apps/news/story.asp?NewsID=9674&Cr=afghanistan&Cr1=.
328 See id.
329 See Farangis Najibullah, Afghanistan: Rights Groups Criticize
Torture, Abuse in Prisons, Radio Free Europe, July 20, 2003, at http://www.rferl.org/features/2003/07/14072003160601.asp.
330 See Victoria Burnett, Debate on Afghan Constitution Nears End:
Critics Fear Hard-Liners Will Get Too Much Power, Boston Globe, Dec. 27, 2003;
Xinhuanet, Afghan President Not to Make Alliance in Elections, June 1, 2004,
at http://news.xinhuanet.com/english/2004-06/01/content_1502397.htm.
331 See Bonn Agreement, § 6, U.N. Doc. S/2001/1154 (Dec. 5, 2001);
Carlotta Gall, In Warlord Land, Democracy Tries Baby Steps, N.Y. Times, June
11, 2003.
332 See UNAMA, The Constitutional Process (2003), at http://www.unama-afg.org/docs/Constitution/Draft%20Constitution%20Factsheet.doc.
333 See id.
334 See Danish Karokhel & Rahimullah Samander, Approval for Afghan
Constitution's Islamic Content, Institute for War and Peace Reporting, Nov. 13,
2003, at http://www.worldpress.org/Asia/1680.cfm.
335 See Afghanistan: Special Report on the New Constitution, U.N.
IRIN, June 2, 2003, at http://www.irinnews.org/report.asp?ReportID=34455&SelectRegion=Central_Asia&SelectCountry=AFGHANISTAN.
336 See UNAMA, supra note 332.
337 See id. See also U.S. Department of State, Women's Participation
in the Constitution-Making Process in Afghanistan (Oct. 1, 2003), at http://www.state.gov/g/wi/rls/24794.htm.
338 See Feinstein Int'l Famine Center, Human Security and Livelihoods
of Rural Afghans, 2002-2003, at 8 (2004), available at http://famine.tufts.edu/pdf/Mazurana2.pdf.
339 See Synovitz, supra note 321.
340 Id.
341 Benard & Hachigian, supra note 80, at 4.
342 See Human Rights Watch, Open Letter to President Hamid Karzai:
Insist on Equality in Constitution, Stand Up for Afghan Human Rights (Sept. 22,
2003), at http://www.hrw.org/press/2003/09/afghanistan092203-ltr.htm.;
Amnesty International, Open Letter to President Hamid Karzai on Human Rights
Protection and the Draft Constitution (Dec. 8, 2003), at http://web.amnesty.org/library/index/ENGASA110282003.
343 See Afghanistan: Special Report on the New Constitution, supra
note 335.
344 Women for Afghan Women, Afghan Women's Bill of Rights (Sept. 5,
2003), at http://www.womenforafghanwomen.org/events/BillofRights.html.
345 See (Draft) Afg. Const. of 2003, art. 1-2, available at http://www.constitution-afg.com/resrouces/Draft.Constitution.pdf.
346 Id., art. 3.
347 Id., art. 130.
348 Id., arts. 45, 63, 119.
349 Afg. Constitution of 1964, art. 64.
350 Golnaz Esfandieri, Afghanistan: Loya Jirga Adjourns Amid Disputes
Over Constitution, Radio Free Europe, Dec. 29, 2003, at http://www.rferl.org/features/2003/12/29122003152947.asp.
351 (Draft) Afg. Const. of 2003, art. 84.
352 See Masuda Sultan & Hannibal Travis, Bias Remains under the
New Law, Boston Globe, Nov. 13, 2003, available at http://www.boston.com/news/globe/editorial_opinion/oped/articles/2003/11/13/bias_remains_under_the_new_law/.
353 See Carlotta Gall, Women Draft Bill of Rights in New Afghan
Constitution, S.F. Chron., Sept. 28, 2003, available at http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2003/09/28/MN137202.DTL.
354 (Draft) Afg. Constitution of 2003, supra note 345, Arts. 22, 33,
35-36, 43, 50, 52.
355 Sultan & Travis, supra note 352.
356 See Amin Tarzi, Afghan Women's Group Wants Amendments to Draft
Constitution, Radio Free Europe (Nov. 10, 2003), at http://www.rferl.org/newsline/2003/11/6-SWA/swa-101103.asp;
see also Gender and Law Working Group, Recommendations on the Draft
Constitution for Strengthening Women's Political Participation and Securing
Women's Human Rights (2003), available at http://www.nodo50.org/ddhhmujeres/afganistan_genderandlaw.htm.
357 Bush: Afghanistan Is a Victory Over Terrorism, CNN.com (June 15,
2004), at http://www.cnn.com/2004/US/06/15/karzai/index.html.
358 Agence France-Presse, US, UN Envoys Welcome Afghan Constitution,
Outlook India (Jan. 5, 2004), at http://www.outlookindia.com/pti_news.asp?id=192469.
359 Afg. Const. of 2004, art. 22, available at http://www.constitution-afg.com/resrouces/1382Constitution.pdf.
360 See Afg. Const. of 1976, art. 27, available at http://www.afghan-web.com/history/const/const1976.html;
Afg. Const. of 1987, art. 33, available at http://www.afghan-web.com/history/const/const1987.html;
Nawabi, supra note 12, at 20.
361 See Afg. Const. of 2004, art. 82-84.
362 Such protections were proposed by a Gender and Law Working Group,
which was headed by the Minister for Women's Affairs and includes two members
of the Supreme Court, four other judges, two members of the Afghan Independent
Human Rights Commission, two members of the Judicial Reform Commission,
representatives of the Attorney General's Office and Ministry of Foreign
Affairs, professors of law and Sharia at Kabul University, and several leaders
of nongovernmental human rights organizations. See Lauryn Oates & Isabelle
Solon Helal, At the Cross-Roads of Conflict and Democracy: Women and
Afghanistan's Constitutional Loya Jirga, Rights and Democracy, at Appendix C
(May 2004), available at http://www.peacewomen.org/resources/Afghanistan/RDLoyaJirga2004.pdf.
363 See id. at 25-33.
364 See id. at 27.
365 Amy Waldman, Meeting on New Constitution, Afghan Women Find Old Attitudes,
N.Y. Times, Dec. 16, 2003, available at http://www.peacewomen.org/news/Afghanistan/Dec03/old.html.
366 Oates & Helal, supra note 362, at 32.
367 Afg. Const. of 2004, supra note 359, Art. 3
368 Hamida Ghafour, Afghanistan Gets New Name and a Constitution, L.A.
Times, Jan. 6, 2004, available at http://www.smh.com.au/articles/2004/01/05/1073267970952.html.
369 Rob Moll, Afghan Constitution Provides Little Protection for
Religion, Christianity Today, Jan. 17, 2004, available at http://www.christianitytoday.com/ct/2004/102/42.0.html.
See also Oates & Helal, supra note 362, at 43; Ghafour, supra note 368; G.
Rauf Roashan, Afghan Constitution an Exercise in Nation Building: A Test in
Social Organization, Loya Jirga Report (2004), at http://www.institute-for-afghan-studies.org/Contributions/Commentaries/DRRoashan/The-Loya-Jirga-Report.htm#Conclusions.
370 See J. Alexander Thier, Attacking Democracy From the Bench, N.Y.
Times, Jan. 26 2004, available at http://www.pacificcouncil.org/public/publications/articles/thier_012604.asp;
Alex Spillius, Afghans to Carry On Stoning Criminals, The Daily Telegraph
(U.K.), Jan. 25, 2002, available at http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2002/01/25/wtal325.xml&sSheet=
/news/2002/01/25/ixnewstop.html..
371 Afg. Const. of 2004, art. 121.
372 Thier, supra note 370.
373 See Sultan & Travis, supra note 352.
374 See Id.; Afg. Const. of 2004, art. 62, 72, 85, 118.
375 Amnesty International, supra note 342.
376 Sultan & Travis, supra note 352.
377 Ilene R. Prusher, Ex-Taliban Officials Change Headdress, Resume
Duties, Christian Sci. Monitor, Jan. 14, 2002, available at http://www.csmonitor.com/2002/0114/p12s1-wosc.html.
