Years of progress (2004–21)

The fall of the Taliban in January 2004 marked the beginning of a new chapter in Afghanistan’s history, after a lengthy period of foreign dominance and war and political instability. The newly (re-)established government of Afghanistan was based on the rule of law, social justice, the preservation of human dignity and human rights, and the fundamental freedoms of the people.Footnote ⁷ The democratic government that was established sought to create a society free of oppression, tyranny, and violence and was committed to building a prosperous society.Footnote ⁸ The government also pledged to ban all forms of discrimination against Afghan citizens and to develop effective programs for the advancement of science, culture, literature and the arts.Footnote ⁹ The international community and international organizations supported the new Afghan government in this endeavor and, for example, in the field of cultural heritage where the United Nations Educational, Scientific and Cultural Organization (UNESCO) inscribed two Afghan properties on the List of World Heritage in Danger in the early 2000s at the time that the Taliban regime was losing control of the country.Footnote ¹⁰

In the domestic legislation of Afghanistan, a new Law on the Preservation of Historical and Cultural Monuments (Cultural Heritage Law) of Afghanistan was adopted in 2004 comprising nine chapters and 85 articles, based on Article 9 of the country’s Constitution.Footnote ¹¹ It should be noted that this Cultural Heritage Law states in Article 3 that “[n]o law in Afghanistan can be contrary to the beliefs and rules of the holy religion of Islam.” Here, then, we see the aforementioned constraint placed by the requirement to respect Islamic values and principles in developing heritage protection legislation. However, it is important to place this in context and understand that it is not an uncommon provision in the constitutions of Islamic-majority countries.Footnote ¹² Perhaps more pertinent to this article, it also reminds us that the Islamic context prevailing in the country since the seventh century ce, and the influence of the Taliban on the respect for the country’s cultural diversity and pre-Islamic heritage, is not a function of their Islamic character per se as much as the exceptionally narrow and strict interpretation of IslamFootnote ¹³ that they apply. According to the Cultural Heritage Law, as the body with primary responsibility for protecting cultural heritage, the Ministry of Information and Culture of Afghanistan developed and adopted the first Five-year Strategic Plan in the field of cultural heritage protection in 2011. A five-member commission was established for the purposes of implementing this plan,Footnote ¹⁴ which set out four major and fundamental goals:

• • preserving and protecting cultural heritage, enriching cultural assets, and preserving cultural diversity in order to develop and strengthen the national culture of the country;

• • building and strengthening the capacity of the media to inform the public and raise awareness as well as monitoring the performance of the public and private media;

• • developing tourism and attracting tourists in order to introduce them to the country’s culture and to increase revenues; and

• • supporting young people in various political, social, economic, and cultural fields in order to ensure a prosperous future for them.

Here, then, we see a clear attempt to reconcile the protection of the cultural heritage of Afghanistan (in part an element of a unifying national identity) with the realities of a country comprised of a number of cultural minorities with their own distinct cultural and religious identities. It is interesting that the second goal recognizes the importance of public education and awareness raising in this context, though with a degree of central filtering and control. We also see in the third goal the understanding that heritage is also a social and economic resource and a desire to exploit the economic potential of tourism related to the country’s rich cultural heritage. The wish to improve the lives and opportunities of young people by engaging them in cultural heritage and its management as one of various political, social, economic, and cultural fields is a further recognition of this goal as well as the potential of cultural heritage to support sustainable forms of development. Of course, these goals are highly aspirational given the economic, social, and political realities described above, but they do remind us that having such aspirations regarding heritage is not a luxury confined only to wealthy and relatively stable societies. It also reminds us that cultural heritage and its function within society will have to be an integral part of the country’s return to stability in the future and is not simply a contingent add-on in future humanitarian and development planning from outside or future internal policy making.

In order to achieve more effective implementation of the Cultural Heritage Law, the Ministry of Information and Culture undertook specific measures in the following areas:

• • identifying, inventorying, and protecting tangible cultural heritage;

• • identifying, inventorying, and protecting intangible cultural heritage;

• • operating the National Museum of Afghanistan;

• • developing a National Tourism Policy; and

• • encouraging tourism research, development, and marketing.

At the same time, the Afghan government has been able to achieve significant success on the ground – in particular, in the field of the preservation and protection of tangible cultural heritage: up until the drafting and publication of the aforementioned Five-year Strategic Plan, more than 1,200 monuments had been formally inscribed as part of the national heritage, with the details of more than 112 historical monuments recorded and 108 identification plates attached to historical monuments in Kabul. Care was also taken to preserve and protect historic monuments, prevent the destruction of 4,700 manuscripts, make digital copies of more than 30,000 historic photographs, and restore more than 9,474 antiquities from different countries and register them in the database of the National Museum of Afghanistan. More than 7,000 antiquities were obtained from archeological excavations and registered in the official database, 11 overseas and five domestic exhibitions of antiquities were held, several libraries were constructed, exhibitions of paintings, calligraphy, miniatures, and handicrafts were held nationally, and a national theatre festival was organized, among other activities.Footnote ¹⁵

More recently, civil society and ethnic minority groups have been engaged in monitoring how measures to protect and promote the diversity of cultural expressions under UNESCO’s 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions are being implemented,Footnote ¹⁶ according to the four-yearly periodic report to that treaty submitted by Afghanistan in 2016.Footnote ¹⁷ The report also stated that these organizations and groups are in a position to make demands of the government over these measures and their implementation. This demonstrates a desire on the part of the government to achieve a degree of participation by civil society as well as an inclusive approach towards cultural policy-making that is essential in a country such as Afghanistan, even if realizing these aims can be challenging. This reminds us of the strides forward that had been made by 2021 not only in providing a protective regime for Afghanistan’s heritage but also in democratizing the process of setting the wider cultural policy context. How far the Taliban respects these gains or falls back from them should be watched closely over the next few years, and they should be regarded as a minimum benchmark to be secured in Afghanistan in the future.

