Legal Matters: Legal Education in Afghanistan and the Return of Taliban Rule

A Conversation About Stanford’s Afghanistan Legal Education Project and its Work With the American University of Afghanistan

The story of the post-9/11 U.S.-led invasion and occupation of Afghanistan is sure to have revisionists aplenty. But from one telling, something very special happened during a brief window—an opening up of minds and hearts, spurred on by the simple idea that education, equality, and law must be priorities for the war-torn country to rebuild.

Legal Matters: Legal Education in Afghanistan and the Return of Taliban Rule

And so it began—an audacious enterprise that, in 2006, introduced Afghanistan to liberal education with the launch of the American University of Afghanistan (AUAF) in Kabul and, in 2007, a legal program designed and fostered through a collaboration with Stanford Law School’s new Afghanistan Legal Education Project (ALEP).

That collaboration was typical Stanford serendipity. Stanford Law students were looking for a way to help in Afghanistan. They were put in touch with Stanford’s Vice President and General Counsel Debra Zumwalt, JD ’79, who happened to be on the board of the nascent AUAF. The students soon found their way to Erik Jensen, director of Stanford’s Rule of Law Program and an expert in the development of law in post-conflict countries, who agreed to help. And ALEP was founded.

According to Jensen, who has directed ALEP since its beginning, there were no schools in Afghanistan that adequately trained students to be legal practitioners. Most courses were almost entirely theoretical. What’s more, the country’s law schools—each divided into faculties that taught either Sharia law or a combination of civil law and political science—had outdated curricula that overlooked such developments as the 2004 Constitution of Afghanistan. Complicating this was a scarcity of materials both printed and online, from judicial decisions to basic textbooks.

Fifteen years on, ALEP, in collaboration with faculty and students in the law program at AUAF, has published eight textbooks about Afghan law for Afghan audiences —with another four forthcoming. Since 2009, ALEP has received a series of grants from the U.S. Department of State to help it continue its textbook-writing capabilities and support the bachelor of arts and law degree program at AUAF.

With the return of the Taliban in August 2021, schools have closed, women have been forced back inside, and people at the forefront of education are fearful. Will liberal co-education end, and the participation of women in society come to a screeching halt? Can the genie be put back into the bottle, stifling the intellectual blossoming of hundreds of Afghan people?

In a discussion with Stanford Lawyer, Jensen and Zumwalt, both of whom serve on the AUAF board, join Nasiruddin Nezaami, chair of the law department and a law professor at the AUAF, and Gharsanay Amin, a graduate of the AUAF law program who went on to the Monterey Institute master’s program in public administration, financial crime, and management and now works in the field of intelligence and international security. Together they weigh in on the current situation in Kabul, the future of the law program at AUAF, ALEP, how students and faculty at the university are coping, and what’s next for the Sharon Driscoll

SHARON DRISCOLL: What sets the AUAF law program apart?

ERIK JENSEN: It’s a unique legal curriculum at AUAF. The general public perception internationally is that Islamic law is bad and secular law is good. But our curriculum integrates Islamic law into the curriculum because wide swathes of family law, inheritance law, property law, and other subjects, include Islamic legal content. Anyone who’s trained in law in Afghanistan will be expected to deal with principles of both Islamic and secular law. We found the realities on the ground required this. 

NASIRUDDIN NEZAAMI: The AUAF law program is the only one in Afghanistan offering liberal arts education. It has a balance of  theoretical and practical studies. We were the first law school in the country to teach legal writing and professional responsibility as foundation courses in our degree plan. Islamic law stands at the core of legal education and practice of law in Afghanistan. If we don’t give this balanced perspective, and we don’t show the reality of Islamic law, we give groups such as the Taliban and al Qaeda space to teach and propagate their own interpretation of the Sharia law, which is of course not good. We teach subjects that are based on Sharia law, such as family law and inheritance law, and within that we teach the comparative analysis of both Sharia law and statutory law here in Afghanistan. We let students know that there are different interpretations of Sharia, and we discuss some of those interpretations in class, including ones that groups such as the Taliban here in Afghanistan and other extremist groups have unfortunately misused.

JENSEN: There’s a major battle for the soul of Islam going on, and if people with open minds don’t engage in that, the gravity of power will shift to those who have the most conservative, restrictive ideas of Islam.

DRISCOLL: Would it have been possible for a woman in Afghanistan to get a law degree twenty years ago?

