Afghanistan: Minority rights and autonomy in a multi-ethnic failed state

Stanford Journal of International Law

Volumn 35, Issue 2, 1999, Pages 351-387

  Thier, J Alexander ^a,b,c,d,e  

^a STANFORD LAW SCHOOL   (United States)

^b TUFTS UNIVERSITY   (United States)

^c BROWN UNIVERSITY   (United States)

^d U N Off Coord Humanitarian A   (Afghanistan)

^e INTERNATIONAL ORGANIZATION FOR MIGRATION   (Switzerland)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0033264648     PISSN: 07315082     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (199)

1. See BARNETT RUBIN, THE FRAGMENTATION OF AFGHANISTAN: STATE FORMATION AND COLIAPSE IN THE INTERNATIONAL SYSTEM 196 (1995).
2. See generally Final Report on the Situation of Human Rights in Afghanistan, U.N. ESCOR, 52d Sess., U.N. Doc E/CN.4/1996/64 (1996); Report on the Situation of Human Rights in Afghanistan Prepared by the Special Rapporteur, Mr. Felix Ermacora, in Accordance with the Commission on Human Relations Resolutions, U.N. ESCOR, 41st Sess., U.N. Doc. E/CN.4/1985/21 (1985); U.N. ESCOR, 47th Sess., U.N. Doc. E/CN.4/1991/31 (1991); U.N. ESCOR, 48th Sess., U.N. Doc. E/CN.4/1992/33 (1992); U.N. ESCOR, 49th Sess., U.N. Doc. E/CN.4/1993/42 (1993); U.N. ESCOR, 50th Sess., U.N. Doc. E/CN.4/1994/53 (1994); U.N. ESCOR, 51st Sess., U.N. Doc. E/CN.4/1995/64 (1995); U.N. ESCOR, 46th Sess., U.N. Doc. E/CN.4/1990/25 (1990); U.N. ESCOR, 44th Sess., U.N. Doc. E/CN.4/1988/25 (1988); U.N. ESCOR, 42d Sess., U.N. Doc. E/CN.4/1986/24 (1986). For further useful documentation, see U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 1996 (1997); NASSIM JAWAD, AFGHANISTAN: A NATION OF MINORITIES (1992).
3. See generally Final Report on the Situation of Human Rights in Afghanistan, U.N. ESCOR, 52d Sess., U.N. Doc E/CN.4/1996/64 (1996); Report on the Situation of Human Rights in Afghanistan Prepared by the Special Rapporteur, Mr. Felix Ermacora, in Accordance with the Commission on Human Relations Resolutions, U.N. ESCOR, 41st Sess., U.N. Doc. E/CN.4/1985/21 (1985); U.N. ESCOR, 47th Sess., U.N. Doc. E/CN.4/1991/31 (1991); U.N. ESCOR, 48th Sess., U.N. Doc. E/CN.4/1992/33 (1992); U.N. ESCOR, 49th Sess., U.N. Doc. E/CN.4/1993/42 (1993); U.N. ESCOR, 50th Sess., U.N. Doc. E/CN.4/1994/53 (1994); U.N. ESCOR, 51st Sess., U.N. Doc. E/CN.4/1995/64 (1995); U.N. ESCOR, 46th Sess., U.N. Doc. E/CN.4/1990/25 (1990); U.N. ESCOR, 44th Sess., U.N. Doc. E/CN.4/1988/25 (1988); U.N. ESCOR, 42d Sess., U.N. Doc. E/CN.4/1986/24 (1986). For further useful documentation, see U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 1996 (1997); NASSIM JAWAD, AFGHANISTAN: A NATION OF MINORITIES (1992).
4. See generally Final Report on the Situation of Human Rights in Afghanistan, U.N. ESCOR, 52d Sess., U.N. Doc E/CN.4/1996/64 (1996); Report on the Situation of Human Rights in Afghanistan Prepared by the Special Rapporteur, Mr. Felix Ermacora, in Accordance with the Commission on Human Relations Resolutions, U.N. ESCOR, 41st Sess., U.N. Doc. E/CN.4/1985/21 (1985); U.N. ESCOR, 47th Sess., U.N. Doc. E/CN.4/1991/31 (1991); U.N. ESCOR, 48th Sess., U.N. Doc. E/CN.4/1992/33 (1992); U.N. ESCOR, 49th Sess., U.N. Doc. E/CN.4/1993/42 (1993); U.N. ESCOR, 50th Sess., U.N. Doc. E/CN.4/1994/53 (1994); U.N. ESCOR, 51st Sess., U.N. Doc. E/CN.4/1995/64 (1995); U.N. ESCOR, 46th Sess., U.N. Doc. E/CN.4/1990/25 (1990); U.N. ESCOR, 44th Sess., U.N. Doc. E/CN.4/1988/25 (1988); U.N. ESCOR, 42d Sess., U.N. Doc. E/CN.4/1986/24 (1986). For further useful documentation, see U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 1996 (1997); NASSIM JAWAD, AFGHANISTAN: A NATION OF MINORITIES (1992).
5. See generally Final Report on the Situation of Human Rights in Afghanistan, U.N. ESCOR, 52d Sess., U.N. Doc E/CN.4/1996/64 (1996); Report on the Situation of Human Rights in Afghanistan Prepared by the Special Rapporteur, Mr. Felix Ermacora, in Accordance with the Commission on Human Relations Resolutions, U.N. ESCOR, 41st Sess., U.N. Doc. E/CN.4/1985/21 (1985); U.N. ESCOR, 47th Sess., U.N. Doc. E/CN.4/1991/31 (1991); U.N. ESCOR, 48th Sess., U.N. Doc. E/CN.4/1992/33 (1992); U.N. ESCOR, 49th Sess., U.N. Doc. E/CN.4/1993/42 (1993); U.N. ESCOR, 50th Sess., U.N. Doc. E/CN.4/1994/53 (1994); U.N. ESCOR, 51st Sess., U.N. Doc. E/CN.4/1995/64 (1995); U.N. ESCOR, 46th Sess., U.N. Doc. E/CN.4/1990/25 (1990); U.N. ESCOR, 44th Sess., U.N. Doc. E/CN.4/1988/25 (1988); U.N. ESCOR, 42d Sess., U.N. Doc. E/CN.4/1986/24 (1986). For further useful documentation, see U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 1996 (1997); NASSIM JAWAD, AFGHANISTAN: A NATION OF MINORITIES (1992).