Process of identifying and inscribing cultural heritage

An Archaeological Committee was established under the Cultural Heritage Law, which was composed of the following ex officio and expert members: the president of the Archaeological Institute (as the chair); two archeologists with scientific competence who are selected by the Ministry of Information and Culture; an experienced member of the National Museum who is selected by the official of the Ministry of Information and Culture; a historian from the Academy of Sciences of Afghanistan who is selected by the president of the Academy of Sciences; an academic member of the Faculty of Social Sciences of Kabul University with a high academic ranking who is selected by the president of Kabul University; and an engineer from the Department of Preservation and Restoration of Historical Monuments who is selected by the Ministry of Information and Culture.Footnote ¹⁸ The main responsibilities of this committee include the study and investigation of Afghanistan’s historical and cultural monuments and the assessment of other works of a scientific, artistic, and/or cultural value that are less than 100 years old. Their decisions require the approval of the Ministry of Information and Culture to be put into action.Footnote ¹⁹ Acting in coordination with the Department for the Preservation and Restoration of Historical Monuments, the Archaeological Committee is required to examine and propose for registration all ancient buildings and historical sites (including historic aquifers) as well as to determine their boundaries and gather and archive all historical documents and texts relating to them.Footnote ²⁰ After immovable historical monuments have been officially identified as historical and cultural monuments, a registration plate should be placed on the building and a copy sent to the relevant municipality.Footnote ²¹ In the case of movable antiquities, if any artifacts were in the possession of real or legal person before the enactment of the Cultural Heritage Law, those persons are obliged to report these artifacts to the Archaeological Committee or, in provincial areas, to the provincial Departments of Information and Culture of the ministry for official registration. In such cases, their ownership rights will be protected.Footnote ²² Provincial Departments of Information and Culture should provide the details of the artifacts and objects that were referred to them for registration, and these objects have to be registered within a maximum period of 15 days. The Archaeology Committee is then obliged to inform them officially of any decision relating to these items and to send a copy of the registration card to the relevant Departments of Information and Culture within three months.Footnote ²³

The listing and inscription of tangible cultural heritage

After identifying and inscribing an antiquity or other item of cultural heritage, a list of cultural heritage present in the territory of Afghanistan should be established by local- and national-level administrations, in cooperation with governmental and non-governmental institutions and in accordance with the contents of the 2020 Procedure Governing Tangible Cultural HeritageFootnote ²⁴ and other related legislative acts. The details of these inscribed antiquities and items must be updated regularly.Footnote ²⁵ Needless to say, given the current situation in Afghanistan and the lack of full government control over its borders as well as the economic poverty and cultural backwardness of a significant part of the Afghan population, merely recognizing the ownership of such items by real and legal persons is not enough in itself to ensure this and to encourage them to register the property in question. It seems that the government should consider providing additional incentives for this in order to encourage owners of such items to register them and to accelerate their identification and registration in order to prevent smuggling and the illegal removal of these artifacts from the country. This is especially important at present since the lack of central control over the borders is typical of a failed state such as Afghanistan, and, in addition, those who were able to flee the country after the Taliban took over have sought to carry their wealth in whatever convertible form they can, including antiquities. The relevant administrative departments are also obliged to create a list based on the tangible cultural heritage database of Afghanistan and in accordance with the relevant procedural rules and other legislative instruments as well as any international treaties protecting cultural heritage to which the government of Afghanistan has acceded.Footnote ²⁶

In cases where tangible cultural heritage has a national value and is representative of the entire nation of Afghanistan, its inscription requires the proposal of the relevant department and the approval of the Committee for the Protection of Tangible Cultural Heritage of Afghanistan (Tangible Cultural Heritage Committee). Its value is subject to the law and is determined by the Tangible Cultural Heritage Committee. Lists of tangible cultural heritage of Afghanistan are prepared at the provincial and district levels by the relevant departments following the approval of the Tangible Cultural Heritage Committee and the approval of the Ministry of Information and Culture.Footnote ²⁷ The question that then arises is: what are the national values in question and by what criteria does heritage become nationally valuable in view of the aforementioned ethnic diversity that is present in the country? Given the very important role of values in the formation of national identity and the nation-building process, which is one of the main requirements for achieving stability and security in Afghanistan, it is necessary to identify a general and inclusive framework for national values and to not allow them to be reduced to ethnic, racial, or linguistic terms. This means that the scope of inclusion of national values must be mapped out in such a way as to prevent the denial of ethnic, linguistic, and racial identities and to reject their transformation into a monolithic (ethnic, linguistic, or racial) national identity under any pretext. Rather, these should provide the basis for convergence, solidarity, and national unity among the Afghan people by relying on historical commonalities and a sense of pride. As can be seen, the Tangible Cultural Heritage Committee has a key role to play in listing and registering Afghanistan’s tangible cultural heritage, and its membership consists of nine people of whom five are present ex officio and four are appointed based on the proposal of the official of the Ministry of Information and Culture and with the approval of the president.

Although no members of the Tangible Cultural Heritage Committee directly represent cultural communities and minority ethnic groups,Footnote ²⁸ the presence of academic specialists on this committee, independent of the cultural heritage authority, is important since they are often in a position to speak on behalf of such groups and community members. However, one of the challenges that has always overshadowed the performance of the former Ministry of Information and Culture of Afghanistan in implementing measures for the protection of cultural heritage has been the systematic discrimination carried out by this ministry, especially at the highest levels. For example, during the tenure of Karim Khurram, the former minister of information and culture of Afghanistan, from March 2006 to January 2010, words of Persian origin (such as farhang, which means culture) were removed from nameplates attached to the ministry (he changed the signboard of the ministry from Persian to Pashto and removed Persian terms from the signs inside the building). Furthermore, he organized the destruction of 25 metric tonnes of books written in Persian, including 11 historical and cultural tomes.Footnote ²⁹ It should be noted that, according to the Afghan Constitution, both Pashto (the language spoken by the majority of people in Afghanistan) and Dari (the Afghan form of Persian) are the official languages of Afghanistan. Although these problems were particularly apparent during Khurram’s tenure as minister, other officials who followed him made no attempt to change these policies. In the current situation, there is little hope for the elimination of such systematic discrimination, based on ethnicity as well as religious affiliation,Footnote ³⁰ and there is always the risk that the final opinion given by a ministry official on a proposal from the Tangible Cultural Heritage Committee, including the decision to approve or deny of the inclusion of a monument or work as part of Afghanistan’s cultural heritage, may be negatively impacted by ethnic, racial, and linguistic prejudices. It would therefore be preferable if, in this procedure, the results of the committee’s investigations and deliberations were approved directly or referred to the Cultural Commission of the Parliament for approval.