378 James Ingalls, The New Afghan Constitution: A Step Backwards for
Democracy, Foreign Policy In Focus, Mar. 2004, at http://www.fpif.org/pdf/papers/SR2004afghanconst.pdf..
379 Id.
380 Afghans Endorse New Constitution, BBC NewsOnline, Jan. 4, 2004, at
http://news.bbc.co.uk/1/hi/world/south_asia/3366455.stm.
381 See Carlotta Gall, News Analysis: Afghan Constitution Offers Slim
Hope in a Land Where Warlords Rule, Int'l Herald Trib., Jan. 15, 2004,
available at http://www.iht.com/articles/125027.html.
382 Id.
383 See Kathy Gannon, Afghanistan Unbound, 83 Foreign Aff. 35 (2004)
("The warlords have stolen people's homes, arbitrarily arrested their
enemies, and tortured them in private jails"); see also Carlotta Gall,
Afghan Parliamentary Elections May Be Delayed Again, N.Y. Times, July 9, 2004,
at A 10.
384 Hundreds of thousands of people may have died during the Crusades,
in which numerous massacres of Jews, Muslims, and Christians took place. See 6
Edward Gibbon, History of the Decline and Fall of the Roman Empire n.70 &
accompanying text (1788), available at http://www.gutenberg.org/dirs/etext96/6dfre10.txt.
385 Religious wars killed millions of Germans and hundreds of
thousands of British subjects. See Alan MacFarlane, The Savage Wars of Peace 51
(2003); Roger Hutchinson, Embattled Britain, The Scotsman (U.K.), Mar. 6, 2004,
available at http://thescotsman.scotsman.com/s2.cfm?id=260402004.
386 The Spanish carried out their genocide of Native Americans in the
name of Catholicism. See, e.g., George J. Annas, The Man on the Moon,
Immortality, and Other Millennial Myths: The Prospects and Perils of Human
Genetic Engineering, 49 Emory L.J. 753, 754-56 (2000). Similarly, the U.S.
policy of a "Manifest Destiny" to Christianize the New World
contributed to its genocide of Native Americans. See, e.g., Lindsay Glauner,
The Need for Accountability and Reparation: 1830-1976 The United States
Government's Role in the Promotion, Implementation, and Execution of the Crime
of Genocide Against Native Americans, 51 DePaul L. Rev. 911, 911-12
(2001-2002); Robert B. Porter, The Demise of the Ongwehoweh and the Rise of the
Native Americans: Redressing the Genocidal Act of Forcing American Citizenship
Upon Indigenous Peoples, 15 Harv. Blackletter L.J. 107, 108-9 (1999).
387 The mass killings of black Africans in South Africa had strong
religious roots. See Courtney W. Howland, The Challenge of Religious
Fundamentalism to the Liberty and Equality Rights of Women: An Analysis under
the United Nations Charter, 35 Colum. J. Transnat'l l. 271, 362-64 (1997);
Colin Martin Tatz, With Intent to Destroy: Reflections on Genocide 107-9
(2003).
388 The Turkish genocide against 1.5 million Armenian Christians and
hundreds of thousands of Assyrian and Greek Christians had "holy war"
aspects associated with fundamentalist Islam. See Peter Balakian, The Burning
Tigris: The Armenian Genocide and America's Response 339 (2003); Chaldean
Victims of the Turks, The Times (U.K.), Nov. 22, 1919, at 11 (250,000 Assyrians
died due to Turkish persecutions and famine).
389 The partition of British India into India and Pakistan resulted in
the murders of hundreds of thousands of Muslims and Hindus by their
"religious opponents." Eric Hobsbawm, The Age of Extremes: A History
of the World, 1914-1991, at 219 (1994). In 1971, the fundamentalist Pakistani
government "systematically slaughtered" the Hindu community in
rebellious East Pakistan, present-day Bangladesh, and confiscated their homes
and businesses, even painting some with Nazi-like yellow patches marked
"H" for Hindu. Jaideep Saikia, Terror Sans Frontiers: Islamic
Militancy in North East India, Acdis Occasional Paper (July 2003), Chapter
Three, at http://www.acdis.uiuc.edu/Research/OPs/Saikia/contents/chap_three.html.
More recently, Hindu fundamentalism played a prominent role in the massacres of
thousands of Indian Muslims in Gujarat in 2002. See Smita Narula, Overlooked
Danger: The Security and Rights Implications of Hindu Nationalism in India, 16
Harv. Hum. Rts. J. 41, 49-56 (2003).
390 The fundamentalist government of Sudan is now blamed for more than
two million war deaths. See William L. Saunders Jr. & Yuri G. Mantilla,
Human Dignity Denied: Slavery, Genocide, and Crimes Against Humanity in Sudan,
51 Cath. U.L. Rev. 715, 715 (2001-2002); Bassam Tibi, The Challenge of
Fundamentalism: Political Islam and the New World Disorder 168 (1998).
391 Afg. Const. of 2004, supra note 359, Art. 35.
392 International Crisis Group, Elections and Security in Afghanistan
(Mar. 30, 2004), at http://www.crisisweb.org/home/index.cfm?id=2554&l=1.
393 See Afg. Const. of 2004, art. 34. Compare Afg. Const. of 1964,
art. 31.
394 Stephen Graham, Afghan TV Airs First Woman Singer in 10 Years, The
Independent (U.K.), Jan. 14, 2004, available at http://news.independent.co.uk/world/asia/story.jsp?story=481000.
395 See Human Rights Watch, Afghanistan: Former Women's Minister
Intimidated (June 26, 2002), at http://www.hrw.org/press/2002/06/afghan0626.htm;
Shea, supra note 26; Amir Shah, Protesters in Afghan Capital Call For
Authorities to Try Journalist Accused of Blasphemy, Associated Press, July 3,
2003, available at http://web.lexis-nexis.com.turing.library.northwestern.edu/universe/document?_m=9877925d78d4474640a30175db7e1f35&_docnum=1&wchp=dGLbVlz-zSkVA&_md5=37715e4bec93debfad0d9cc299629c3e;
Anne Applebaum, Faith and Freedom, Wash. Post, Dec. 24, 2003, at A15; Reporters
Sans Frontieres, Afghanistan - 2004 Annual Report, available at http://www.rsf.org/article.php3?id_article=10144.
396 See Human Rights Watch, Afghanistan: Karzai Fails on Press
Freedom: Editors of Kabul Newspaper Still Detained (June 24, 2003), at http://www.hrw.org/press/2003/06/afghan062403.htm.
397 See Reporters Sans Frontieres, supra note 395.
398 Afg. Const. of 2004, art. 2.
399 Spillius, supra note 370.
400 George Thomas, Afghan Iron Curtain: The Post-Taliban Islamic
Fanaticism, CBN News, Jan. 17, 2004, at http://cbn.com/CBNNews/News/021212a.asp.
401 See id.
402 Spillius, supra note 370.
403 Compare Leviticus 20:10 and Deuteronomy 22:22-24, with Jane
Little, Debate Rages over Women and Sharia, BBC News Online , June 11, 2003, at
http://news.bbc.co.uk/1/hi/world/2977446.stm.
404 See Reuters, Afghan Woman Stoned to Death for Adultery, National
Post (Canada), Apr. 25, 2005, at A11; Canadian Broadcasting Corporation, Iran
to Abolish Stoning, Dec. 27, 2002, available at http://cbc.ca/storyview/CBC/2002/12/27/stoning021227.
405 See Laurie Goering, Afghans' Islamic Law Calls for Compassion,
Chi. Trib., July 1, 2002, available at http://www.afgha.com/?af=article&sid=15237.
406 Afg. Const. of 2004, art. 64(18).
407 See Goering, supra note 405.
408 Spillius, supra note 370.
409 Breakfast with Hamid Karzai, Council on Foreign Relations (Sept.
13, 2002), available at http://64.233.161.104/search?q=cache:tdWx3ZDuHooJ:www.cfr.org/pub4836/cfr/breakfast_with_hamid_karzai.php+%22provided+with+all+the+means+of+work+and+earning+and+making+a+life%22&hl=en.