6. Five regions in Afghanistan, the North, Northeast, Southeast, Center, and West, at one time or another exhibited most or all of the de facto criteria of statehood, as established by the Montevideo Convention: defined territory, permanent population, government, and the capacity to enter into foreign relations with other states. Montevideo Convention on Rights and Duties of States, Dec. 26, 1933, art. I, 165 L.N.T.S. 19. These areas were governed from provincial capitals, each with an independent military, and a territorial base, albeit one with shifting boundaries. Each of these "governments" carried on relations with other countries and sometimes even establishing consulates. Several of them also printed currency and established "foreign ministries" that issued visas. See, e.g., RUBIN, supra note 1, at 274-78.
7. The Taliban, literally "religious students," formed in 1994 and seized Kabul (Afghanistan's capital) in 1996. Although the genesis of the movement remains shrouded in myth and mystery, it has been variously described as "fundamentalist," "traditionalist," "totalitarian," and "mercenary," and is broadly seen as a reassertion of Pushtun dominance. The Pushtuns, discussed in detail below, are Afghanistan's largest ethnic group and have ruled Afghanistan for most of its existence as a state. See generally FUNDAMENTALISM REBORN?: AFGHANISTAN AND THE TALIBAN (William Maley ed., 1998) [hereinafter FUNDAMENTALISM REBORN] (discussing Pushtuns in Afghanistan). The Taliban advanced in 1998 into the ethnic strongholds of Afghanistan's other minorities, and their sway over these areas remains unpredictable. Historically, governments with greater military control and national political and economic organization than that exhibited by the Taliban have been ineffective in centralizing or even nationalizing governmental authority. At present, there is little reason to expect the Taliban to be more successful in this mission. See M. Nazif Shahrani, The Future of the State and the Structure of Community Governance in Afghanistan, in FUNDAMENTALISM REBORN?, supra, at 213.
8. The Taliban, literally "religious students," formed in 1994 and seized Kabul (Afghanistan's capital) in 1996. Although the genesis of the movement remains shrouded in myth and mystery, it has been variously described as "fundamentalist," "traditionalist," "totalitarian," and "mercenary," and is broadly seen as a reassertion of Pushtun dominance. The Pushtuns, discussed in detail below, are Afghanistan's largest ethnic group and have ruled Afghanistan for most of its existence as a state. See generally FUNDAMENTALISM REBORN?: AFGHANISTAN AND THE TALIBAN (William Maley ed., 1998) [hereinafter FUNDAMENTALISM REBORN] (discussing Pushtuns in Afghanistan). The Taliban advanced in 1998 into the ethnic strongholds of Afghanistan's other minorities, and their sway over these areas remains unpredictable. Historically, governments with greater military control and national political and economic organization than that exhibited by the Taliban have been ineffective in centralizing or even nationalizing governmental authority. At present, there is little reason to expect the Taliban to be more successful in this mission. See M. Nazif Shahrani, The Future of the State and the Structure of Community Governance in Afghanistan, in FUNDAMENTALISM REBORN?, supra, at 213.
9. See William Maley, Interpreting the Taliban, in FUNDAMENTALISM REBORN?, supra note 4, at 5-7.
10. See Shahrani, supra note 4, at 215.
11. See LOUIS DUPREE, AFGHANISTAN 58-64 (3d prtg. 1980). Sources disagree on what constitutes a "people" in Afghanistan. Some name as few as 5 ethnic groups and others as many as 57. See, e.g., 1 PERCY SYKES, A HISTORY OF AFGHANISTAN 13-16 (1940) (listing 5 groupings); DONALD N. WILBUR ET AL., AFGHANISTAN 36-65 (1962) (listing 16 groupings); JAWAD, supra note 2, at 9 (citing sources listing from 8 to 57 groupings). For the purposes of this Article, 5 "peoples" who make up the vast majority of the population in Afghanistan will be considered. They are Pushtun, Tajik, Uzbek, Turkman, and Hazara. Another group, not discussed here, are the Aimaq, a semi-nomadic people found in central western Afghanistan.
12. See LOUIS DUPREE, AFGHANISTAN 58-64 (3d prtg. 1980). Sources disagree on what constitutes a "people" in Afghanistan. Some name as few as 5 ethnic groups and others as many as 57. See, e.g., 1 PERCY SYKES, A HISTORY OF AFGHANISTAN 13-16 (1940) (listing 5 groupings); DONALD N. WILBUR ET AL., AFGHANISTAN 36-65 (1962) (listing 16 groupings); JAWAD, supra note 2, at 9 (citing sources listing from 8 to 57 groupings). For the purposes of this Article, 5 "peoples" who make up the vast majority of the population in Afghanistan will be considered. They are Pushtun, Tajik, Uzbek, Turkman, and Hazara. Another group, not discussed here, are the Aimaq, a semi-nomadic people found in central western Afghanistan.
13. See LOUIS DUPREE, AFGHANISTAN 58-64 (3d prtg. 1980). Sources disagree on what constitutes a "people" in Afghanistan. Some name as few as 5 ethnic groups and others as many as 57. See, e.g., 1 PERCY SYKES, A HISTORY OF AFGHANISTAN 13-16 (1940) (listing 5 groupings); DONALD N. WILBUR ET AL., AFGHANISTAN 36-65 (1962) (listing 16 groupings); JAWAD, supra note 2, at 9 (citing sources listing from 8 to 57 groupings). For the purposes of this Article, 5 "peoples" who make up the vast majority of the population in Afghanistan will be considered. They are Pushtun, Tajik, Uzbek, Turkman, and Hazara. Another group, not discussed here, are the Aimaq, a semi-nomadic people found in central western Afghanistan.