In addition to arranging, reviewing, and approving the national list of tangible cultural heritage, the Tangible Cultural Heritage Committee is also tasked with submitting proposals to the ministry for the nomination of cultural heritage properties for inscription on the World Heritage List and coordinating with relevant national and international institutions. In this latter role, the committee is expected to take into account the legislative and policy instruments for the identification, classification, and registration of the tangible cultural heritage of Afghanistan, in accordance with the obligations of international treaties for the protection of cultural heritage.Footnote ³¹

The listing and inscription of intangible cultural heritage

Intangible cultural heritage (ICH) makes up an important part of the heritage of the country, although it has not been accorded much official heritage significance until very recently. Some examples of Afghan ICH elements include the Behzad style of miniature painting, traditional sericulture and silk production, yalda night (a celebration of the winter equinox that is also celebrated in Iran), various forms of embroidery, the attan (a national dance),the know-how and skills associated with making the rubab (a traditional musical stringed instrument), and the celebration for Norouz Footnote ³² (the Persian New Year celebrated on 21 March).Footnote ³³ It is relevant to mention here that the preservation of cultural diversity is understood as a leading objective of safeguarding ICH under UNESCO’s 2003 Convention for the Safeguarding of Intangible Cultural Heritage (CSICH).Footnote ³⁴ This is, of course, of potentially great importance for such a culturally diverse country as Afghanistan, but it also presents political and policy challenges to a government seeking to shore up a sense of national unity in such a context. In such a situation, even becoming a party to the CSICH (in 2009) and setting policies for its implementation can be seen as an achievement in itself. The identification and inscription of intangible cultural heritage located in the territory of Afghanistan should be undertaken by the relevant governmental office while taking into account the content of the Procedure for Registration, Identification, and Protection of Afghanistan’s Intangible Cultural Heritage (Intangible Cultural Heritage Procedure)Footnote ³⁵ in implementing Article 2 of the Cultural Heritage Law and other national and international standards contained in the legislative documents of Afghanistan. The department responsible, in cooperation with governmental and non-governmental institutions, should observe the provisions of the procedure and any other legislative instruments related to the preparation and organization of Lists of Intangible Cultural Heritage at the local and national levels, and the relevant office is obliged to update the list regularly.Footnote ³⁶ The national inventory of intangible cultural heritage of Afghanistan should be created in accordance with the contents of the Intangible Cultural Heritage Procedure, other legislative documents, and the CSICH.Footnote ³⁷

The process of inscribing intangible cultural heritage on the national inventory involves the chosen element being proposed by the relevant governmental office; in the case of material cultural heritage, the condition of representing the entire nation of Afghanistan is necessary for its evaluation as an element of the national intangible cultural heritage. This evaluation is carried out by the Committee for the Protection of the Intangible Cultural Heritage of Afghanistan (Intangible Cultural Heritage Committee),Footnote ³⁸ and it is only after receiving the committee’s approval that it is duly inscribed. At the provincial level, intangible cultural heritage elements are treated similarly to tangible cultural heritage, and, after approval by the Intangible Cultural Heritage Committee, the list is published with the approval of the ministry.Footnote ³⁹ The requirement for ICH elements to be recognized as national heritage – in that they represent the entire nation of Afghanistan – might appear to be somewhat paradoxical for a form of heritage that is so deeply rooted in local and other specificities. However, this requirement is, as noted above, also important for shoring up the fragile sense of a unitary national identity made up of the diverse cultural identities of the various ethnic and religious minorities that comprise this nation. It should be seen, therefore, as a necessary part of the process of nation building that Afghanistan is still undertaking, which has experienced a major setback with the recent return to power of the Taliban.Footnote ⁴⁰

The Intangible Cultural Heritage Committee plays a key role in compiling the national inventory of ICH elementsFootnote ⁴¹ and implementing the Intangible Cultural Heritage Procedure. It has been established with the aim of better regulating matters related to the identification, documentation, development, and safeguarding of intangible cultural heritage. The committee may also convene meetings with representatives of the relevant departments of the ministry and with the national and international institutions located in Afghanistan that work to protect intangible cultural heritage.Footnote ⁴² Like the Tangible Cultural Heritage Committee, the seven members of the Intangible Cultural Heritage Committee are formally proposed to the president by the Ministry of Information and Culture for approval and include:Footnote ⁴³ the deputy minister for culture and arts affairs (chair); the director for popular culture; one representative of the Anthropology Department of the Academy of Sciences; one representative of the Archaeological Department of Kabul University; the head of the Ethnography Department of the National Museum; and two specialists in the Department of Intangible Cultural Heritage selected by the Ministry of Information and Culture.Footnote ⁴⁴ The composition of this committee does not reflect the notion of participation by “communities, groups and … individuals,” as required under Article 15 of the CSICH, or the involvement in the inventorying of these primary actors with non-governmental organizations (NGOs), as foreseen under Article 11(b) of this convention. The presence of academic experts can be a positive, however, especially for those who conduct fieldwork and may well be closely linked with the relevant groups and communities, although this represents an indirect form of “participation.”

In addition to its role in evaluating ICH elements for inclusion in the national inventory, the Intangible Cultural Heritage Procedure has assigned a number of tasks to the Intangible Cultural Heritage Committee.Footnote ⁴⁵ These tasks include:

• • the classification of the intangible heritage of Afghanistan, in accordance with the terms of the CSICH and other relevant legislation;

• • the identification of priorities and the arrangement of work plans for the identification, inscription, and safeguarding of intangible cultural heritage;

• • the reporting on and evaluation of activities related to intangible cultural heritage for the Ministry of Culture and Information; and

• • the submission of the necessary information to the official responsible for intangible cultural heritage in the ministry for nomination to the Representative List of Intangible Cultural Heritage of Humanity (under the CSICH).