410 See Lockyer v. Andrade, 583 U.S. 63 (2003) (upholding sentence of
between 25 years and life in prison for stealing golf clubs); Ewing v.
California, 538 U.S. 11 (2003) (upholding sentence of between 50 years and life
in prison for stealing videotapes). For an overview of government and other
data on prison rape, see Stop Prison Rape, The Basics on Rape Behind Bars
(2004), available at http://www.spr.org/en/doc_01_factsheet.html.
411 See UNHCR, Committee Against Torture Issues Conclusions and
Recommendations on Reports of Luxembourg and Saudi Arabia, (May 15, 2002),
available at http://www.unhchr.ch/huricane/huricane.nsf/0/108A38F0B79E9B13C1256BBB00263085?opendocument.
412 See Howland, supra note 387, at 279, 283, 288, 292, 294-95,
299-300, 308, 313, 318-19.
413 See Cheryl Benard, French Tussle over Muslim Head Scarf Is
Positive Push for Women's Rights, Christian Sci. Monitor, Jan. 5, 2004,
available at http://www.csmonitor.com/2004/0105/p09s01-coop.html.
414 U.S. Department of State, Bureau of Democracy, Human Rights and
Labor, Report on the Taliban's War Against Women (Nov. 17, 2001), available at http://www.state.gov/g/drl/rls/index.cfm?id=4804.
415 See, e.g., Colin Powell Holds Press Conference, CNN.Com (CNN
television broadcast, Nov. 19, 2001), transcript available at http://www.cnn.com/TRANSCRIPTS/0111/19/se.03.html;
("Now, in recent days, as the curtain has been lifted, we have seen on
television the joyous pictures of liberated Afghans, of women throwing off
their burqas...."); Larry King Live: Interview with Heather Merecer and
Dayna Curry; Interview with Sen. Carl Levin and Sen. John Warner (CNN
television broadcast, Nov. 27, 2001), transcript available at http://www.cnn.com/TRANSCRIPTS/0111/27/lkl.00.html
(similar).
416 See Halima Kazem, In Afghanistan, Laura Bush Focuses on Roles of
Women, Christian Sci. Monitor, Mar. 31, 2005, at 7 (quoting Afghan woman about
her continuing fear of traveling outside of Kabul without wearing her burqa);
Jon Sawyer, Most Afghan Warlords Ignore Calls to Disarm Before Elections, St.
Louis Post-Dispatch, June 13, 2004 ("The great majority [of Afghan women]
still wear the pale blue, full-body covering known as the burqa."); Ellen
Goodman, 'Liberated' But Not Free, Wash. Post, Sept. 6, 2003, at A19
("Outside the cities, modern women no longer wear the burqas by fiat; they
wear them because of fear. In places where warlords rule the roads and Islamic
clerics rule the courts, little has changed.").
417 See Benard, supra note 413; Nanji, supra note 5, at A9.
418 Benard, supra note 413.
419 See Nanji, supra note 5, at A9.
420 See Amnesty International, Afghanistan: Re-establishing the Rule
of Law 40-47 (Aug. 2003), at http://web.amnesty.org/library/pdf/ASA110212003ENGLISH/$File/ASA112103.pdf;
Declan Walsh, Young Lovers Left Stranded in Afghan Legal Limbo: Control of the
Justice System By Mullahs Leads to Confusion Between Custom and Law,
TheGuardian (U.K.), Nov. 11, 2004, at 21.
421 See Nanji, supra note 5, at A9.
422 Id.
423 U.S. Department of State, News Release: Remarks by Secretary of
State Colin L. Powell (Nov. 20, 2001), available at http://hongkong.usconsulate.gov/pas/pr/2001/112002.htm.
424 See Danesh Kerokhel, In Afghanistan, Marriage Is a Sentence,
Tallahassee Democrat, July 12, 2002, available at http://www.tallahassee.com/mld/democrat/news/opinion/3644918.htm.
425 See id.
426 Id.
427 See Amnesty International, Post-Taleban, Post-War: Justice for
Women in Afghanistan? (Oct. 6, 2003), available at http://www.amnesty.org.uk/deliver/document/14912.
428 See Haseena Sulaiman & Lailuma Saded, Forced Marriage Ban
Possible, Inst. Of War And Peace Reporting, Dec. 17, 2003, at http://www.iwpr.net/index.pl?archive/arr/arr_200312_87_2_eng.txt.
429 See, e.g., Badkhen, supra note 302; Valerie Reitman,
Self-Immolations on Rise in Afghanistan, L.A. Times, Nov. 17, 2002; Anna
Badkhen, Liberation Eludes Afghan Women, S.F. Chron., Apr. 16, 2004, at A1;
James Astill, Bad Treatment Spurs Women to Suicide, Wash. Times, May 08, 2004,
available at http://washingtontimes.com/world/20040507-101445-8579r.htm.
430 See Reitman, supra note 429; Agence France-Presse, Taliban-style
Repression Reasserts Itself in Herat, Mar. 11, 2004, available at http://www.taipeitimes.com/News/world/archives/2004/03/11/2003102001.
431 See Keith B. Richburg, In Search of Freedom, Afghan Wives Make a
Grisly Choice, Wash. Post, Oct. 28, 2004, at A16.
432 See Id.
433 Jeffrey Donovan, Afghanistan: Rights Activists Temper U.S. Picture
of Progress for Women, Radio Free Europe, Mar. 9, 2004, at http://www.rferl.org/featuresarticle/2004/03/4112ac48-df35-4087-b76a-93910e8e8d0f.html.
434 See Amnesty International, supra note 427;Human Rights Watch,
supra note 310; Kerokhel, supra note 424.
435 Philip Smucker, Rights Still Lag for Afghan Women, Christian Sci.
Monitor, June 14, 2002, available at http://www.reliefweb.int/w/rwb.nsf/0/5b7b3be22ac86c88c1256bd8004004f7?OpenDocument.
436 Amnesty International, supra note 420, at 46-7.
437 Id.
438 Amnesty International, Afghanistan 'No One Listens to Us and No
One Treats Us as Human Beings': Justice Denied To Women (Oct. 6, 2003), at http://www.web.amnesty.org/library/index/engasa110232003.
439 U.S. Department of State, supra note 456, at "Denied
Education and Health Care."
440 See Supplementary Convention on the Abolition of Slavery, the Slave
Trade, and Institutions and Practices Similar to Slavery, entered into force
Apr. 30, 1957, 226 U.N.T.S. 3, quoted in UNHCR, Abolishing Slavery and its
Contemporary Forms, HR/PUB/02/04 (2002), at http://www.antislavery.org/homepage/resources/Weissbrodt%20report%20final%20edition%202003.pdf.
441 Id., art. 1.
442 The Universal Declaration of Human Rights, art. 16(1), available
at http://www.un.org/Overview/rights.html.
443 Id., Art. 16(2).
444 Amnesty International, supra note 342.
445 Amnesty International, supra note 420.
446 See Report of the Secretary-General on the Situation of Women and
Girls in the Territories Occupied by Afghan Armed Groups, U.N. Commission on
Human Rights, Sub-Commission on the Promotion and Protection of Human Rights,
54th Sess., U.N. Doc. E/CN.4/Sub.2/2002/27 (2002); Carlotta Gall, Women Gather
In Afghanistan To Compose A Bill of Rights, N.Y. Times, Sept. 18, 2003,
available at http://www.womenforafghanwomen.org/press/NYTimes092803.html.
447 See Jyotsna Singh, Move to Stop Indian Child Marriages, BBC News
Online, May 4, 2002, available at http://news.bbc.co.uk/1/hi/world/south_asia/1986826.stm.
448 See Amnesty International, supra note 420, at 40.
449 See id.
450 See id., at 46-47.
451 Agence France-Presse, Islam 'Only Source' of Law in Afghanistan,
Daily Times (Pakistan), Apr. 5, 2003, available at http://www.dailytimes.com.pk/default.asp?page=story_4-5-2003_pg4_14.