14. For a thorough examination of many of the world's significant minority rights related conflicts, see generally HURST HANNUM, AUTONOMY, SOVEREIGNTY, AND SELF-DETERMINATION (rev. ed. 1996).
15. A 1979 study established a total population of 15-16 million persons which is a widely accepted baseline figure; however, determination of the present population is uncertain due to death, diaspora, and the lack of reliable data. International aid organizations generally estimate the current in-country population at 17-18 million, with an additional 2.5-3 million in Iran and Pakistan. An estimated 1 million people also are said to have perished in the war between 1979 and 1989, the years of Soviet occupation. See, e.g., DUPREE, supra note 7, at 57-65; HARVEY H. SMITH ET AL., U.S. GOV'T PRINTING OFFICE, AREA HANDBOOK FOR AFGHANISTAN 63 (4th ed. 1973) [hereinafter AREA HANDBOOK FOR AFGHANISTAN]; UNITED NATIONS, AFGHANISTAN CONSOLIDATED APPEAL FOR ASSISTANCE at vi (1997); JAWAD, supra note 2, at 6.
16. A 1979 study established a total population of 15-16 million persons which is a widely accepted baseline figure; however, determination of the present population is uncertain due to death, diaspora, and the lack of reliable data. International aid organizations generally estimate the current in-country population at 17-18 million, with an additional 2.5-3 million in Iran and Pakistan. An estimated 1 million people also are said to have perished in the war between 1979 and 1989, the years of Soviet occupation. See, e.g., DUPREE, supra note 7, at 57-65; HARVEY H. SMITH ET AL., U.S. GOV'T PRINTING OFFICE, AREA HANDBOOK FOR AFGHANISTAN 63 (4th ed. 1973) [hereinafter AREA HANDBOOK FOR AFGHANISTAN]; UNITED NATIONS, AFGHANISTAN CONSOLIDATED APPEAL FOR ASSISTANCE at vi (1997); JAWAD, supra note 2, at 6.
17. See DUPREE, supra note 7, at 57-60. But cf. Ahmed Rashid, Playing Dirty, FAR E. ECON. REV., Nov. 27, 1997, at 26-28. Whereas Dupree estimates the Pushtun population at 6.5 million, and the Hazaras at 0.9 million in 1967, recent reports, including Rashid's, have set the Hazaras at 3-4 million, and the Pushtun at 8 million. Compare id. with DUPREE, supra note 7, at 59-60 tbl.6. While the inaccessibility of the Hazarajat made it very difficult to count the Hazara in the 1960s and 1970s, it also protected the population from the Soviets. (The author worked in Hazarajat in 1994.) It has been suggested that due to the departure from Afghanistan of 5-6 million refugees during the years 1980-89, and the deaths of up to 1 million more, both of which disproportionately affected non-Hazara populations, the Hazara population has grown significantly in proportion to the rest of the population. Most objective estimates put the Pushtun population at no more than 50 percent of the overall population. See generally Alfred Janata, Afghanistan: The Ethnic Dimension, in THE CULTURAL BASIS OF AFGHAN NATIONALISM 60 (Ewan W. Anderson & Nancy Hatch Dupree eds., 1990) (discussing the ethnic, religious, economic, and sociopolitical dimensions of the Afghan internal and refugee population); JAWAD, supra note 2, at 7 (citing Pushtan population at 40 percent).
18. See DUPREE, supra note 7, at 57-60. But cf. Ahmed Rashid, Playing Dirty, FAR E. ECON. REV., Nov. 27, 1997, at 26-28. Whereas Dupree estimates the Pushtun population at 6.5 million, and the Hazaras at 0.9 million in 1967, recent reports, including Rashid's, have set the Hazaras at 3-4 million, and the Pushtun at 8 million. Compare id. with DUPREE, supra note 7, at 59-60 tbl.6. While the inaccessibility of the Hazarajat made it very difficult to count the Hazara in the 1960s and 1970s, it also protected the population from the Soviets. (The author worked in Hazarajat in 1994.) It has been suggested that due to the departure from Afghanistan of 5-6 million refugees during the years 1980-89, and the deaths of up to 1 million more, both of which disproportionately affected non-Hazara populations, the Hazara population has grown significantly in proportion to the rest of the population. Most objective estimates put the Pushtun population at no more than 50 percent of the overall population. See generally Alfred Janata, Afghanistan: The Ethnic Dimension, in THE CULTURAL BASIS OF AFGHAN NATIONALISM 60 (Ewan W. Anderson & Nancy Hatch Dupree eds., 1990) (discussing the ethnic, religious, economic, and sociopolitical dimensions of the Afghan internal and refugee population); JAWAD, supra note 2, at 7 (citing Pushtan population at 40 percent).
19. See RUBIN, supra note 1, at 73. Gerrymandering is a process of "redistricting" by which administrative boundaries are redrawn. This is often done to manipulate which population grouping will select governmental representatives. Gerrymandering can be used to increase or limit the voice of certain groups, such as African Americans in the United States, or the Hazaras in Afghanistan.
20. For a detailed examination of the war's effects on traditional Afghan society, see OLIVIER ROY, ISLAM AND RESISTANCE IN AFGHANISTAN 149-71 (1986).
21. See JAMES WILLIAM SPAIN, THE WAY OF THE PATHANS 23-25 (2d ed. 1972) (discussing the various Pathan, a.k.a. Pushtan, tribes).
22. This has led to a popular Pushtun myth that they are a lost tribe of Israel; however, they are more accurately described as Aryans. See 1 SYKES, supra note 7, at 13-14; AHMAN PAZHWAK, PAKHTUNISTAN A NEW STATE IN CENTRAL ASIA 7 (1960); WILBUR, supra note 7, at 40.