Monitoring the implementation of the Cultural Heritage Procedures for both tangible and intangible cultural heritage is undertaken under the oversight of the deputy minister of culture and arts, with input from the two committees.Footnote ⁴⁶ As noted above, the make-up of the Intangible Cultural Heritage Committee does not guarantee this, but it provides some potential for the views of the relevant bearer communities to be heard in the process. However, this committee’s oversight role is limited to an internal monitoring of the systems carried out within the framework of the Ministry of Information and Culture, and there is no external oversight of the performance and decisions of the two committees in question. This is potentially dangerous for a country where the process of nation building is still taking place and is not yet complete since it could lead to the collapse of national values into ethnic, linguistic, and even religious values.

Indeed, we are actually witnessing some such incidents – for example, the removal of the Dari language from the Afghan national currency,Footnote ⁴⁷ despite its equivalent status to that of Pashto in the country’s Constitution. Government officials need to understand better how to deal with the legacy of poets, scientists, and other artists from ethnic and linguistic minorities as well as those of their artistic works that still remain in Afghanistan. One recent case involving an ethnic minority’s cultural heritage is that of miniature painting, which was inscribed on the Representative List of Intangible Cultural Heritage of Humanity under the CSICH^, in the name of Azerbaijan, Iran, Turkey, and Uzbekistan in 2020 but without the inclusion of Afghanistan, despite a subsequent protest of Afghanistan. Although miniature painting is done by Afghan artists, it was not regarded by the government of the time as a “national” heritage since most of the famous miniature painters are from the Persian-speaking ethnic minority; it would seem that the lack of government attention to this heritage – until it was “claimed” by other countries – is due to the perceived ethnic affiliation of its masters.

Taking a broad approach toward regulating cultural heritage

Article 9 of the Constitution of Afghanistan emphasizes that antiquities are the property of the state and require the state’s protection and administration in accordance with the law. Under the Constitution, cultural heritage has not been considered in its broadest sense, but, in practice and in the main legislation,Footnote ⁴⁸ a broader view has been taken such that encompasses, for example, intangible as well as tangible elements. In addition, it asserts that historical and cultural monuments belong to the Afghan people, and it has made their protection a common duty of the government and the people.Footnote ⁴⁹ Formally, it considers historical and cultural monuments to be the property of the government of AfghanistanFootnote ⁵⁰ and does not consider a zolidi’s (possessor’s)Footnote ⁵¹ claim over immovable historical and cultural monuments to be admissible and does not consider any justification for proving personal ownership, even if a long time has passed.Footnote ⁵² In other articles, however, it recognizes the private ownership of movable natural objects under certain conditions.Footnote ⁵³ The law also prohibits the purchase, sale, or transfer of cultural property by private persons without obtaining a license and sets out punishments for those who violate this requirement.Footnote ⁵⁴ Furthermore, it underlines the need to provide incentives for those who assist government agencies in the discovery of historical and cultural artifacts.Footnote ⁵⁵

Other legislative acts also assert the requirement to protect historical monuments and cultural heritage – for example, the Law on MunicipalitiesFootnote ⁵⁶ contains a chapter on the subject of the care and protection of cultural heritage and allocates control over the development of areas adjacent to cultural heritage property and the management of historical and cultural monuments to the Archaeological Committee.Footnote ⁵⁷ Environmental Law no. 1385 also considers the preservation of natural, ancient, and cultural heritage as one of the goals of creating a system of national protected areas.Footnote ⁵⁸ The Penal Code of Afghanistan also deals with crimes against historical or cultural monuments and treats a number of actions as criminal, such as causing damage to historical and cultural monuments, failure to notify the discovery of historical and cultural monuments, illegal construction, smuggling, construction of buildings in the registered area, alteration of an inscribed building, causing damage to inscribed ancient sites, and illicit excavation of ancient sites.Footnote ⁵⁹

Article 7 of the Constitution of the country stresses the need for compliance by the government of Afghanistan with the Charter of the United Nations (UN Charter), other international treaties to which Afghanistan has acceded, as well as the Universal Declaration of Human Rights.Footnote ⁶⁰ Afghanistan is a party to relevant international instruments such as the 1954 Hague Convention,Footnote ⁶¹ the 1956 Statute of the International Centre for the Study, Preservation and Restoration of Cultural Property (as amended in 1963 and 1973),Footnote ⁶² the International Covenant on Economic, Social and Cultural RightsFootnote ⁶³ and the International Covenant on Civil and Political Rights,Footnote ⁶⁴ the CSICH,Footnote ⁶⁵ and the Convention on the Protection and Promotion of Diversity of Cultural Expressions.Footnote ⁶⁶ Further, the establishment of an Independent Commission for Monitoring the Implementation of the Constitution has been envisaged.Footnote ⁶⁷ Such a body would strengthen this and other related provisions, although this mechanism has not yet been put in place.

With regard to institutional responsibilities for administering and protecting cultural heritage, the Department of Historical Monuments of the Ministry of Information and Culture is primarily responsible for overseeing the inscription, restoration, and protection of historical monuments. Several other governmental departments also have specific responsibilities, including the Operational and Financial Development Support Unit of the Presidential Office, the Ministry of Urban Development and Mosques, the Ministry of Urban Development and Land, and the Department of Historic Restoration of the capital. Projects and programs related to protecting and safeguarding cultural heritage are usually carried out through the coordination between these different governmental institutions. A Technical Board consisting of representatives of these institutions and some NGOs active in cultural heritage protection, such as the Aga Khan Foundation, has also been established to support this cooperation. Among these, the Operational and Financial Development Support Unit (Presidential Office) is the only one of these institutions that does not coordinate directly with the Ministry of Information and Culture and the other institutions active in the field of cultural heritage, and it operates independently.