452 Kecia Ali, Special Focus: Islam, Consent and Forced Marriage, The
Feminist Sexual Ethics Project (June 19, 2003), at http://www.brandeis.edu/projects/fse/Pages/consentandforcedmarriage.html;
see also Sara Hossain & Suzanne Turner, Abduction for Forced Marriage --
Rights and Remedies in Bangladesh and Pakistan, 1-64 International Family Law
15 (2001), available at http://www.soas.ac.uk/honourcrimes/FMarticleHossain.pdf.
453 In particular, women's illiteracy, lack of power, and distrust of
costly and time-consuming divorce proceedings ultimately in the hands of
fundamentalist judges, make successful applications for divorce very unlikely.
Cf. Hossain & Turner, supra note 452, at 15-24.
454 See U.N. Children's Fund, UNICEF: Child Marriages Must Stop (Mar.
7, 2001), at http://www.unicef.org/newsline/01pr21.htm; Child
Marriage 'Violates Rights,' BBC News Online, Mar. 7, 2001, at http://news.bbc.co.uk/1/hi/world/1206979.stm.
455 See Afg. Const. of 2004, art. 7 ("The state shall abide by
the UN charter, international treaties, international conventions that
Afghanistan has signed, and the Universal Declaration of Human Rights.").
456 See id. art. 3 ("no law can be contrary to the beliefs and
provisions of Islam").
457 Among other differences, the ferocity of the Iraqi insurgents is
unmatched by the Taliban's remnants and sympathizers, whether due to the Afghan
people's doleful memories of Taliban rule, the decision of the U.S. to allow
local warlords to more or less have their way outside of Kabul, or pure
exhaustion after 25 years of nearly uninterrupted war since 1978. See
Associated Press, U.S. Death Toll in Afghanistan Hits 100, TheHolland Sentinel,
Jan. 13, 2004, available at http://www.hollandsentinel.com/stories/011304/new_011304037.shtml.
458 See Women's Rights, Human Rights, and Afghan Groups Urge Increased
Funding for Afghanistan's Reconstruction and Security, Feminist Majority
Foundation et al., Oct. 10, 2003, available at
http://www.humanrightsfirst.org/middle_east/ltr_supplemental_house101003.pdf.
459 See Sara Beck, The Battle for Iraq: BBC News Correspondents on the
War Against Saddam 137-38, 160 (2003); Said K. Aburish, How Saddam Hussein Came
to Power, in The Saddam Hussein Reader 41 (Turi Munthe ed., 2002); David
Morgan, Ex-U.S. Official Says CIA Aided Baathists, Reuters, Apr. 20, 2003,
available at http://www.commondreams.org/headlines03/0420-05.htm;
Allan Little, Saddam's Parallel Universe, BBC News Online, Jan. 26, 2003, at http://news.bbc.co.uk/2/low/programmes/from_our_own_correspondent/2694885.stm
460 See Roger Morris, A Tyrant 40 Years in the Making, N.Y. Times,
Mar. 14, 2003, at A29; Sami Ramadani, Whose Interests at Heart?, The Guardian
(U.K.), Mar. 18, 2003, available at http://politics.guardian.co.uk/comment/story/0,9115,916310,00.html.
461 See Chris Cook, The Facts on File:World Political Almanac 296 (3d. ed. 1995)
(400,000 Iraqis died in Iran-Iraq war); Robert L. Maginnis, Outside View: The
Morality of U.S. Policy, Insight on the News, Sept. 2, 2002, available at http://www.insightmag.com/news/2002/09/23/DailyInsight/Outside.View.The.Morality.Of.U.Policy-265652.shtml
(similar estimate of 400,000 Iraqi deaths in war with Iran); Toting the
Casualties of War, Business Week, Feb. 6, 2003, available at http://www.businessweek.com/bwdaily/
dnflash/feb2003/nf2003026_0167_db052.htm (demographer at U.S. Commerce
Department estimated 205,000 deaths due to Gulf War).
462 See Human Rights Watch, Genocide in Iraq: The Anfal Campaign
Against the Kurds § 2 (1993), at http://hrw.org/reports/1993/iraqanfal/ANFAL2.htm; Neighbours
from Hell, The Economist, Dec. 12th, 2002, available at http://www.economist.com/world/africa/displayStory.cfm?story_id=1494035.
463 See Peter W. Galbraith, The Ghosts of 1991, Wash. Post, Apr. 12,
2003, at A19, available at http://www.washingtonpost.com/ac2/wp-dyn/A10874-2003Apr11?language=printer;
Kenneth Roth, Try Saddam in an International Court, Int'l Herald Trib., Dec.
15, 2003, available at http://www.iht.com/articles/121445.html.
464 See Robert Windrem, Rumsfeld Key Player in Iraq Policy Shift,
MSNBC, Aug. 18, 2002, at http://www.independent-media.tv/item.cfm?fmedia_id=228&fcategory_desc=Under%20Reported;
Robert Novak, Following Iraq's Bioweapons Trail, Chicago Sun-Times, Sept. 26,
2002, available at http://foi.missouri.edu/terrorbkgd/following.html;
Associated Press, Iraq Got Seeds for Bioweapons from U.S., Baltimore Sun, Oct.
1, 2002, available at http://www.baltimoresun.com/news/nationworld/bal-te.bioweapons01oct01,0,4635016.story?coll=bal%2Dhome%2Dheadlines;
Human Rights Watch, Landmines in Iraq: Questions and Answers (Dec. 2002),
available at http://www.hrw.org/campaigns/iraq/iraqmines1212.htm;
Associated Press, Iraq Used Many Suppliers for Nuke Program, Fox News.Com, Dec.
17, 2002, available at http://www.foxnews.com/story/0,2933,73292,00.html;
Patrick E. Tyler, Officers Say U.S. Aided Iraq in War Despite Use of Gas, N.Y.
Times, Aug. 18, 2002, available at http://www.commondreams.org/headlines02/0818-02.htm;
Joost R. Hiltermann, America Didn't Seem to Mind Poison Gas, Int'l Herald
Trib., Jan. 17, 2003, available at http://www.commondreams.org/views03/0117-01.htm;
Iraq Must First Dig Out of Massive Debt to Recover $358b Owed, Straits Times
(Singapore), Apr. 19, 2003, available at http://straitstimes.asia1.com.sg/iraqwar/story/0,4395,184295,00.html;
Associated Press, France Pledges Gesture on Forgiving Debt, Fox News.Com, Dec.
15, 2003, available at http://www.foxnews.com/story/0,2933,105856,00.html.
465 See Iraq, CNN.Com (2001), at http://www.cnn.com/SPECIALS/2001/gulf.war/updates/iraq.
466 See U.N. Children's Fund, Situation Analysis of Children and Women
in Iraq - 1997, at 10 (1998), at http://www.childinfo.org/Other/Iraq_sa.pdf.
467 See George Lopez, Not So Clean, Bulletin Of The Atomic Scientists,
Sept. 1991, available at http://www.thebulletin.org/issues/1991/s91/s91lopez.html;
Greg Barrett, Running Dry: Sanctions Hit Iraq's Young the Hardest, Seattle
Times, Aug. 4, 2002, available at http://www.commondreams.org/headlines02/0804-04.htm;
Thomas J. Nagy, The Role of "Iraq Water Treatment Vulnerabilities" in
Halting One Genocide and Preventing Others
(2001), at http://home.gwu.edu/~nagy/iwtv-ags.htm.
468 See Iraq Condemns Embargo on 9th Anniversary of Sanctions,
CNN.Com, Aug. 6, 1999, available at http://www.cnn.com/WORLD/meast/9908/06/iraq.sanctions
(citing "United Nations estimates").
469 See U.N. Children's Fund, Iraq Surveys Show "Humanitarian
Emergency" (Aug. 12, 1999), at http://www.unicef.org/newsline/99pr29.htm.
Iraqi national income plunged to 1940s levels and the health care system
virtually collapsed. See U.N. Children's Fund, supra note 466, at 16-17; World
Health Organization, Iraqi Health System Close to Collapse, Says WHO
Director-General (Feb. 27, 1997), at http://www.who.int/archives/inf-pr-1997/en/pr97-16.html.