23. Despite the apparent "Islamization" of Afghan society at various points in history', most conflicts have been cultural. In particular, conflicts have related to the strong conservative culture in Pushtun villages, and their resistance to "outside" influences, such as centralized government and modernization. In the tribal justice system, the Pushtunwali supersedes both municipal and Islamic (sharia) law. It is often said that Pushtuns, by their own reckoning, are first Pushtuns, then Muslims, then Afghans. [T] he clearest unifying features of the Pushtun life are cultural. Their social system, social code, and sense of common history tend to draw them together more effectively than do ethnic considerations . . . . [The code of Pushtunwali] influence has been so pervasive in Pushtun life that in most respects it governs attitude and behavior more completely than does Islam's basic set of laws, the Shariah. RICHARD NEWELL, THE POLITICS OF AFGHANISTAN 15 (1972).
24. See DUPREE, supra note 7, at 59.
25. id.
26. Id. at 61.
27. See 1 SYKES, supra note 7, at 218-19.
28. See AREA HANDBOOK for AFGHANISTAN, supra note 9, at 77-79; DUPREE, supra note 7, at 61.
29. See generally HASSAN POLADI, THE HAZARAS (1989). This is one of the few broad historical, cultural, and sociological accounts of the Hazara people.
30. See DUPREE, supra note 7, at 59-64.
31. See AREA HANDBOOK FOR AFGHANISTAN, supra note 9, at 94-95; DUPREE, supra note 7, at 161-64. The category of major urban center includes Kabul, Herat, Mazar-i-Sharif, and to a lesser extent Qandahar and Herat. Even in these cities, however, the population is fairly segregated along ethnic lines.
32. See generally M. ALAM MIRAN, THE FUNCTIONS OF NATIONAL LANGUAGES IN AFGHANISTAN 2-3 (Afg. Council of the Asia Soc'y, Occasional Paper No. 11, 1977) (discussing language barriers to cultural integration in Afghanistan). I personally experienced this language barrier; while fully able to conduct business in Persian with officials, speeches and news broadcasts were virtually incomprehensible to me.
33. Amir Abdur Rahman, "the Iron Amir," ruled from 1880 to 1901. See VARTAN GREGORIAN, THE EMERGENCE OF MODERN AFGHANISTAN 8 (1969).
34. Robert L. Canfield, Religious Myth as Ethnic Boundary, in ETHNIC PROCESSES AND INTERGROUP RELATIONS IN CONTEMPORARY AFGHANISTAN, 40 (Jon W. Anderson & Richard F. Strand eds. (Afg. Council of the Asia Soc'y, Occasional Paper No. 15), 1977). Interestingly, Afghanistan's rulers usually have shown tolerance for the minuscule non-Muslim religious minorities in Afghanistan, mostly consisting of small Sikh, Hindu, and Jewish enclaves. While such tolerance accords with Muslim teachings, it also reflects these minorities' status as traders. Recently, when asked why Sikhs are permitted to play live music, which is currently prohibited in Kabul, the Taliban defended the special treatment of a handful of religious minorities in Kabul, on the grounds that the Taliban are most concerned with making Muslims into good Muslims. See Kathy Gannon, Afghan Religious Minorities Say They are Left in Peace, FORT WORTH STAR-TELEGRAM, Dec. 7, 1997, at 24, available in 1997 WL11923975.
35. Robert L. Canfield, Religious Myth as Ethnic Boundary, in ETHNIC PROCESSES AND INTERGROUP RELATIONS IN CONTEMPORARY AFGHANISTAN, 40 (Jon W. Anderson & Richard F. Strand eds. (Afg. Council of the Asia Soc'y, Occasional Paper No. 15), 1977). Interestingly, Afghanistan's rulers usually have shown tolerance for the minuscule non-Muslim religious minorities in Afghanistan, mostly consisting of small Sikh, Hindu, and Jewish enclaves. While such tolerance accords with Muslim teachings, it also reflects these minorities' status as traders. Recently, when asked why Sikhs are permitted to play live music, which is currently prohibited in Kabul, the Taliban defended the special treatment of a handful of religious minorities in Kabul, on the grounds that the Taliban are most concerned with making Muslims into good Muslims. See Kathy Gannon, Afghan Religious Minorities Say They are Left in Peace, FORT WORTH STAR-TELEGRAM, Dec. 7, 1997, at 24, available in 1997 WL11923975.
36. For a longer discussion on the derivation of "Pushtun," "Pathan," and "Afghan," see M. HAYAT KHAN, AFGHANISTAN AND ITS INHABITANTS 50-56 (Henry Priestly trans., Lahore 1981).
37. See GREGORIAN, supra note 25, at 25.
38. SEE 2 PERCY SYKES, A HISTORY OF AFGHANISTAN 351-67 (1940); ARNOLD FLETCHER, AFGHANISTAN: HIGHWAY OF CONQUEST 41-57 (1965).
39. SEE 2 PERCY SYKES, A HISTORY OF AFGHANISTAN 351-67 (1940); ARNOLD FLETCHER, AFGHANISTAN: HIGHWAY OF CONQUEST 41-57 (1965).
40. See generally 2 SYKES, supra note 29; GREGORIAN, supra note 25 (providing scholarly accounts of this period); PETER HOPKIRK, THE GREAT GAME (1990) (providing an entertaining look at the intrigue and the players involved).
41. See GREGORIAN, supra note 25, at 91-98; W.K. FRASER-TYTLER, AFGHANISTAN: A STUDY OF POLTTICAL DEVELOPMENTS IN CENTRAL AND SOUTHERN ASIA 186-87 (1967).
42. The British occupied Kabul and the eastern frontier in the first two of three Anglo-Afghan wars, first from 1838 to 1842, and again from 1878 to 1881. In both cases, the British left bloodied and then quickly reverted to a more conciliatory policy. See 1 SYKES, supra note 7, at 1-12, 110-19.
43. See FLETCHER, supra note 29, at 142-54; GREGORIAN, supra note 25, at 133; M. HASAN KAKAR, THE PACIFICATION OF THE HAZARAS OF AFGHANISTAN 9 (Afg. Council of the Asia Soc'y, Occasional Paper No. 4, 1973).