Hence, we see that numerous legislative tools and guarantees as well as institutional and cooperative mechanisms have been established for the purpose of protecting Afghanistan’s cultural heritage and controlling the activities that affect it. However, there remain serious challenges in the shape of extensive bureaucracy, bribery and corruption, extremist religious beliefs, illiteracy, the economic and cultural poverty of the people, weak governance, and the influence of the antiquities smuggling mafia, such as the Haqqani Network, among other groups.Footnote ⁶⁸ Together and reflecting the realities of a failing and failed state, these issues have proven to be major obstacles to the effectiveness of this protective regime. From the distant past up to the present, these and other challenges have faced the effective implementation of the law and ensured the monitoring, control, and protection of Afghanistan’s cultural heritage in practice.Footnote ⁶⁹ However, despite all these obstacles, Afghanistan’s progress in the field of cultural heritage over the past two decades cannot be denied. What remains to be seen now is how the most recent upheaval in the country with the return of the Taliban regime to power will affect this progress.

The supervision of activities related to cultural heritage

We can infer from the above discussion that decision making in the field of cultural heritage goes beyond the monopoly position of the government in its narrow sense, and there has been an attempt in drafting the legislation to lessen the influence of elites in the decision-making process. With the presence in the decision-making process of representatives of the Academy of Sciences of Afghanistan, the country’s highest scientific research institution and an independent organization with its own budget, as well as specialists in cultural heritage from Kabul University (the main university of Afghanistan), experts from the National Museum of Afghanistan, and other experts in both tangible and intangible cultural heritage (albeit selected by the Ministry of Information and Culture), there is some room for non-governmental expertise to be involved in the process of setting and implementing the relevant policies. However, as we have seen, there is little or no direct involvement or participation by heritage bearers or members of Afghanistan’s several ethnic minorities, unless they qualify among the aforementioned scientific experts. Although scientific experts may be understood to speak for themselves up to a point, they are also beholden to the government in many ways for their positions and budgets. Moreover, as 10 years of experience in the operation of UNESCO’s 1989 Recommendation on Safeguarding Traditional Culture and Folklore had demonstrated by 1999, scientific expertise has a limited role to play in ensuring the voice and participation of bearers in the safeguarding process (from identification through management), and these experts also serve their own research interests and agendas that may be quite far removed from the interests of the cultural communities and their members.Footnote ⁷⁰

It is noteworthy that special measures have been put in place to monitor decisions taken in this policy and legislative system. In addition to the aforementioned monitoring carried out by the deputy minister of culture and arts in cooperation with the relevant committees (as set out in Article 6 of the Tangible and Intangible Cultural Heritage Procedures), the ministry’s Five-year Strategic Plan also envisions oversight by ethnic minorities and civil society, although no specific mechanism for this has yet been put in place. If such a mechanism were to be established and become well established with a clearly defined and effective process, it would be a highly significant move. Although this looks unlikely in the short or even medium term, the fact of its inclusion as an ambition of the Five-year Strategic Plan certainly signals a growing awareness among policy and law makers of the need in such a diverse society to have a high degree of consultation and participation in the decision making related to cultural heritage. Under the terms of the Law on Access to Information,Footnote ⁷¹ the Ministry of Information and Culture of Afghanistan established a five-member Access to Information Commission, and coordination between this commission and government agencies, civil society, and the media ensures, at least in principle, access to information for all Afghans.

Although the Law on Access to Information does not make direct reference to the constitutional obligation placed on the government to comply with the UN Charter, international treaties to which Afghanistan has acceded, and the Universal Declaration of Human Rights, it is in compliance with this requirement. This law aims to guarantee the right of access of natural persons to reliable information from governmental departments, thus ensuring transparency, strengthening the culture of information, public participation in governance, accountability of governmental departments and fighting corruption, as well as observing the right to form one’s own opinions and to express and share them freely,Footnote ⁷² in accordance with Article 3 of the Afghan Constitution, which states that “[e]very human being has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

The members of the Access to Information Commission are appointed by a selection committee whose composition reflects the legislators’ determination to establish a mechanism to provide indirect oversight of the decisions made and activities carried out in the cultural heritage sector (Article 20). This requires the presence of representatives of the following institutions, along with the minister of information and culture on the selection committee:

• • a member of the Supreme Court of Afghanistan, selected by the Supreme Council of that court;

• • a member of the Committee on Religious, Cultural, Educational and Higher Education Affairs of the House of Representatives (wolesi Jirga);

• • a member of the Afghan Independent Human Rights Commission, nominated by that commission;

• • an elected representative of the media union institutions;

• • an elected representative of institutions related to civil society; and

• • a qualified representative of the Independent Bar Association of Afghanistan.

The Selection Committee chair, who is chosen by election, nominates five of the 15 people chosen by the committee to serve on the Access to Information Commission for a five-year term, taking into account the diversity of expertise and gender.Footnote ⁷³ The Access to Information Commission has the following duties: supervising the process of applicants’ access to information; examining and reviewing applicants’ complaints; requesting documents from the authorities charged with informing governmental departments, as necessary; providing the necessary advice to applicants and governmental departments; setting out minimum criteria on how to organize information by departments; evaluating reports of the authorities responsible for informing governmental departments; strengthening access to information across the country through educational programs; increasing the level of public awareness about the activities of the commission; publishing decisions of the commission for public awareness-raising purposes; supervising the implementation of the provisions of this law; approving related bills and regulations; performing other duties set out in this law; and submitting an annual report to the president and the National Assembly and publishing it. An Afghanistan Online Information Access SystemFootnote ⁷⁴ has also been established to allow citizens to make requests for information, file complaints, and follow up on information requests. People can also refer directly to the Ministry of Information and Culture or contact the Department of Historical Heritage if they suspect any violations. The Ministry of Information and Culture of Afghanistan has placed a link on the ministry’s website for the public to access financial and budget information, and copies of financial and budget documents are uploaded and made available to the public here.