The sanctions, originally imposed to pressure Iraq to leave Kuwait, were
continued long after the end of the Gulf War, their basis shifting to
eliminating Iraq's chemical and biological weapons and nuclear weapons
development program, even though Iraq had destroyed its banned weapons in 1991,
and the sanctions themselves caused more deaths than all the weapons of mass
destruction ever used in the course of human history. See Joy Gordon, Cool War:
Economic Sanctions as a Weapon of Mass Destruction, Harper's Magazine , Nov.
2002, available at http://www.harpers.org/CoolWar.html; Final
Report: Iraq Had No WMDs, USA Today, Oct. 6, 2004, available at http://www.usatoday.com/news/world/iraq/2004-10-06-wmd_x.htm;
John Mueller & Karl Mueller, Sanctions of Mass Destruction, Foreign
Affairs, May/June 1999, available at http://www.foreignaffairs.org/19990501faessay979/john-mueller-karl-mueller/sanctions-of-mass-destruction.html?mode=print.
470 See President Bush's Address to the United Nations, CNN.Com, Sept.
12, 2002, at http://www.cnn.com/2002/US/09/12/bush.transcript.
471 See, e.g., Nicholas Kristof, The Man with No Ear , N.Y. Times,
June 27, 2003, available at http://www.nytimes.com/2003/06/27/opinion/27KRIS.html;
Wolf Blitzer, Did the Bush Administration Exaggerate the Threat from Iraq?,
CNN.Com, July 8, 2003, available at http://www.cnn.com/2003/ALLPOLITICS/07/08/wbr.iraq.claims
.
472 See James Risen, Iraq Said to Have Tried to Reach Last-Minute Deal
to Avert War , N.Y. Times, Nov. 5, 2003, available at http://www.commondreams.org/headlines03/1106-02.htm;
Michael Isikoff & Mark Hosenball, Lost Opportunity?, Newsweek (Web
Exclusive), Nov. 5, 2003, at http://www.msnbc.com/news/989704.asp; Julian
Borger, Brian Whitaker & Vikram Dodd, Saddam's Desperate Offers to Stave
Off War, The Guardian (U.K.), Nov. 7, 2003, available at http://www.guardian.co.uk/Iraq/Story/0,2763,1079769,00.html.
473 See Bush Sought 'Way' To Invade Iraq?, CBS News.Com, Jan. 11,
2004, available at http://www.cbsnews.com/stories/2004/01/09/60minutes/main592330.shtml.
474 See Bob Woodward, Plan of Attack 408 (2004).
475 This is the conclusion of a team of researchers led by the Johns
Hopkins Bloomberg School of Public Health, who randomly surveyed almost 1,000
Iraqi households in September 2004. Elisabeth Rosenthal, Iraqi Civilian Toll
Since the Invasion Is Estimated at 100,000, Int'l Herald Trib., Oct. 29, 2004,
available at http://www.iht.com/bin/print_ipub.php?file=/articles/2004/10/28/news/toll.html.
476 See id.
477 See European Commission, Iraq: Commission Sets Priorities for Aid
in 2004 (Mar. 4, 2004), available at http://europa.eu.int/comm/external_relations/iraq/news/ip04_303.htm;
Maureen Fan, Iraq: Infant Mortality Rises with Chaos, Miami Herald, Nov. 23,
2003, available at http://www.miami.com/mld/miamiherald/news/world/7329400.htm.
478 See Jeffrey Gettleman, Chaos and War Leave Iraq's Hospitals in
Ruins , N.Y. Times, Feb. 14, 2004, available at http://www.veteransforpeace.org/Chaos_and_war_021404.htm;
Robert Fisk, For the People On the Streets, This Is Not Liberation but a New
Colonial Oppression, The Independent (U.K.), Apr. 17, 2003, available at http://argument.independent.co.uk/commentators/story.jsp?story=397925.
479 See CPA, Administrator's Weekly Report, Essential Services (Sept.
21-27, 2003), at http://www.iraqcoalition.org/ES/consolidated/Essential%20Services%20Sept%2021-27%202003.doc.
The CPA had hired only 15,000 Iraqis to work on reconstruction projects, after
firing hundreds of thousands of Iraqi government workers, including tens of
thousands of teachers. See Aaron Mate, Pillage Is Forbidden: Why the
Privatisation of Iraq Is Illegal, The Guardian (U.K.), Nov. 7, 2003, available
at http://www.guardian.co.uk/comment/story/0,3604,1079562,00.html;
Richard Sale, Iraqi CPA Fires 28,000, Wash. Times, Nov. 22, 2003, available
at http://www.washtimes.com/upi-breaking/20031121-063046-9047r.htm.
480 See U.N. Children's Fund, At a Glance: Iraq (2004), at http://www.unicef.org/infobycountry/iraq.html.
481 See Iraq Reconstruction: Education, BBC News Online, Apr. 7, 2004,
at http://news.bbc.co.uk/1/hi/world/middle_east/3605821.stm.
482 See Dexter Filkins, Kurds Advancing to Reclaim Land in Northern
Iraq, N.Y. Times, June 20, 2004 (100,000 Arabs displaced from their homes in
northern Iraq alone since the war); Iraq: New Housing Project for Displaced
People, U.N. IRIN, June 8, 2004, at http://www.irinnews.org/report.asp?ReportID=41465&SelectRegion=Iraq_Crisis&SelectCountry=IRAQ
(50,000 people displaced due to fighting in Fallujah alone).
483 See Pamela Constable, Women in Iraq Decry Decision to Curb Rights:
Council Backs Islamic Law on Families, Wash. Post, Jan. 16, 2004, available at http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&
node=&contentId=A21321-2004Jan15¬Found=true.
484 Rajiv Chandrasekaran, Iraq Fails to Meet Bush Deadline, The Age
(Australia), Mar. 1, 2004, available at http://www.theage.com.au/articles/2004/02/29/1077989432265.html?from=storyrhs.
See also Rajiv Chandrasekaran, Iraqis Divided Over Charter: Shi'ites Walk Out
Amid A Dispute, Wash. Post, Feb. 28. 2004, available at http://www.boston.com/news/world/articles/2004/02/28/iraqis_divided_over_charter?mode=PF.
485 Law of Administration for the State of Iraq for the Transitional
Period (Mar. 8, 2004), available at http://www.cpa-iraq.org/government/TAL.html.
486 Nina Shea, Religious Freedom Gap for Iraq?, Wash. Times, Nov. 9,
2003, available at http://freedomhouse.org/religion/news/bn2003/bn-2003-11-09.htm?article_id=170.
487 The Iraqi constitution in effect at the time of the 2003 war was
adopted in 1970, and contained only one reference to Islam, proclaiming it to
be the "religion of the State" but not requiring all laws to conform
to its tenets. See Iraq Const. of 1970, Art. 4. Even the 1925 constitution only
contemplated that Islamic law govern Muslims and that Jews and Christians
exercise jurisdiction over themselves in such matters. See Iraq Const. of 1925,
Art. 77-80, available at http://www.mallat.com/iraq%20const%201925.htm.
The TAL does not allow Christians or Jews to apply their religious laws if they
depart from the tenets of Islam, a clear example of discrimination. See Law of
Administration for the State of Iraq for the Transitional Period, Art. 7, supra
note 485; Bruce Fein, Flawed Interim Constitution, Wash. Times, Mar. 23, 2004,
available at http://www.washtimes.com/commentary/20040322-082831-2551r.htm.
488 See Fein, supra note 487.
489 Transcript: Political Authority Handover Ceremony, Wash. Post,
June 28, 2004, available at http://www.washingtonpost.com/ac2/wp-dyn/A11428-2004Jun28?language=printer.
490 See Steven R. Weisman, Bush Plan Will Limit Sovereignty for
Iraqis, N.Y. Times, Apr. 23, 2004, available at http://www.chron.com/cs/CDA/ssistory.mpl/special/iraq/2525467;
Terence P. Jeffrey, Is Sistani Iraq's Khomeini?, Human Events, May 26, 2004,
available at http://www.humaneventsonline.com/article.php?id=4012;
Andrew Hammond, Iraqi Shiites Oppose Power Transfer Plan: 'Real Problems'
Ahead: Ayatollah Makes Rare Public Statement on U.S. Timetable, National Post,
Nov. 27, 2003.