44. See POLADI, supra note 21, at 184; GREGORIAN, supra note 25, at 133-34.
45. The Amir [Abdur Rahman] developed a doctrine of royal authority which rejected tribal election as too restrictive of his powers. He claimed that he ruled by divine right. . . . This argument asserted that the sovereignty residing in the Afghan people was a creation of God and the authority of the ruler whom they elected was, therefore, sacred. It enabled him to combine the sentiment of nationality with resentment against the British. NEWELL, supra note 15, at 44.
46. In 1893, the Amir signed a treaty demarcating the border between British India and Afghanistan, or the "Durand Line." See 2 SYKES, supra note 29, at 177
47. See FRASER-TYTLER, supra note 31, at 181-222; GREGORIAN, supra note 25, at 132-34.
48. See FRASER-TYTLER, supra note 31, at 189.
49. The author worked in Afghanistan for the United Nations from 1993-1996.
50. See FRASER-TYTLER, supra note 31, at 167-68. See generally HOPKIRK, supra note 30 (providing a complete account of this final chapter of the Great Game).
51. The Convention opens as follows: The High Contracting Parties, in order to ensure perfect security on their respective frontiers in Central Asia and to maintain in these regions a solid and lasting peace, have concluded the following Convention: Article 1 His Britannic Majesty's Government declare that they have no intention of changing the political status of Afghanistan. His Britannic Majesty's Government further engage to exercise their influence in Afghanistan only in a pacific sense, and they will not themselves take, nor encourage Afghanistan to take, any measures threatening Russia. The Russian Government, on their part, declare that they recognize Afghanistan as outside the sphere of Russian influence . . . . Extracts from the Convention Between the Governments of Great Britain and Russia Regarding Afghanistan, Aug. 31, 1907, Gr. Brit-Russ., art. I in PAK-AFGHAN DISCORD, A HISTORICAL PERSPECTIVE: DOCUMENTS 1855-1979, 57-58 (Mehrunnisa Ali ed., 1990) [hereinafter PAKAFGHAN DISCORD].
52. Treaty of Rawalpindi, Aug. 1919, Afg.-Gr. Brit, in PAK-AFGHAN DISCORD, supra note 41, at 61-62.
53. While the Afghans celebrate the signing of the 1919 Treaty as their Independence Day, they have continued to question the validity of the borders agreed to therein, claiming that they were the product of duress. Id. at 7.
54. Anglo-Afghan Treaty of 1921, Aug. 1921, Afg.-Gr. Brit., in PAK-AFGHAN DISCORD, supra note 41, at 63. While it seems obvious that this provision is directed toward noninterference by Britain in Afghanistan's affairs, the British were also greatly concerned about Afghan incursions into British India, due to uprisings in British India at the time and the toll that World War I had had on British resources. The newly crowned King Amanullah declared the 1919 Anglo-Afghan War perhaps in hopes of catching the British off guard and regaining some of the territory signed away by his grandfather. 2 SYKES, supra note 29, at 270-71.
55. See HANNUM, supra note 8, at 178-202, 370-406.
56. On the contrary, the fact that a significant number of Turkic Afghans came to inhabit northern Afghanistan, as a result of first Czarist then Cossack expansion and repression, left a mutual antagonism between the communist Central Asian republics and their southern Afghan kin. GREGORIAN, supra note 25, at 266, 332, 334, 474 n.43.
57. While unable to locate the law establishing what "identifiable" means, Mr. Abdul Zahir, an Afghan-Turkman who traveled to Ashkabad seeking a passport, reported that an interview and language test were all that was necessary at the time. Telephone Interview with Abdul Zahir, Afghan Turkman and scion of prominent carpet-trading family in northern Afghanistan and former UNHCR consultant (Nov. 1997).
58. See RUBIN, supra note 1, at 273.
59. See Grant M. Farr, Afghan Refugees in Pakistan: Definitions, Repatriation and Ethnicity, in THE CULTURAL BASIS OF AFGHAN NATIONALISM, supra note 10, at 141. See generally PAZHWAK, supra note 14 (detailing Afghan government support for the largely revanchist Pushtun "separatist" movement in Pakistan).
60. See Ahmed Rashid, Pakistan and the Taliban, in FUNDAMENTALISM REBORN?, supra note 4, at 72-73.
61. See Shahrani, supra note 4, at 213.
62. See Anwar-ul-Haq Ahady, Saudi Arabia, Iran and the Conflict in Afghanistan, in FUNDAMENTALISM REBORN?, supra note 4, at 122-31; RUBIN, supra note 1, at 273.
63. The Kochi ("movers") in Afghanistan are predominantly Pushtun, and have often enjoyed the support of the Afghan government in matters concerning the pursuit of their cultural practices, which necessitates crossing Afghanistan's borders. See DUPREE, supra note 7, at 164-80.
64. For a discussion of the relationship between Kabul and the rest of the country between World War II and the Soviet invasion, see RUBIN, supra note 1, at 62-80.
65. See David Weissbrodt & Teresa O'Toole, The Development of International Human Rights Law, in AMNESTY INTERNATIONAL, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948-1988, 17 (1988).
66. Ataturk had engineered a harsh but effective campaign of modernization and secularization in post-Ottoman Turkey. Amanullah attempted to emulate these reforms, albeit without the centuries-old, highly sophisticated centralized power apparatus that Turkey had inherited from the Ottoman era. See GREGORIAN, supra note 25, at 226-74.
67. The 1921 Constitution was significantly altered in 1923. See SAYED HASSAN AMIN, LAW REFORM AND REVOLUTION IN AFGHANISTAN (1993) (discussing Afghanistan's constitutional history); AMOS PEASLEE, CONSTITUTIONS OF NATIONS (1966) (text of constitution).
68. The 1921 Constitution was significantly altered in 1923. See SAYED HASSAN AMIN, LAW REFORM AND REVOLUTION IN AFGHANISTAN (1993) (discussing Afghanistan's constitutional history); AMOS PEASLEE, CONSTITUTIONS OF NATIONS (1966) (text of constitution).
69. th Sess. U.N. GAOR Hum. Rts. Comm., U.N. Doc. A/47/49 (1992); International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976). These are useful guides or checklists for evaluating the human rights protections of a constitution or statutory code.