However, given the vast size of the country, its multiple languages, the low rate of literacy, and the lack of access to modern communications in some remote areas, making this a reality for all Afghans has proven to be hugely challenging. In addition, the serious and ongoing threats to human security across much of the country at present and the poor track record of the Taliban in respecting ethnic and religious minorities’ rights mean that this is not likely to be a priority at present. The recent action of the Taliban in dissolving the country’s Human Rights Commission, the High Council for National Reconciliation, and the commission tasked with overseeing the Constitution is not encouraging as to how the Taliban will respond to the cultural rights of the diverse ethnicities present in the country.Footnote ⁷⁵

The allocation of funds for the protection of cultural heritage

From 2002 to 2006 following the fall of the Taliban regime, there was no specific development budget allocated to cultural heritage in Afghanistan. However, there have been a number of projects funded and/or conducted by governmental organizations and NGOs.Footnote ⁷⁶ One important example was the renovation of the Kabul Museum in 2013 (supported by the US embassy in Afghanistan and with technical assistance from) UNESCO, following the return in 2007 to the museum of a significant number of artifacts looted from AfghanistanFootnote ⁷⁷ for which the Netherlands and Japan donated new glass display cases. The Aga Khan Foundation, which began its project to restore and protect Afghanistan’s cultural heritage in partnership with the Ministry of Information and Culture in 2003, has supported and cooperated in a number of other projects for the reconstruction and restoration of historical monuments in Afghanistan,Footnote ⁷⁸ including the restoration of the Khwaja Parsa shrineFootnote ⁷⁹ (in cooperation with the German Federal Foreign office) and the Noh Gombad MosqueFootnote ⁸⁰ (with a number of local and overseas partners) in Balkh;Footnote ⁸¹ the restoration of the Babur GardenFootnote ⁸² and the conservation of the eighteenth-century ce Timur Shah mausoleum in Kabul, the latter also allowing for the training of Afghan professionals and craftsmen; and the restoration of the Ekhtiaraddin CitadelFootnote ⁸³ and Gazorgah shrineFootnote ⁸⁴ complex in Herat. A further research project was funded by the National Geographic Society at the Kharwar site in Logar Province.

Further activities have been carried out by the Italian government and UNESCO to protect Afghanistan’s cultural heritage, such as protecting the Jam Minaret from seasonal flooding and conducting an emergency restoration project to protect the Fifth Minaret in the Mosalla Complex in Herat. A UNESCO-administered project of interest was the emergency assistance for restoration of the site of Jam undertaken with the support of Swiss funds in trust. In collaboration with the Afghan Ministry of Information and Culture, UNESCO has implemented a number of safeguarding activities, including the assessment of the state of conservation and documentation of the Minaret of Jam in 2002; the construction of a new road and bridge to facilitate access to the site of Jam in 2004; masonry work at the base of the Minaret in 2005; the establishment of a protective fence around the site of Jam in order to prevent looting and vandalism in 2006; and the provision of a training session for Afghan experts in conservation techniques by international experts in 2007. As a consequence of these activities, the deterioration of this site was considerably reduced and its condition stabilized.

The World Heritage Centre resumed its on-site activities in 2010 with a three-week field mission in cooperation with the Afghan Land Consulting Organization, a local NGO, and the Ministry of Culture and Information. This resulted in the creation of a detailed topography of the archeological remains of Jam, which allows for the better protection for the Minaret and the archeological remains.Footnote ⁸⁵ UNESCO has also worked with the Italian Institute for Africa and the Orient and the Afghan authorities to rehabilitate the Museum of Pre-Islamic Art in Ghazni, with financial support from the Italian government. This project was completed in 2011.Footnote ⁸⁶

In 2006, the Afghan government allocated a small budget in the form of a development budget within the Ministry of Information and Culture. Since that time, up until 2021, there have always been budgetary allocations in the form of development budgets for the restoration and protection of cultural heritage – in particular, for historical monuments. In order to use this budget, departments related to cultural heritage and historical monuments are required to prepare a proposal in the form of a project for the restoration and/or protection of the heritage in question and submit it to the Ministry of Finance via the Ministry of Information and Culture, evaluating the cultural heritage on a case-by-case basis. If the proposal is accepted following review, the Ministry of Finance will approve the expenses requested in the form of a development budget administered by the Ministry of Information and Culture. In the implementation phase, these projects will be opened for tender, and institutions active in the field of cultural heritage and historical monuments will be selected on the basis of a free competition and become responsible for advancing the desired projects. An expert nominated by the Ministry of Information and Culture oversees all activities carried out by the institutions undertaking these projects.

Project-related departments, such as the Department of Historic Monuments Restoration, directly supervise these projects during their period of operation and provide the necessary advice and warnings in writing to the project developer. It goes without saying that the loss of international aid for Afghanistan after the Taliban regained control of the country will have a strongly negative impact on the status of the protection of the cultural heritage. In view of the fundamental role that heritage plays in cementing a sense of shared national identity (which may also be built on diversity), this is a question that will require serious consideration by the international community once humanitarian aid is again provided to Afghanistan. Not only should the protection and conservation of cultural heritage be regarded as part of the package, but its use for protecting the heritage of all of that nation’s cultural communities should be ensured.

Challenges and threats to Afghanistan’s cultural heritage

According to officials from the Afghan Ministry of Information and Culture,Footnote ⁸⁷ the outbreak of the COVID-19 pandemic, as in many other countries, has affected the activities of governmental organizations and NGOs in various sectors. Some protection and support projects were suspended for a period of time, but these activities had resumed by August 2021 in accordance with the protocols provided by the Ministry of Public Health. However, Afghanistan faces a number of underlying challenges and threats to its cultural heritage that preexisted the pandemic and continue to cause problems for its protection and viability. These challenges include the following:

• • ongoing armed conflict and lack of security, which has become much more acute since August 2021 though it was already a major issue with instability throughout much of the country in the preceding years;

• • a weak level of valuing cultural heritage and the need for its protection among ordinary people;

• • the lack of an effective policy in the field of cultural heritage protection and safeguarding;

• • the lack of funds and specialized human resources;

• • uncontrolled urban development and the lack of attention paid to cultural heritage in construction projects;

• • poverty among the population and even at the level of local and national government; and

• • looting, theft, and smuggling of cultural property.

