Who Are the Hazara?
The largest ethnic minority in modern Afghanistan is the Hazara, a predominantly Shia community. Some historians believe that Hazara are the descendants of the Mongol armies, who were settled in Afghanistan in the mid-13th century, and may potentially be descendants of Genghis Khan and of the Tamerlane, though this thesis is disputed. Hazara Afghans are located primarily in the center of the country (Hazarajat), spanning several provinces in smaller, rural communities.
The persecution of the Hazara ethnic population in Afghanistan has clear historical roots, under the pretense of unifying the state. Waves of persecution have occurred by both state actors (Abdur Rahman Khan in 1888–1893) and non-state actors, such as ISIS-K (between 2018 and 2022). There is near-universal agreement that the Hazara people are persecuted, but this is where the general consensus ends. While all political persecution negatively impacts targeted communities and is particularly egregious when it is violent, it may not constitute war crimes, crimes against humanity, or genocide. To better understand why, it is helpful first to review each of these legal categories. In daily language, we might correctly refer to each of these or all of these categories as “atrocities”.
Atrocities: War Crimes, Crimes Against Humanity, & Genocide
When we are trying to discern between the legal meanings of war crimes, crimes against humanity, and genocide, we have to consider the context of the suspected crime(s). War crimes are exactly that- they are legally-impermissible acts of violence during a war (just because war involves violence doesn’t make it legal to do certain violent activities).
In other words, war crimes are “serious breaches” of international humanitarian law (IHL) committed against civilians or enemy combatants during an international or domestic armed conflict, for which the perpetrators may be held criminally liable on an individual basis.
Crimes against humanity can occur in both peacetime and war. Article 7 of the Rome Statute of the International Criminal Court (ICC) describes crimes against humanity in this way, “The notion encompasses crimes such as murder, extermination, rape, persecution, and all other inhumane acts of a similar character (willfully causing great suffering or serious injury to body or to mental or physical health), committed ‘as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Similarly, genocide can occur in both contexts.
Ethnic Cleansing or Genocide?
In considering the controversies embedded in identifying acts of genocide, it is important to consider the distinctions between ethnic cleansing campaigns and acts of genocide. Genocides can be specific portions of an ethnic cleansing campaign, and both may occur simultaneously.
To keep things simple, ethnic cleansing is when one group pursues the violent removal of another ethnic/religious group from a specific geographical territory.
Genocide pursues the destruction of the group and does not necessarily include a geographical component to the pogroms. Genocide specifically seeks to destroy the “unwanted” group, and may be based on broader identities than ethnic origin or religious affiliation, expanding the scope to include national origin or racial identities. It is important to note that the means for conducting ethnic cleansing can easily devolve into genocide through high mortality rates. Although the term genocide carries the connotation of being a large-scale massacre (the term massacre itself lacks a codified legal definition but generally implies killing defenseless civilians), in 2001, the International Criminal Tribunal for the former Yugoslavia (ICTY), assumed the posture of interpreting genocide might also include smaller-scale massacres, such as an incident in which 8,000 Bosnian Muslims were violently deported or killed during July in 1995.
The 1948 UN Convention on the Prevention and Punishment of Genocide defines genocide in Article II:
“Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.”
The word intent (underlined in the definition above) is a problematic one that presents challenges to courts pursuing cases that allege genocide.
The Controversy over Dolus Specialis
In international law, there is a controversy that surrounds the language “dolus specialis,” or special intent to destroy a group. While it may seem obvious to observers and victims of potential acts of genocide, the legal understanding of intent is disputed. The challenge in dealing with intent is that there must be evidence of an individual perpetrator’s state of mind (are they common soldiers carrying out what they understood to be lawful orders in a war, or are they heads of state planning strategies to try to carry out mass murder to try to cause an entire ethnic group to perish?) In the words of Canadian genocide studies expert Dr. Adam Jones, “proving a perpetrator’s state of mind is a massive problem.” Understandably, courts and commissions continue to grapple with the issue of what qualifies as intent.