70. For a discussion of self-identification, see Part II, supra.
71. However, the constitution established the Hanafi school, the most common of the four subsets of Sunnism Islam, as the controlling school of jurisprudence in Afghanistan. See AMIN, supra note 57, at 40.
72. Afghanistan (or Kabul) was briefly ruled by a Tajik bandit from the outlying mountains of Kabul named Bacha Saqqao. See 2 SYKES, supra note 29, at 314-21; FRASER-TYTLER, supra note 31, at 215-22.
73. See also NEWELL, supra note 15, at 162-85; DUPREE, supra note 7, at 565-86. See generally Ralph Magnus, The Constitution of 1964: A Decade of Political Experimentation, in AFGHANISTAN IN THE 1970S, 50 (Louis Dupree & Linette Albert eds., 1974) (discussing the goals and effects of the 1964 Constitution).
74. See Leon Poullada, The Search for National Unity, in AFGHANISTAN IN THE 1970s, supra note 62, at 34; RUBIN, supra note 1, at 71.
75. See AFG. CONST. OF 1964, art. 102, in CONSTITUTIONS OF NATIONS, supra note 57, at 24.
76. Id. at 8 (art 15).
77. Id. at 7 (arts. 3,8,15,35).
78. Babrak Karmal was the leader of the Parcham (flag) faction of the People's Democratic Party of Afghanistan (PDPA) and was installed by the Soviets as the leader of the DRA shortly after the 1979 invasion. See RUBIN, supra note 1, at 82, 122.
79. See RUBFN, supra note 1, at 146-47.
80. AFG. CONST. OF 1990, art. 65, in CONSTITUTIONS OF THE COUNTRIES OF THE WORLD 25 (Albert P. Blaustein & Gisbert H. Flanz eds., 1992).
81. See id. at 46 (art. 133).
82. Id. at 4.
83. Id. at 12-13 (arts.13, 14).
84. Id. at 18 (art. 38).
85. See id. at 17-24 (arts. 39-60).
86. See id. at 41 (art. 114).
87. See supra notes 68-75. There are a few odd exceptions, both obvious and hidden. Article 73 states that the president must be a Muslim and must have a wife who is born of Afghan parents. AFG. CONST. OF 1990, art. 73, in CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 69, at 27. Other provisions affirming laws enacted during the Soviet occupation, which granted certain emergency powers to the president, remain in place. For example, Article 144 provides for the suspension of certain basic rights in a state of emergency. See id. at 49 (art. 144).
88. AFG. CONST. OF 1990, art 79, in CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 69, at 30.
89. Most recently, the Taliban administration has repeatedly claimed that its severe strictures on individual rights, particularly those placed on women, will be altered once security is established in Afghanistan. See Nancy Hatch Dupree, Afghan Women Under the Taliban, in FUNDAMENTALISM REBORN?, supra note 4, at 146-47.
90. See AMIN, supra note 57, at 83-86, 140-47.
91. See id at 48, 66.
92. The few laws codified during Amanullah's reign were abrogated in 1929. See id. at 75, 88-89.
93. See id.
94. See id. at 18, 66, 76.
95. Id. at 45; Magnus, supra note 62, at 61; RUBIN, supra note 1, at 168.
96. See, e.g., HUMAN RIGHTS WATCH, AFGHANISTAN: THE FORGOTTEN WAR, HUMAN RIGHTS ABUSES AND VIOLATIONS OF THE LAWS OF WAR SINCE THE SOVIET WITHDRAWAL 61-97 (1991) (reporting on the human rights record of the republican government); RUBIN, supra note 1, at 111-75 (detailing the workings of the Afghan government from 1977-91).
97. See HUMAN RIGHTS WATCH, supra note 85, at 79-82; RUBIN, supra note 1, at 168; AMIN, supra note 57, at 135.
98. See NEWELL, supra note 15, at 193-94; SMITHETAL., supra note 9, at 219.
99. See U.N. ESCOR, 51st Sess., U.N. Doc. E/CN.4/1995/64, supra note 2, at 15; GUIDE TO INTERNATIONAL HUMAN RIGHTS PRACTICE 280-82, 285 (Hurst Hannum ed., 2d ed. 1992).
100. These conventions contain a series of broad-brush provisions to ensure protections for "peoples," "ethnic minorities," "national minorities," "nationals," or "citizens." They provide for the use of native languages in schools, courts, government offices and government employment; freedom of religion; and political and professional representation within government. In addition to group rights, the equal enforcement of individual rights would also help to eliminate disparities.
101. See reports cited supra notes 2 and 85.
102. See Shahrani, supra note 4, at 235.
103. See reports cited supra note 2.
104. See sources cited supra note 2.
105. See, e.g., JERI LABER & BARNETT RUBIN, A NATION IS DYING (1988). Following the Soviet withdrawal, greater access to the country and a depoliticized environment produced more objective accounts, such as the report cited supra note 85.
106. See, e.g., Final Report on the Situation of Human Rights in Afghanistan, U.N. ESCOR, 51st Sess., U.N. Doc E/CN.4/1995/64, supra note 2, at 2-4; Report on the Situation of Human Rights in Afghanistan, U.N. ESCOR, 48th Sess., U.N. Doc E/CN.4/1992/33, supra note 2, at 11-16.
107. See, e.g., Final Report on the Situation of Human Rights in Afghanistan, U.N. ESCOR, 51st Sess., U.N. Doc E/CN.4/1995/64, supra note 2, at 2-4; Report on the Situation of Human Rights in Afghanistan, U.N. ESCOR, 48th Sess., U.N. Doc E/CN.4/1992/33, supra note 2, at 11-16.
108. See Final Report on the Situation of Human Rights in Afghanistan, U.N. ESCOR, 51st Sess., U.N. Doc E/CN.4/1995/64, supra note 2, at 9.