Among these threats, without a doubt, the lack of security and the occurrence of successive armed conflicts can be considered to be the most important challenge and threat to Afghanistan’s cultural heritage. In addition, this is a threat that has not been under the control of the government and so has been extremely hard to respond to. The destruction of the infrastructure created in the field of cultural heritage, the destruction and looting of cultural heritage, and the disintegration of the tourism industry are the most important direct consequences of this armed conflict for the cultural heritage of Afghanistan. The armed conflict has not only been a threat to Afghanistan’s cultural heritage, but it has also created many other challenges and threats, including the destruction of the educational infrastructure and the cessation of the process of education at various levels (primary, secondary, and tertiary), as well as widespread poverty and illiteracy, with Afghanistan ranked 169 in the Human Development Index of countries in 2020.Footnote ⁸⁸ Various other consequences directly influenced by the conditions of conflict have emerged and negatively impacted on the cultural heritage of Afghanistan, including the low cultural level of the people, ethnic tensions, and a lack of experts in the field of cultural heritage. In fact, it is impossible to address other root causes of such a grave security situation and the loss and destruction of cultural heritage (such as the poverty and poor level of development of much of the population).

As a victim of the illicit antiquities trade, Afghanistan has experienced a steady loss of its cultural wealth as a result of war, political instability, and poverty. It is understandable that local communities, faced with extreme poverty and few other options, will turn to looting archeological artifacts as a means of raising some income. These local “subsistence diggers” then sell the objects to middle men who then pass them on to one of several criminal organizations operating along the Afghanistan-Pakistan border, using the same smuggling routes as those that also carry illegal drugs. From Pakistan, the Afghan artifacts are then generally shipped to Sharjah in the United Arab Emirates from the port of Karachi.Footnote ⁸⁹ On arrival in Europe or North America, they are sold on to further middle men or dealers and eventually reach the antiquities market. Since most of these artifacts have never legitimately seen the light of day, being the result of clandestine excavation, they can be passed off as either emanating from an old collection or, in the case of antiquities from cultures found also outside Afghanistan, as being of a different provenance.

As we have seen, in spite of the aforementioned threats and after the establishment of the new political regime in 2003–4, the process of protecting and safeguarding Afghanistan’s cultural heritage had returned to its previous path and was supported by appropriate legislation. Efforts were being made to address these issues as far as possible, though the systemic challenges facing the governments up until 2021 were so great that cultural heritage could not be a major priority. Sadly, recent changes in Afghanistan’s political administration and the Taliban’s approach toward key issues, such as the education and employment of women and girls as well as their view of the visual arts, music, and dance as sinful, have exacerbated these threats. It remains to be seen whether cultural heritage will simply face a lack of attention under the restored Taliban regime or, worse, direct attacks against elements deemed to be “un-Islamic,” as occurred under their previous regime. The following section revisits the experience from the mid-1990s and early 2000s in order to consider what we might expect and how the international community might respond.

Returning to the scene of a crime: What can we learn from experience?

In the context of the political changes in Afghanistan, we will return to the scene of one of the greatest crimes against that country’s heritage perpetrated by the Taliban in 2001 – namely, the destruction using explosives of the two monumental statues of Buddha carved in the sixth century BCE in the rocks of the Bamiyan valley in central Afghanistan.Footnote ⁹⁰ In examining this case, we will consider the international rules governing the protection of cultural heritage and the responsibilities of governments and occupying powers with regard to them. Political instability and armed conflict place cultural heritage in severe danger, and armed conflict has been one of the most serious threats to Afghanistan’s cultural heritage in recent decades, and it has done the most damage. The phenomenon of such conflict, even if not accompanied by widespread destruction of cultural heritage, has always resulted in widespread looting of cultural property and its illicit transfer, and the study of the history of the last half-century provides us with numerous examples. What distinguishes the destruction of cultural heritage from other damage caused by war is the connection of cultural heritage to nations and its lack of any connection with military objectives – hence, whenever the destruction of cultural heritage occurs during periods of conflict, it is evidence of a clear desire and intention.

The General Assembly of States Parties to UNESCO’s Convention Concerning the Protection of the World Cultural and Natural HeritageFootnote ⁹¹ passed a resolution in 2001 expressing concern over the Taliban regime’s threats against the Buddha statues in Bamiyan and calling on the Afghan authorities and the international community to provide all possible assistance for the protection of Afghanistan’s cultural and natural heritage.Footnote ⁹² Despite all the concerns expressed by UNESCO and by several governments and international organizations across the world, the Taliban forces destroyed two Buddha statues in March 2001 that were some of Afghanistan’s most important cultural treasures and, in view of their monumental character and their history, were also regarded as a heritage of importance to all humankind. The Resolution on the Protection of the Cultural Heritage of Afghanistan condemned the “wilful destruction [by the Taliban] of the cultural heritage of Afghanistan” and, in particular, the statues of Bamiyan, as a “crime against the common heritage of humanity.” Interestingly, the General Assembly also invited states parties to the World Heritage ConventionFootnote ⁹³ to “inform the World Heritage Committee, at its twenty-fifth session, on any steps they have taken to protect the cultural heritage of Afghanistan.” It is very significant that the Bamiyan statues represented the pre-Islamic Buddhist tradition of Afghanistan, and, as with the demolition of other monuments associated with a minority religious heritage, such as the destruction of the Babri Mosque in India,Footnote ⁹⁴ their demolition was also a direct attack on cultural pluralism and tolerance.

By 1994, the Taliban had exercised effective control over more than 90 percent of Afghanistan. However, the Islamic Emirate of Afghanistan that they established was not given legitimacy by the international community, being recognized only by Pakistan, Saudia Arabia, and the United Arab Emirates. Today, Afghanistan’s seat in the United Nations (UN) has not been handed over to the Taliban regime but has been retained by the former Afghan government. The country’s embassies also have remained under the control of the former government. According to Human Rights Watch, Afghanistan has lost nearly a third of its population, with about 1.5 million people killed and another 5 million emigrating abroad, and the people of Afghanistan have the lowest life expectancy in the world.Footnote ⁹⁵ Twenty years later, history seems to have repeated itself for Afghanistan, with similar levels of emigration and the performative repetition of the former Taliban approach, encompassing gender discrimination, disregard for human rights, the lack of freedom of expression, restrictions on education for women and girls, targeted killings, and so on. The UN Security Council in a resolution adopted on 31 August 2021 expressed its hope that human rights – including those of women, children, and minorities – are upheld, and it “encouraged all parties to seek an inclusive, negotiated political settlement, with the full, equal and meaningful participation of women, that responds to the desire of Afghans to sustain and build on Afghanistan’s gains over the last twenty years.”Footnote ⁹⁶

In a similar vein, the Group of Seven leaders expressed their view that

These statements are couched in terms of a hope and/or expectation that the newly re-established Taliban regime in Kabul will uphold the human rights of all Afghans, including those of ethnic minorities, and we can only hope that this is how things develop in the future. However, such statements are made in the knowledge that this may well not be the case, and evidence thus far does not encourage optimism.Footnote ⁹⁸ It is important that the value of protecting and safeguarding the country’s heritage is recognized and that this is given a prominent place among human rights priorities, in view of its potential for building a national identity that is essential for the country’s future.