One posture is that intent is interpreted to be awareness, that their orders or activities had to involve some level of awareness that the results would have the effect of destroying the targeted population. If we look for evidence through a strict lens of dolus specialis, evidence of intent might take the shape of an extermination order, such as Missouri Executive Order 44 calling for the extermination of members of The Church of Jesus Christ of Latter-day Saints in 1838, or the “Order of Extermination of the Nayars by Tipu Sultan” in 1788 along the Malabar coast in India. In dealing with allegations of these crimes, courts, tribunals, and commissions must locate their position on this issue and offer an interpretation of “intent” and how to apply that within their legal posture. Even if we reach a consensus on how to deal with a “special intent”, there are other challenges to overcome in discerning if a genocide has occurred.
In general, it is difficult to ascertain the truth about allegations of violent crimes, and even harder when there is no corpus of forensic evidence. Collecting and evaluating evidence in rural Afghanistan under the current Taliban administration is nearly impossible for foreign organizations. Evidence (i.e., mass graves, corpses) may be found via satellite images, via google earth, photographs, videos, or in the form of public declarations of pogroms, court rulings, or government press releases regarding attacks. Additionally, open-source intelligence (OSINT), such as print news, creates one possible avenue for investigating and substantiating claims.
A table can be viewed online that tracks a sample of recent OSINT reports regarding violent attacks against Hazara inside Afghanistan from August 2021 to June 2022. Pay attention to who is alleged to be responsible for the attacks in the “incidents” column.
The table can be accessed here (PDF, 4 pages).
In these incidents, which include violent attacks but not forcible deportations, death and injury tallies remain far below a total of 1,000 victims. Given the considerable size of the Hazara population, these atrocities clearly remain small-scale massacres. There could be other forms of evidence not published in open-source media or inadvertently excluded from the sample of OSINT reporting above, of course, but there is no practical way to access that type of evidence and substantiating data if it remains unpublished. This sampling is intended to be illustrative, not comprehensive. There are no intentional omissions.
Given sufficient evidence, including medical certificates/death certificates, photos, video, other forensics data, and public declarations, an international court could consider the potential for genocide, though unlikely. This is due, in part, to the quality of evidence of the alleged crimes, as well as other factors such as jurisdiction, establishing that all domestic legal remedies have been formally exhausted, and the court’s capacity to begin a new case. For reference, the International Criminal Court has tried 31 cases and issued judgments against 50 individuals across those cases. None of the indicted are Afghan nationals or involved in the country. Notably, there are 23 trials still ongoing (these cases progress slowly). Justice from these trials is generally symbolic in nature.
The attacks identified in the table, such as on the Shia mosques and predominantly Hazara schools, though particularly heinous in nature, and are–of course–morally unacceptable occurrences and certainly crimes of terrorism and murder under Afghanistan’s domestic law even if they are found to not meet the criteria for genocide or war crimes.
Can Hazara Victims Seek Justice?
Ultimately, the Taliban are presently responsible for the safety and security of all residing within the boundaries of their territorial control. While they appear to lack the competence to effectively deal with ISIS-K, it is the Taliban’s obligation to enforce both domestic and international law in Afghanistan, given the absence of government. The Taliban claim to have the authority to free Afghanistan of its international legal obligations- but until they have international recognition as a government (requiring adherence to international law) they cannot withdraw from the treaty law such as the Convention of the Elimination of Discrimination Against Women (CEDAW). Other treaty laws apply in Afghanistan even if a government refuses to agree to the law, such as the 1984 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. The Taliban can face further international sanctions for apparent violations of international law. Economic sanctions, however, may actually further impoverish civilians in Afghanistan as they are a slow-acting measure for accountability.
Hazara families surviving the crimes that resulted in the death of family members, such as the parents of children killed in the recent school bombing, may try to seek justice in an international forum under universal jurisdiction. However, it may be required to show they have first exhausted domestic legal remedies. The post-attack aftermath is painfully difficult to navigate, and nothing an international court can do will truly compensate for the needless deaths of these innocent children. Still, the pursuit of justice is a worthy one.
Map: Afghanistan Political and Security Developments, DFAT Thematic Report, August 2021 to January 2022, Australian Government, Department of Foreign Affairs, published 14 January 2022. Creative Commons Attribution 3.0. (click here for a larger map image)
Author: Lark Escobar is a graduate student in the Fletcher School of International Law and Diplomacy at Tufts University (a joint program with Harvard University). She deployed to Afghanistan in 2010 and 2011 where she worked on training programs for the Afghan National Army (including the Afghan Air Force) and Afghan National Police. Lark has been involved in the Afghan Evac effort since mid-August 2021.