109. See id.
110. See, e.g., HUMAN RIGHTS WATCH, VOL. 10 NO. 7, THE MASSACRE IN MAZAR-I-SHARIFF (Nov. 1998) (discussing indiscriminate killing of civilians); U.S. DEP'T OF STATE, supra note 2 (discussing reverse killings, torture, and arbitrary arrest by the Taliban); Rashid, supra note 10 (discussing Taliban attempting to starve Hazaras); Final Report on the Situation of Human Rights in Afghanistan, U.N. ESCOR, 52nd Sess., U.N. Doc E/CN.4/1996/64, supra note 2 (discussing inability of Taliban to prevent violations of human rights); Gannon, supra note 26 (discussing Taliban treatment of women).
111. See, e.g., HUMAN RIGHTS WATCH, VOL. 10 NO. 7, THE MASSACRE IN MAZAR-I-SHARIFF (Nov. 1998) (discussing indiscriminate killing of civilians); U.S. DEP'T OF STATE, supra note 2 (discussing reverse killings, torture, and arbitrary arrest by the Taliban); Rashid, supra note 10 (discussing Taliban attempting to starve Hazaras); Final Report on the Situation of Human Rights in Afghanistan, U.N. ESCOR, 52nd Sess., U.N. Doc E/CN.4/1996/64, supra note 2 (discussing inability of Taliban to prevent violations of human rights); Gannon, supra note 26 (discussing Taliban treatment of women).
112. See HUMAN RIGHTS WATCH, supra note 98, at 2 (citing at least 2,000 civilians and prisoners killed).
113. Only 10% of the population inhabited urban centers prior to 1979. See DUPREE, supra note 7, at 161.
114. See ROY, supra note 12, at 19-29.
115. Control of the capital is valuable for the international recognition, foreign aid, and investment opportunities it brings to whomever controls it Author's personal knowledge as U.N. representative in Kabul from 1995 to 1996.
116. After the Soviet withdrawal, President Najibullah changed the name of his party, the Peoples' Democratic Party of Afghanistan (PDPA), to the Hizb-i Watan (Homeland Party), in conjunction with his national reconciliation plan. to RUBIN, supra note 1, at 148.
117. See AMIN, supra note 57, at 62.
118. NEWELL, supra note 15, at 18.
119. The author lived and worked in the Hazarajat in 1994.
120. See KAKAR, supra note 33, at 8.
121. The author lived and worked in Hazarajat in 1994 and has experience with Hazaras generally.
122. See, e.g., POLADI, supra note 21, at 101; ROY, supra note 12, at 140.
123. See POLADI, supra note 21, at 2.
124. See id. at 12-22.
125. See KAKAR, supra note 33, at 1.
126. See id, at 1. For several other theories of the Hazaras' origin, see POLADI, supra note 21, at 1-5.
127. See KAKAR, supra note 33, at 2.
128. See id.
129. Id.
130. Shi'ite conversion and adherence also may have been intended to bind the Hazaras to the Persian empire to the west to counter the Mughal empire's expansion.
131. See KAKAR, supra note 33, at 3.
132. See id.
133. See id.
134. See id.
135. Id. at 4.
136. Id.
137. See id.
138. See Id. at 4-5.
139. See id. at 5.
140. See id. at 6.
141. Id.
142. See id at 7.
143. See id. at 3.
144. Id. at 8-9.
145. See id.
146. See ROY, supra note 12, at 139-40. Unlike Sunnism, the hierarchical nature of Imami and Isma'ili Shi'ism lends significant local authority to the pirs, shaykhs, sayeeds, and mullahs.
147. See POLADI, supra note 21, at 371-72; RUBIN, supra note 1, at 246; ROY, supra note 12, at 140.
148. See POLADI, supra note 21, at 374-75.
149. See ROY, supra note 12, at 139-45.
150. Although not a formal or democratic institution, the shura (roughly analogous to a local council or coalition) is a powerful participatory mechanism for decisionmaking, with a limited capacity to enforce norms and sanction community members. See RUBIN, supra note 1, at 229-30.
151. See id. at 226-33. The billions of dollars of weaponry that have poured into Afghanistan in the last 18 years have radically altered the economic and military power balance. Almost overnight, weapons became the most valuable commodity in Afghanistan, significantly influencing the barter-based economy. See id. at 196-203. For further discussion of the effects of international military assistance on Afghanistan's political structure, see id. at 203-46.
152. A better educated youth led to a period of political organization and the creation of two Hazara leftist/nationalist parties: one in Afghanistan called Hizb-i-moghol (party of Mongols), and another among the large émigré population in Pakistan called Tanzim-i-nasl-i-now-i hazara-yi-moghol (organization of the new Mongol Hazara generation). See ROY, supra note 12, at 140.
153. The author worked with community leaders throughout the Hazarajat as a representative for Oxfam in 1994.
154. Id.
155. RUBIN, supra note 1, at 65.
156. See id. at 73.
157. See POLADI, supra note 21, at 372.
158. See DUPREE, supra note 7, at 753.
159. See AN ANALYSIS OF SEVERAL RECENT AFGHAN LAWS 22 app. at 49 (Afg. Council of the Asia Soc'y, Occasional Paper No. 112, 1977).
160. Id. at 54.
161. See supra note 140. The author worked on agricultural and community development issues in Hazarajat as a representative for Oxfam in 1994.
162. See id.
163. See DUPREE, supra note 7, at-770-77.
164. Afghanistan: Another Bit Blows Up, ECONOMIST, Aug. 25, 1979, at 26.
165. See ROY, supra note 12, at 145.
166. See id. at 141, 145.
167. Id. at 141.
168. Id. at 140-41. Roy implies that this odd coalition resulted from the fact that many of the educated youth were fathered by the wealthy mirs. While either antifeudal or antireligious sentiments may have dominated the Hazara Maoist ideology, one could argue that kinship bonds trumped both.
169. The author acquired this knowledge from working in Afghanistan in 1993-96.
170. Conditions in the Hazarajat since the Taliban takeover in 1998 are not well documented. See generally HUMAN RIGHTS WATCH, supra note 98 (describing brutality targeted specifically against the Hazaras throughout Afghanistan).
