This paper analyses the layers of legal protection in post-conflict Afghanistan for sexual assault by Afghan armed forces, with a focus on US, Canada, The Netherlands and Australian forces as part of ISAF.
On December 20, 2001, the United Nations Security Council Resolution (UNSCR) 1386 authorized the establishment of an International Security Assistance Force (ISAF) for Afghanistan, responding to the request of Afghan authorities to protect Kabul. The North Atlantic Treaty Organization (NATO) assumed command of the ISAF mission in August 2003. In October 2003, ISAF received a new mandate, provided for by UNSCR 1510, to expand its area of responsibility beyond Kabul and its environs. As of 2018, the NATO-Afghanistan Enduring Partnership proceeds with 16,000 personnel on the ground.
NATO has made significant progress understanding and operationalising the Women Peace and Security doctrine as it relates to the NATO-led Resolute Support Mission to train, advise and assist the Afghan security forces and institutions. This paper surveys the organisational and policy changes related to gender equality since 2001.
In terms of rhetoric, this commitment to gender justice is crucial to the mission. In September 2017, the NATO Secretary General Mr. Stoltenberg underlined that “we count on the Afghan government to make good on its commitments”, including reforms on rule of law, fighting corruption and protecting the rights of women and children. In return, NATO is committed to funding the Afghan security forces until at least 2020, and will continue to provide almost $1 billion in financial support each year.
In practice, this bargain to respect the rights of women and children has often been subjugated to the wider geo-political/strategic need to show professional improvement in the Afghan security forces. The troop-contributing countries to ISAF have struggled in particular with uniform or effective responses to the Afghan practice of bacha bazi. Bacha bazi ('boy play" in Persian) is practiced in some parts of Afghanistan by commanders and other influential men, usually associated with sexual exploitation and abuse of young boys. (See further, the National Inquiry on the causes and consequences of Bacha Bazi in Afghanistan, Afghanistan Independent Human Rights Commission, 8 August 2014, last accessed 10 July 2016.)
The practice is against Afghan law (although a draft law has been promulgated by the AIHRC to make the legal situation more clear), military codes, domestic law of most troop-contributing countries (such as Leahy Laws in the US) and international human rights and humanitarian law. And yet, a review by the Special Inspector General for Afghan Reconstruction released in January 2018, following a New York Times expose in 2015, found a lack of guidance, lack of uniform reporting system and serious pushback about how to achieve the mission if the Leahy law was fully implemented in the context.
These examples show a clear failure to implement such protections in the context of an ally integral to mission success, as opposed to an enemy combatant. I demonstrate that the gender issues inherent in this intervention were not properly understood and poorly responded to this this day, due to the culmination of four 'blind spots' in human rights law, military law and IHL.