Although this has heralded an unknown (and unknowable) future for the Afghan people, some more positive news is being heard, such as the Taliban’s decision to stop cultivating opium or to allow Shiite religious ceremonies to be held. Of course, these decisions appear to have been taken to reduce the group’s international isolation but that in itself may be seen as a positive. If the international community can also signal that the protection and safeguarding of the country’s cultural heritage – in particular, those objects that are associated with the country’s ethnic and religious minorities – then this might also put pressure on the Taliban regime to respect the existing legislative regime set out above.

Regardless of whether or not the Taliban is recognized as a government by the international community, it is still obliged to protect and safeguard Afghanistan’s cultural heritage according to international instruments and in order to achieve the goals of the UN. In accordance with international rules of war, the group is liable for any damage to Afghanistan’s cultural heritage during armed conflict, as stated in various articles of international treaties. In particular, Article 27 of the 1907 Hague Convention (IV) requires the parties to a conflict to avoid as far as possible the siege and/or bombing of buildings dedicated to religion, art, science, or charity and historical monuments, hospitals, and gathering places for the sick and wounded, provided that these are not used for military purposes.Footnote ⁹⁹ The principle that monuments and buildings dedicated to art and science must be safe from military violence was also addressed in the Hague Rules of Air Warfare.Footnote ¹⁰⁰ The Roirich Pact stressed the need to protect museums and buildings of scientific and cultural institutions during both armed conflict and peacetime.Footnote ¹⁰¹ These principles and regulations of humanitarian law concerning the protection of cultural property have become customary over time, and parties to armed conflicts, whether or not they are parties to the aforementioned treaties, are required to comply with their provisions. In addition, the 1954 Hague Convention considers damage to all cultural property as constituting “damage to the cultural heritage of all humankind, since each people makes its own contribution to the culture of the world” and that, since its preservation is “of great importance for all peoples of the world,” this heritage should enjoy international protection.Footnote ¹⁰² Accordingly, this treaty emphasizes the need to respect cultural property even in non-international armed conflicts.Footnote ¹⁰³ Additional Protocol II to the 1949 Geneva Conventions also prohibits any hostile action against monuments, works of art, or places of worship that constitute a cultural or spiritual heritage as well as their use in support of military actions or objectives.Footnote ¹⁰⁴ Moreover, international practice has extended the application of all the basic principles of humanitarian law originally proposed for international armed conflict to non-international conflicts such as civil wars and internal ethnic conflicts.

The prohibition on the destruction of cultural heritage during international and non-international armed conflicts has been explicitly upheld by international courts. When this action has been repeated with the necessary discriminatory intent, it is considered an example of a crime against humanity, as in the Al-Mahdi case heard by the International Criminal Court (ICC).Footnote ¹⁰⁵ According to the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY), the act in question can be considered as a form of persecution for religious reasons and, as a consequence, can be considered to be a crime against humanity.Footnote ¹⁰⁶ Similarly, the Rome Statute of International Criminal Court regards this as an international crime.Footnote ¹⁰⁷ The case law of the international courts such as we have seen in cases brought before the ICTY, the International Criminal Tribunal for Rwanda, the Extraordinary Chambers in the Courts of Cambodia, and the ICC also confirms these provisions, and an attempt has been made in practice to treat these acts as international crimes. In the most egregious cases, cultural heritage destruction during armed conflict has even been regarded as constituting the crime of genocide.Footnote ¹⁰⁸ During its investigation into the shelling of the historic city of Dubrovnik, the ICTY announced:

The fact that the Old Town of Dubrovnik had been inscribed on the World Heritage List in 1975 was presented as a relevant fact by the prosecution in this case.Footnote ¹¹⁰ This brings us to our next point: as a corollary to this, the protection of the cultural heritage is a common interest of the international community as a whole; just as its destruction is prohibited in time of war, so in peacetime its protection is an obligation of the government or regime on whose territory it is located. Although it has not yet become fully fledged in international law, this principle might be seen today as belonging to the category of erga omnes obligations – in other words, norms that create a general international obligation to act in the common interest, such as the prohibition of the use of force, the protection of fundamental human rights, or the protection of the environment against widespread destruction.

The 1972 World Heritage Convention is the strongest expression of this principle and emphasizes that the destruction of any part of the cultural and natural heritage (as defined in that treaty) will impoverish the heritage of all nations.Footnote ¹¹¹ We should mention that cultural heritage that qualifies as “world heritage” (as did the Bamiyan buddhas) does not have to be inscribed on the World Heritage List to benefit from protection under this treaty. It places a duty of recognition and protection of (world) cultural heritage on the state party on whose territory it is located as well as the duty to keep it safe for future generations.Footnote ¹¹² To this end, parties should use their resources to the maximum and seek international assistance where necessary, especially financial, artistic, scientific, and technical assistance. The World Heritage Convention explicitly places a number of positive obligations on states parties in order to protect and recognize their (world) cultural heritage, which includes: adopting a national policy to ensure the function of this heritage in society, including its protection in the general planning of the country; establishing (where needed) one or more agencies for this purpose and ensuring appropriate staffing and resources; and taking legislative, scientific, technical, administrative, and financial measures to identify, protect, preserve, recognize, and restore this heritage. The legislative regime for the protection of cultural heritage established under Afghanistan’s Cultural Heritage Law and associated regulations responds well to these requirements set out in the World Heritage Convention. The question is whether the Taliban regime will honor these commitments to the people of Afghanistan and to the wider international community, obligations that are placed on them by humanitarian law and human rights, as expressed through the law for the protection of cultural heritage in time of peace.