171. ROY, supra note 12, at 145.
172. Rashid, supra note 10, at 28.
173. Telephone Interview with Khadem Sharza, a source with Hezb-e Wahadat (Nov. 30, 1997), Mazari has said "we demand a 25% share in all areas of Government," based on his assessment that the Hazaras constitute "approximately 26% of the population of Afghanistan." WAHADAT NEWS BULLETIN, No. 7, INTERVIEW WITH MR. MAZARI 3 (Dec. 1993).
174. Babrak Karmal Speaks to Jirga on Nationalities and Religion, BBC SUMMARY OF WORLD BROADCASTS (Dec. 31, 1984).
175. See supra note 140.
176. See POLADI, supra note 21, at 180.
177. See RUBIN, supra note 1, at 174. The mujahideen viewed this move as a hollow attempt by the embattled government to appear-both national and Islamic as it struggled to widen its base of support. Even after his government's collapse, however, Najibullah continued to advocate the creation of a federated state with semi-autonomous provinces and a representative central government. Interviews with Najibullah, in Kabul, Afghanistan (1995-96).
178. See "Mobilisation Centre" for Hazara Nationality Set Up, BBC SUMMARY OF WORLD BROADCASTS (Feb. 23, 1989).
179. Speech by Soltan Ali Keshtmand, BBC SUMMARY OF WORLD BROADCASTS (Oct. 31,1989).
180. See, e.g., End of Hazara Jerga; Closing Speech by Najib, BBC SUMMARY OF WORLD BROADCASTS (Sept 23, 1987).
181. See supra note 140.
182. See id.
183. See RUBIN, supra note 1, at 265-80. An interim government was established in 1992 and appointed first Sigtabullah Mojadedi, then Burhanuddin Rabbani, as its president. This government, however, never functioned in practice, as the president, prime minister, and defense minister were literally at war with one another. See id. at 271-74.
184. Ministry of Defence Offers Reassurance to Hazara Citizens of Kabul, BBC SUMMARY OF WORLD BROADCASTS (Mar. 16, 1993). These "mopping-up" efforts aimed to eject the Hazara Hezb-e Wahadat party faction from Kabul. Because the fighting in Kabul lasted several years, and the Hazara neighborhood that housed the party's stronghold bore the brunt of the violence, this campaign appeared to many in Kabul at the time to be a form of "ethnic cleansing."
185. Rabbani's Press Conference on Recent Political Changes and Economic Cooperation, BBC SUMMARY OF WORLD BROADCASTS (July 16, 1993) (emphasis added).
186. Defence Ministry Spokesman Reassures Hazara People, BBC SUMMARY OF WORLD BROADCASTS (Mar. 2, 1993).
187. id.
188. Afghan Government Statement: Security Will be Maintained, BBC SUMMARY OF WORLD BROADCASTS (Feb. 11, 1993).
189. For example, the central government used this tactic to prevent the Hazaras from supporting the rebel military faction led by Golboddin, accusing the latter of past abuses against the Hazaras: [T] he opportunistic and irresponsible faction of Hezb-e-Wahdat [Shi'ite Islamic Unity Party] has joined hands with the bloodthirsty and criminal Golboddin and, thus, wants to sacrifice the blood of the poor and persecuted Hazara nationality . . . . In the past Golboddin has never refrained from any measure against the Hazara nationality. He was proud of crushing and killing Hazaras and opposition to their participation in the political affairs of the country. Id. (alteration in original).
190. Montevideo Convention on Rights and Duties of States, supra note 3, at 19 (outlining criteria for statehood).
191. However, even provincial devolution of autonomy might spark serious controversy, because it may be necessary to gerrymander some of the provinces to remedy previously discriminatory boundaries. See supra note 11 and accompanying text
192. NEWLL, supra note 15, at 13-14.
193. Talibs are literally religious students. Taliban is the plural form of Talib.
194. For a somewhat biased historical accounting of the issues surrounding Pushtunistan (also called Pakhtunistan), see generally PAZHWAK, supra note 14. In 1947, Afghanistan was the only nation in the United Nations to object to Pakistan's entry as a member. Afghanistan and Pakistan severed diplomatic ties in 1961 over the Pushtunistan issue and resulting border disturbances. See DUPREE, supra note 7, at 491.
195. Evidence suggests that the Pushtuns in British India and in today's Pakistan exercised (albeit in limited way) their right to self-determination by first joining Pakistan and not agitating for secession. In the referendum on Pakistan's creation in 1947, "an overwhelming majority of the Frontier [Pushtun] electors voted for union with Pakistan." SYED ABDUL QUDDUS, AFGHANISTAN AND PAKISTAN: A GEOPOLITICAL STUDY 95 (1982). At the time of Indian independence and partition, there was a strong movement against partition within the Indian Pushtun community. However, time solidified the borders and afforded Pushtun participation in the political and military affairs of Pakistan. Pushtun political organization for secession in Pakistan has since been very limited. Therefore, some observers argue that by consistently failing to support moves to create a Pushtunistan or to rejoin Afghanistan, Pakistani Pushtuns have exercised their rights to self-determination in favor of remaining in Pakistan. Id. at 96.
196. See Ahmed Rashid, Pakistan and the Taliban, in FUNDAMENTALISM REBORN?, supra note 4, at 72, 72-75, 88-89.
197. Increasingly, the international community views conflicts like those in Afghanistan as an inconvenience to the global economy. The often quoted axiom that two countries with McDonald's franchises have never been at war with each other has led some observers to conclude that world peace will ensue if McDonald's franchises simply proliferate. The day the Taliban seized Kabul, the only two international entities to recognize the movement as Afghanistan's government were Pakistan (blamed for creating and funding the Taliban), and UNOCAL (a company negotiating a deal with the Taliban to build an energy pipeline through Afghanistan).
198. International Covenant on Civil and Political Rights, supra note 58, pt. 1, art. 1, cl. 1.
199. Although the United Nations has continued to deny Afghanistan's seat to the Taliban, former U.N. peace mediator Norbert Holl said in 1996, "Whoever controls Afghanistan is bound by the charter [of the United Nations]." Taliban Accepts Provisional Truce Offer, THE GUARDIAN, Oct. 22, 1996, at 12.