ABSTRACT
In January 2004, a Constitutional “Loya Jirga” or “Great Assembly,” held in the Afghan capital Kabul, adopted a new constitution (Qanun-e asasi) for Afghanistan which embodied a rich array of human rights protections. These covered matters such as the liberty of the subject, freedom of the press, and gender, and in formal terms gave Afghanistan one of the most progressive constitutional frameworks to be found anywhere in the Muslim world. Article 7 even provided that the state ‘shall observe the United Nations Charter, international treaties and conventions that Afghanistan has ratified, and the Universal Declaration of Human Rights’. However, amongst ordinary Afghans, a pervasive skepticism remains about human rights protections in their country: as a taxi driver remarked to the author in March 2007, ‘there is no rule of law’ (dawlat-e qanun nest). It is therefore useful to explore what might account for the discrepancy between the robust protections that exist in constitutional texts, and the cynicism that marks daily life. That is the broad objective of this chapter, which opens with some brief observations on the nature of human rights, and moves on to discuss Afghanistan’s unhappy human rights history, tracing the patterns of abuse both in earlier eras and then in recent timesunder the communist regime from 1978 to 1992, during the period of Mujahideen rule from 1992 to 1996, and under the Taliban from 1996 to 2001. These abuses, it is argued, reflect above all the failure of the idea of the rule of law to take root in Afghanistan. The chapter concludes by discussing developments since 2001, and argues that until a culture of legality is embodied in consolidated institutions, the human rights situation will remain precarious. Yet there is a paradox here, which is potentially troubling in a wider range of situations: the success of a state-building process on which the long-term protection of human rights depends may require that one turn a blind eye to the past misbehavior of potential “spoilers” with the capacity to wreck a state-building process at the outset.