491 See Graham E. Fuller, Islamist Politics in Iraq after Saddam
Hussein (Aug. 2003), available at http://www.usip.org/pubs/specialreports/sr108.pdf;
Borzou Daragahi, Al-Sistani Mixes Tradition with Modern Outlook, Wash. Times,
Mar. 9, 2004, available at http://www.washtimes.com/world/20040309-120239-2760r.htm.
492 See Daragahi, supra note 491; Jeffrey, supra note 490.
493 See Jeffrey, supra note 490.
494 Edward Wong, Iraq's Path Hinges on the Words of Enigmatic Cleric,
N.Y. Times, Jan. 25, 2004, available at http://query.nytimes.com/gst/abstract.html?res=F30913FD3D5C0C768EDDA80894DC404482.
495 David Enders, Iraqi Vote Gives Shia Parties a Mandate for Islamic
Law, The Independent (U.K.), Feb. 14, 2005, at 2.
496 See id.; Daniszewski, supra note 3, at A1.
497 See Michael Jansen, Shia Clerics Insist on the Adoption of Islamic
Law, Irish Times, Feb. 7, 2005, at 11.
498 See, e.g., Ruling Cleric Warns Iran 'On the Brink of Explosion,'
WorldTribune.Com, June 3, 2002, at http://216.26.163.62/2002/me_iran_06_03.html;
Poll on US Ties Rocks Iran, BBC News Online, Oct. 2, 2002, at http://news.bbc.co.uk/2/hi/middle_east/2294509.stm.
499 For example, the theocratic regime in Iran has executed thousands
of political opponents, razed villages belonging to religious and ethnic
minorities such as the Kurds, and practiced widespread torture. See, e.g., U.S.
Department of State, Country Reports on Human Rights Practices for 2000: Iran
(Feb. 23, 2001), at www.state.gov/g/drl/rls/hrrpt/2000/nea/786.htm;
Amnesty International, Iran: Executions of Prisoners Continue Unabated (1992),
at http://www.amnestyusa.org/countries/iran/document.do?id=7D4EA7D35E816F03802569A600602B9A
("Between July 1988 and January 1989 alone Amnesty International recorded
more than 2,500 political prisoners who were executed....").
500 See Nicholas D. Kristof, Iraq's Little Secret, N.Y. Times, Oct. 1,
2002, available at http://web.naplesnews.com/02/10/perspective/d822739a.htm.
501 See U.N. Development Programme, Supporting Iraqi Women (2002), at http://www.iq.undp.org/gender.htm.
502 See U.N. Development Programme, The Arab Human Development Report
2003, at 192, at http://www.miftah.org/Doc/Reports/Englishcomplete2003.pdf.
503 See U.N. Educational, Scientific, and Cultural Organization,
Percentage of Female Teachers (2002), at http://www.uis.unesco.org/TEMPLATE/html/HTMLTables/education/percentfemale.htm.
504 See U.S. Department
of State, Iraqi Women Under Saddam's Regime: A Population Silenced (Mar. 20,
2003), at http://www.state.gov/g/wi/rls/18877.htm (citing
U.N. Commission on Human Rights, Report of the Special Rapporteur on Violence
Against Women¶ 23 (Jan. 2002) , at http://www.unhchr.ch/huridocda/huridoca.nsf/e06a5300f90fa0238025668700518ca4/42e7191fae543562c1256ba7004e963c/$FILE/G0210428.doc).
505 See id.
506 See Agence France-Presse, More than 400 Iraqi Women Kidnapped,
Raped in Post-War Chaos: Watchdog, Relief Web (Aug. 24, 2003), available at http://www.reliefweb.int/w/rwb.nsf/480fa8736b88bbc3c12564f6004c8ad5/c21efb4c4e3dda7e49256d8d0010bacb.
507 See Gettleman, supra note 478.
508 See Houzan Mahmoud, An Empty Sort of Freedom, The Guardian (U.K.),
Mar. 8, 2004, available at http://www.guardian.co.uk/comment/story/0,3604,1164268,00.html.
509 See Lauren Sadler, Veiled and Worried in Baghdad, N.Y. Times,
Sept. 16, 2003, available at http://query.nytimes.com/gst/abstract.html?res=F4091EFE3C5E0C758DDDA00894DB404482.
510 Raja Habib Khuzai and Songul Chapouk, Iraq's Hidden Treasure, N.Y.
Times, Dec. 3, 2003, available at http://www.womenwagingpeace.net/content/articles/0328a.html.
511 Id.
512 See Hannah Allam, Hundreds of Iraqi Women Gather to Demand
Political Power, Knight Ridder Newspapers, Feb. 21, 2004, available at http://www.realcities.com/mld/krwashington/8009667.htm.
513 Constable, supra note 483.
514 Id.
515 Id.
516 Id.
517 See U.N. Commission on Human Rights, Report of the U.N. High
Commissioner for Human Rights and Follow-up to the World Conference on Human
Rights, The Present Situation of Human Rights in Iraq, E/CN.4/2005/4 (June 9,
2004), available at http://www.unhchr.ch/html/hchr/docs/iraq1.doc.
518 See Swanee Hunt & Cristina Posa, Where Are the Women in the
New Iraq?, Boston Globe, June 22, 2004, available at http://www.commondreams.org/views04/0622-02.htm.
519 See Fein, supra note 487. Ayatollah Sistani, as the
"pre-eminent cleric among the majority Shi'ite population [and] the most
powerful political figure in the land," demanded that Article 7 be
codified for this purpose. Patrick Bishop, Differences Settled As Iraqis Agree
Package of Interim Laws, The Daily Telegraph (U.K.), Mar. 2, 2004, available at
http://www.opinion.telegraph.co.uk/news/main.jhtml?xml=/news/2004/03/02/wirq02.xml.
520 See generally Islamic Laws, available at http://sistani.org/html/eng/main/index.php?page=3&lang=eng&part=1
[hereinafterIslamic Laws]; Contemporary Legal Rulings in Shiei Law, available
at http://sistani.org/html/eng/main/index.php?page=2&part=1
[hereinafter Contemporary Legal Rulings].
521 See generally, Islamic Laws, supra note 520.
522 See Howland, supra note 412, at 314; CP-Reuters supra note 190.
523 See Mahmoud, supra note 508.
524 See Damien McElroy, Iraq's Christians Run Gauntlet of Anti-US
Hostility, The Daily Telegraph (U.K.), Nov. 2, 2003, available at http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2003/11/02/wirq02.xml&sSheet=/news/2003/11/02/ixnewstop.html
525 Paul Marshall, Elsewhere in Iraq, Wall St. J., Aug. 22, 2003,
available at http://www.benadorassociates.com/article/524.
526 See Contemporary Legal Rulings, supra note 520.
527 See David Rieff, The Shiite Surge, N.Y. Times, Feb. 1, 2004,
available at http://www.nytimes.com/2004/02/01/magazine/01SHIITE.html;
Associated Press, Selling Alcohol in Iraq Is Now a Risky Business, Modern
Brewery Age, Jan 26, 2004, available at http://articles.findarticles.com/p/articles/mi_m3469/is_4_55/ai_113897936;
Jonathan Steele, Kidnappers Find a Profitable Way to Drive Out Educated
Families, The Guardian (U.K.), June 17, 2004, available at http://www.guardian.co.uk/Iraq/Story/0,2763,1240571,00.html.
528 Suleiman al-Khalidi, Iraqi Christians Fear for Their Lives,
Reuters, Dec. 30, 2003, available at http://www.iol.co.za/index.php?sf=2813&click_id=2813&art_id=qw1072762923269B262&set_id=6;
McElroy,supra note 524.
529 al-Khalidi, supra note 528.
530 See id.
531 See Sabrina Tavernise, For Now, Merchants Cast Lot With a New
Iraq, N.Y. Times, Sept. 12, 2004, available at http://www.nytimes.com/2004/09/12/international/middleeast/12store.html?ex=1113364800&en=848f5b04b6bf7b18&ei=5070&hp;
Kim Sengupta, Exodus of Iraqi Christians in Full Flood as Targeted Killings
Grow, The Independent (U.K.), Oct. 12, 2004, available at http://news.independent.co.uk/world/middle_east/story.jsp?story=571219.
