Calling the Taliban to account

A year has passed since the Taliban issued the latest version of their Code of Conduct, or Layha. The Code regulates how Taliban fighters should wage war and how they should deal with each other, with the enemy, and with the rest of the population. The Layha is a rule book for the Taliban, but it is also an aspirational document, projecting an image of an Islamic and rule-bound jihad and a quasi-state.

The first version of the Layha emerged in 2006 as an attempt to consolidate the movement, inspire fighters and curb their excesses. It seems, in particular, to have been a response to the fact that the Taliban’s self-image – as a movement bringing security and justice – was being undermined by corruption and abuses. The Code reflects the Taliban’s strategic dilemma as an insurgent movement that seeks to intimidate the population enough to deter "collaboration" with the Afghan government and foreign forces, but not be so brutal as to alienate local people or deter them from switching sides.

Updates of the Code in 2009 and 2010 illustrate the shifting dynamics of the movement and the leadership’s fears of fragmentation, their concerns about the uncontrolled killing of suspected spies, the exploitation of the jihad for criminal or material gain, and the need to attract the "opposition" with the Taliban’s own offer of amnesty and reintegration. Each new version of the Code has been longer, more detailed and more polished, expanding as the territory coming under the control of the Taliban has increased and presenting ever more sophisticated hierarchies and quasi-state structures.

Some articles in the Layha amount to orders to violate both international and Afghan law; for example, kidnapping is permitted, so long as it is not for ransom. However, the Code also has a number of articles which if applied could reduce civilian suffering in the conflict. For example, the Code threatens punishment against fighters and officials who do not "with all their power" take care of the "lives and belongings of the common people," and it includes attempts at judicial safeguards, such as bans on torture and forced confessions. There are also numerous attempts to stamp out what could be called "jihadi entrepreneurship," using the fight as cover to exploit people and make money.

Obviously, large gaps exist between rules and action, and the articles that call for the protection of civilian lives and property are often not heeded or are intentionally violated: Attacks leave dozens of civilians dead, suspected spies are assassinated, and local people are forced to pay taxes. And although the movement has set up mechanisms to address grievances, redress can be difficult to obtain, and command and control is often patchy when it comes to dealing with abuses. However, the fact that winning the support of the local population is crucial appears also to have led to some changes since 2006. For example, orders in the 2006 Code to beat and (eventually) kill recalcitrant teachers, burn schools and have nothing to do with NGOs – which were described as "tools of the infidels" – have been quietly dropped in 2009 and 2010.

There are obvious problems with the Layha, in that it condones and even orders actions that go against International Humanitarian Law, the body of law, including the Geneva Conventions, which regulate warfare. On the other hand, this report argues, the Layha could be used more proactively by political actors, journalists and human rights defenders to hold the Taliban to account, particularly in cases where they violate not only International Humanitarian Law, but also their own rule book. When UNAMA reported in mid-2010 that most civilian casualties were due to insurgent attacks and criticized the Taliban for violating their own Code, it hit a raw nerve. The Taliban reacted strongly, with denial, indignation, and a call for the setting up of a joint commission on civilian casualties. A small scrap of common ground was opened up in the stated desire by all parties to protect Afghan civilians.

Journalists – in their role of holding those in power to account – are accustomed to using whatever is to hand – whether rules, policies or an interviewee’s own words – to uncover discrepancies and lies. They also might find the Layha useful for sharpening their reporting, for example in asking for explanations when the Taliban issue fines, ransoms prisoners or conduct attacks that recklessly kill civilians, all actions which violate the Layha.

The Taliban are generally talked about in black and white terms, either as a group devoid of all morality or as abused and "disappointed brothers." Both approaches effectively let the movement off the hook. Pigeon-holing the Taliban with the Devil in effect places them beyond criticism, while the recognition that their motivation to fight may be political can easily slide into a failure to acknowledge Taliban crimes in a serious way. With negotiations and attempts at reconciliation in the air, it is important to expect more from the Taliban in terms of conduct that conforms with International Humanitarian Law. The Layha could be part of such a tougher and fairer approach. It provides a language and framework for condemning both specific operations and the way the movement generally wages war, creating an opportunity to use the Taliban’s own words to hold the movement to account.

Kate Clark is a senior analyst at the Afghanistan Analysts Network (AAN), and the author of a recent report for AAN on the Taliban’s code of conduct. This selection was adapted from the report’s executive summary.