532 See Associated Press, Iraqis Protest Said Voting Irregularities,
ABC News International, Feb. 6, 2005, at http://abcnews.go.com/International/wireStory?id=475479;
Associated Press, Assyrian Christians Say Kurds Wouldn't Let Them Vote,
WKRN.com, Feb. 14, 2005, at http://www.wkrn.com/Global/story.asp?S=2877020;
Agence France Presse, US Hails Vote Success in Mosul But Iraqi Parties Cry
Foul, Yahoo! News, Jan. 31, 2005, available at http://us-politics.news.designerz.com/us-hails-vote-success-in-mosul-but-iraqi-parties-cry-foul.html?d20050131?d20050131.
533 See Stephen Farrell, Voters Give Shias a Majority--Now the
Wrangling Will Begin, The Times (U.K.), Feb. 14, 2005, at 6.
534 James Glanz & Christine Hauser, Election Complaints Fuel
Protests in Iraq; Claims of Fraud Dampen the Euphoria, N.Y. Times, Feb. 3,
2005, at 8.
535 See David N. Goodman, Christian Iraqis in U.S. Happy, Worried by
Vote Result, Associated Press, Feb. 14, 2005, available at http://www.fortwayne.com/mld/newssentinel/10892774.htm.
536 Ken Auletta, Fortress Bush, The New Yorker, Jan. 11, 2004,
available at http://www.newyorker.com/fact/content/?040119fa_fact2.
537 In Afghanistan, warlords "hold sway over much of the country
outside Kabul." Afghanistan: Review of 2004, U.N. Irin, Jan. 17, 2005, at http://www.irinnews.org/report.asp?ReportID=45110&SelectRegion=Central_Asia.
The "Afghan Ministry of Defence estimates that there are still more than
100,000 illegally armed gunmen, most loyal to warlords or local tribal chiefs,
who also need to be disarmed." Afghanistan: Warlord Attacks Provincial
Disarmament Team, U.N. Irin, Apr. 14, 2005, at http://www.alertnet.org/thenews/newsdesk/IRIN/07425e42d0195ac9ee967c8073543f09.htm.
Although several Iraqi militias agreed to disarm in July 2004, this simply
entailed integration into the Iraqi security forces, with existing chains of
command surviving. See Deal to Disband Iraq Militias Announced, CNN.Com, June 8,
2004, at http://www.cnn.com/2004/WORLD/meast/06/07/iraq.main;
Michael Knights, Militias and the Monopoly of Force in Transitional Iraq,
Washington Institute for Near East Policy (Mar. 16, 2004), at http://www.washingtoninstitute.org/templateC05.php?CID=1720.
538 The financial cost of occupying Iraq and Afghanistan has exceeded
$60 billion per year, for a total cost so far in excess of $200 billion, while
only about $25 billion per year spent on the Global Fund for AIDS could save
about eight million lives, a much greater number than claimed for the wars in
Iraq and Afghanistan. See Dave Moniz, Monthly Costs of Iraq, Afghan Wars
Approach that of Vietnam, USA Today, Sept. 8, 2003, available at http://www.usatoday.com/news/world/iraq/2003-09-07-cover-costs_x.htm;
Institute for Policy Studies & Foreign Policy in Focus, Paying the Price:
The Mounting Costs of the Iraq War (June 24, 2004), at http://www.fpif.org/papers/0406costsofwar.html;
Jeffrey Sachs, Weapons of Mass Salvation, The Economist, Oct. 24, 2002,
available at http://www.economist.com/opinion/displayStory.cfm?story_id=1403544.
The human cost has been even greater, as more than 1,750 Americans have
sacrificed their lives as part of their nation's response to September 11. See
War in Iraq; Forces: U.S. & Coalition/Casualties, CNN.com, 2005, at http://edition.cnn.com/SPECIALS/2003/iraq/forces/casualties
(1,573 American deaths during war in Iraq from 2003 through late April 2005);
Enduring Freedom Casualties, CNN.com, 2005, at http://edition.cnn.com/SPECIALS/2004/oef.casualties
(180 American deaths during war in Afghanistan from 2001 through late April
2005).
539 For example, life expectancy in Bosnia increased by about 15 years
after an international coalition intervened in 1995 against the civil war and
genocide that were ongoing in that country. See U.S. Bureau of the Census,
International Data Base (2004), available at http://www.census.gov/ipc/www/idbprint.html.
540 Countries that were U.S. colonies, on which U.S. troops were
stationed, or had U.S.-backed governments, but that suffered brutal
dictatorships, systematic violations of human rights, or genocide during or
after U.S. involvement, include Cuba, el Salvador, Nicaragua, Guatemala, Haiti,
Zaire/Congo, the Philippines, Indonesia, Iran, Afghanistan, and Kuwait. See
Ellen C. Collier, Instances of Use of United States Forces Abroad, 1798 - 1993,
Library of Congress (Oct. 7, 1993), available at http://www.history.navy.mil/wars/foabroad.htm;
Philip S. Foner, , 1895-1902 (1972); William M. Leogrande & Kenneth Sharpe,
Colombia: Is U.S. Re-Creating El Salvador?, L.A. Times, Mar. 19, 2000,
available at http://www.commondreams.org/views/031900-101.htm;
Susanne Jonas, A New Guatemalan Tragedy in the Making?, S.F. Chron., Apr. 26,
2000, available at http://www.commondreams.org/views/042600-105.htm;
Marc Cooper, A Sandinista Lesson for Afghanistan, L.A. Times, Nov. 4, 2001,
available at http://www.commondreams.org/views01/1104-01.htm;
Haiti - A Country Study, Library of Congress (Richard A. Haggerty ed., 1989),
at http://lcweb2.loc.gov/frd/cs/httoc.html;
Human Rights Watch, Haiti: Human Rights Developments, 1994, at http://www.hrw.org/reports/1994/WR94/Americas-06.htm#P330_164164;
Carole J.L. Collins, Congo/Zaire, Foreign Policy In Focus (June 1997), at http://www.fpif.org/pdf/vol2/37ifcong.pdf;
Amy Kaplan, Confusing Occupation With Liberation, L.A. Times, Oct. 24, 2003,
available at http://fairuse.1accesshost.com/news1/latimes15.html;
Alfred W. McCoy, Dark Legacy: Human Rights Under the Marcos Regime (Sept. 20,
1999) available at http://www.hartford-hwp.com/archives/54a/062.html;
Joseph Nevins, Justice Still Eludes Indonesia: Washington's Double Standards
Toward Mass Murderers, Int'l Herald Trib., Feb. 19, 2004, available at http://www.commondreams.org/views04/0219-09.htm;
Stephen Kinzer, All the Shah's Men: An American Coup and the Roots of Middle
East Terror(2003); Immigration and Naturalization Service, Alert Series: Kuwait
Human Rights after February 28, 1991 (Mar. 1992), at http://uscis.gov/graphics/services/asylum/ric/documentation/alkwt92-001.pdf;
Dennis Bernstein & Larry Everest, Liberated Kuwait, S.F. Bay Guardian,
Sept. 9, 1992, available at http://www.sfbg.com/gulfwar/090992.html.
541 For example, women tend to be better off, and more equal to men,
in literacy, employment opportunities, and/or life expectancy and access to
medical care, in Tajikistan and Uzbekistan than in Iran or Afghanistan; in
Tunisia, Lebanon, or Jordan than in Saudi Arabia; in Mexico, Venezuela or
Brazil than in Guatemala, el Salvador, or Nicaragua; in Jamaica than in Haiti;
in Malaysia than in Indonesia or the Philippines; and in Kenya or Tanzania than
in the Congo. See, e.g., U.N. Development Programme, Human Development
Indicators 2004, at Tables 24-27, at http://hdr.undp.org/statistics/data/index_indicators.cfm;
Save the Children, State of the World's Mothers 2004, at 32-36, at http://www.savethechildren.org/mothers/report_2004/images/pdf/Index_Rank_pp28_36.pdff.
542 Defenders of the view that the West should accept the religious
extremism and medieval customs to which their allies in Afghanistan and Iraq
cling frequently cite cultural sensitivities, but this is disingenuous, as
these sensitivities have proved to be no barrier to implementing the other
priorities of the U.S. government, only those relating to protecting the human
rights of women and religious minorities. See, e.g., Torture Policy (cont'd),
Wash. Post, June 21, 2004, at A18 (U.S. commander in Iraq approved policy of
forcing nudity on detainees).
543 Iraqis seem to be ambivalent at best about whether the war was
morally justified. See, e.g., Cesar G. Soriano & Steven Komarow, Poll:
Iraqis Out of Patience, USA Today, Apr. 29, 2004 ("In the multiethnic
Baghdad area ... only 13% of the people now say the invasion of Iraq was
morally justifiable."); Poll: Iraqis Conflicted About War, Its Impact,
CNN.Com, Apr. 28, 2004, at http://www.cnn.com/2004/WORLD/meast/04/28/iraq.poll
("Thirty-three percent of [3,444 Iraqis asked in a CNN/USA Today/Gallup
Poll] said the war had done more good than harm, while 46 percent said it had
done more harm than good."); Steven Komarow, New Era Is Blessing for Some,
Curse for Others, USA Today, June 29, 2004, available at http://www.usatoday.com/news/world/2004-06-28-iraq-future_x.htm
("A recent poll showed the majority of Iraqis said the U.S.-led coalition
was wrong to invade their country, but they welcome democracy").
Copyright 2005 by Northwestern
University School of Law, Northwestern University Journal of International
Human Rights Volume 3 (April 8, 2005)
----------
Afghanistan
AFGHAN MUSIC VIDEO.... from the
50s and 60s... when they were just like us...check out the fans... they
were dressed just like us...
Afghan
Music Video
and brilliant...
Man
Ninawazam Akbar Ramish Afghan Music Legend
brilliant...
Kabul
Dreams - Can you fly? Indie rock band from Afghanistan!!! Song!!!- GOOD MORNING FREEDOM
DID U KNOW...
The Afghan military existed since the early 1700s when the Hotaki
dynasty rose to power followed by the Durrani Empire. The Afghan military was
constantly involved in wars with Persia and India from the 18th to the 19th
century. The modern military force of the country was first organized in 1880s,
when the country was ruled by Amir Abdur Rahman Khan. It was upgraded during
King Amanullah Khan's rule in the early 1900s, and modernized during King Zahir
Shah's rule from 1933 to 1973.
and..
Traditionally, Afghan governments relied on three military
institutions: the regular army, tribal levies, and community militias. The
regular army was sustained by the state and commanded by government leaders.
The tribal or regional levies - irregular forces - had part-time soldiers
provided by tribal or regional chieftains. The chiefs received tax breaks, land
ownership, cash payments, or other privileges in return. The community militia
included all available able-bodied members of the community, mobilized to
fight, probably only in exceptional circumstances, for common causes under
community leaders. Combining these three institutions created a formidable
force whose components supplemented each others strengths and minimized their
weaknesses.[9]
The military of Afghanistan, under King Amanullah Khan, defeated the
British in the 1919 third Anglo-Afghan war. After the war ended, the reforming
monarch did not see the need for a large army, instead deciding to rely on
Afghanistan's historical martial qualities. This resulted in neglect, cutbacks,
recruitment problems, and finally an army unable to quell the 1928-9 up-rising
that cost him his throne.[10] However, under his reign, the small Afghan Air
Force was formed in 1924. The military of Afghanistan was reconstructed and
improved during King Zahir Shah's reign, which reached a strength of 70,000 in
1933. Following the Second World War, the Soviet Union offered assistance to
the Afghan government where the United States did not, and by the 1960s, Soviet
assistance started to improve the structure, armament, training, and command
and control arrangements for the military. The military reached a strength of
98,000 (90,000 army and 8,000 air force) by this period.[11]
MiG-15 fighters and Il-28 bombers of the Afghan Air Force in
1959.After the exile of King Zahir Shah in 1973, the new president, Daud Khan,
forged stronger ties with the Soviets by signing two highly controversial
military aid packages for his nation in 1973 and 1975. For three years, Afghan
armed forces and police officers received advanced soviet weapons, as well as
training by the KGB and Soviet commandos. Due to problems with local political
parties in his country, President Daud Khan decided to distance himself from
the Soviets in 1976. He made Afghanistan's ties closer to the broader Middle
East and the United States instead.
From 1977 to 1978 the Afghan armed forces conduced joint military
training with the Military of Egypt. In April 1978 there was a coup, known as
the Saur Revolution, orchestrated by the Soviets and members of the government
loyal to the People's Democratic Party of Afghanistan (PDPA). This led to a
full-scale Soviet invasion, led by the 40th Army and the Airborne Forces in
December 1979.
and...
Artists of Afghanistan.... when Afanistan was vibrant alive and was
competing with Italy, France and Spain in fashions... in the 60s and 70s....
most beautiful women... beautiful mini-skirts... shoes... hats... bags and
gloves...
Salma Jahani (Afghanistan) is a Pashtun aougho/ Mohammedzai qaum parst
singer from Afghanistan.She is one of the famous Afghan Female singers. Salma
was born in November 27, 1952 and her birth name is Soraya Amerie.She is sister
to Haidar Salim, wife to Rahim Jahani, mother to Rahe Jahani and cousin to
Ahmad Wali with whom she has made lots of albums. She currently lives in
Sacramento, Californiain U.S.A along with her husband Rahim Jahani and her
three children. She was a student of Afghanistan's famous composer, Ustad
Khyal. She has two daughters and one son-their names are Salma (oldest), Rahe
(middle) and Sonbol (youngest). Her son Rahe accompanies them in their concert
in playing keyboard and Harmonium-he also plays the tabla. Salma is also known
for her Exquisite fashion sense and very classy presentation ever since being a
singer in Afghanistan.
Her popular song is Mullah Mohamad jan .
Retrieved from "http://en.wikipedia.org/wiki/Salma_Jahani"
actor...Ustad Khyal Muhammad (Afghanistan) (Born 1946) is a Pashto
singer from the North-West Frontier Province now called Khyber-Pukhtunkhwa
Province (KPP)in Pakistan.[1] He has appeared regularly on television, usually
singing ghazals and in movies.[2]
Khyal Mohammad belongs to the Afridi tribe of Pushtuns. He was born in
Peshawar in 1946 to a musical family. His brother Saif Ul-Maluk was a popular
singer in the 1960s, who often performed on Radio Peshawar. Saif introduced him
to the radio station, where he first performed in 1958 at age of thirteen.
However, for the next ten years he mainly restricted himself to playing
instruments such as the tabla and harmonium. In the late 1960s he began singing
and recording ghazals, traditional Pashto poems, a daring gamble since the
music scene at that time was dominated by folk music. His unique style soon became
popular in Peshawar and the NWFP.[3]
After establishing his name on the local radio, in 1973-74 Khyal
Mohammad appeared in his first movie, Dara-i-Khyber, one of the first
"Pollywood" pashto movies. This gave his career a kick-start, and
since then he has appeared in many other movies. As his popularity continued to
grow, he has often toured in Afghanistan, Europe, the UAR and the USA.[4] Over
the years he has recorded a huge volume of music, and has also appeared as a
playback singer in many movies, winning many awards. He has been called the
Elvis Presley of pashto music.[3]
Khyal Muhammad renders ghazal songs in a traditional manner, choosing
pieces that combine mysticism, romance and philosophy, usually with an
undertone of melancholy. His voice has impressive range, but is always fully
under control. Radio, television and movie producers have paid tribute to his
professionalism and ability to produce flawless performances with minimal
rehearsal.[5] Zahoor Khan Zaiby, a Pakhtoon composer of Balochi and Sindhi
tunes, says "Lala is an expert at harnessing the mood of the moment and
the poetry through his voice. The songs from his films are considered Pashto
anthems."[4]
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