DEBRA ZUMWALT: Not until after the Taliban fell.

“There’s a major battle for the soul of Islam going on, and if people with open minds don’t engage in that, the gravity of power will shift to those who have the most conservative, restrictive ideas of Islam.”

Erik Jensen, director of the Rule of Law Program at Stanford Law School

DRISCOLL: Can you talk about the role that ALEP and AUAF played in the opening up of Kabul society? 

JENSEN: AUAF was established in 2006 with the mission of bringing American-style co-education for men and women to Afghanistan and co-education at AUAF is very natural when you go onto the campus. You have men and women mixing and talking with each other, studying together, taking classes together, sitting in a mixed group in the classroom—not men on one side and women on the other side, as it was before the Taliban fell and continued to be at many schools and universities. And the enrollment of women in the legal program, which ALEP helped to design and launch, has really taken off. I think right now about 55 to 60 percent of the class is women. And historically, if I’m not mistaken, over the life of the program is around 40 percent.

GHARSANAY AMIN: I had co-ed education back in Nangarhar Province with male classmates, but it was very separate. And I had a lot of anxiety engaging with those men. Still, talking to men at AUAF could be challenging for me because of the different value systems. However, the institutional structures that were put in place by AUAF were very strong and empowering, and I never felt that I, as a woman, couldn’t do something. I agree with what Erik said—that it was very natural at AUAF, because the environment was supportive and welcoming.

ZUMWALT: If I can just jump in to share one of my favorite conversations with a student during a visit to AUAF. She was the president of the student government. When asked about why she decided to run for the student government, she replied that she wasn’t thinking of running until two of her male classmates told her that they thought she’d be a great student body president and they would support her if she ran. She said, “I never thought I would live to see the day in Afghanistan where something like this would happen.”

NEZAAMI: I agree. And being in Kabul is also easier than what public and private universities in provinces such as Kunduz and Kandahar, where the society is more conservative, might face. At the same time, I think one of the important aspects of AUAF is you have more diversity—we have more diverse students from different backgrounds and different provinces compared to any other higher education institution in Afghanistan.

Legal Matters: Legal Education in Afghanistan and the Return of Taliban Rule 3
ALEP Members in 2007: Ben Joseloff, JD ’08, Eli Sugarman, JD ’09, Alice Stephens, JD ’09, Jason Berg, JD ’08, Alexander Benard, JD ’08 (photo courtesy Stanford Law School)

JENSEN: AUAF received U.S. government funding to recruit students from every province in the country. So that’s why we were able to diversify our student body in ways that other universities in the country have not.

NEZAAMI: And, as Erik said, in recent years a majority of law students in each class has been female. Specifically, for the past four or five years, I think it’s between 55 to 60 percent female. And these women are achieving a lot. AUAF law students have been the only team representing Afghanistan in Nuremberg and ICC Moot Court competitions. This year, AUAF law students were the only team representing Afghanistan in John H. Jackson (WTO) Moot Court competitions. But the majority of students participating in the international moot courts—such as the Jessup International Law Moot Court Competition, the Nuremberg Moot Court, and the ICC Moot Court—have been female. And, as Debra mentioned, the law student association for the past two terms has been mostly female students, including the president and the vice president. And the majority of students who found ways to pursue their higher education or who received Fulbright scholarships have been female students.

DRISCOLL: Have the graduates, women in particular, been successful in their careers?

AMIN: Some of my classmates are with law firms or getting their master’s degree or serving in international corporations or other entities such as NGOs.

After I graduated from AUAF, I worked in the government—and I was the first woman to take on the role. Sometimes, I was the only woman out there among all these men, but I felt that the support that I got in the network that I had with the AUAF empowered me. Right now, I am pursuing a career in intelligence and international security focusing on money laundering in terrorist financing and proliferation. I’m not limiting myself to Afghanistan but trying to see where I can best fit in the world. I think that that’s also what AUAF has taught me—to think beyond those boundaries and those territorial limitations. Afghanistan is a focus for me. But AUAF opened doors for students to think globally and find themselves in international spaces.  

DRISCOLL: What’s happening with the Taliban back in power?

JENSEN: We do have people formally tracking who’s in the country, and where they are and how they’re doing. We’re working on paperwork to help those who wish to leave the country to be able to do so.

ZUMWALT: I think it’s fair to say that a number of our students and alumni, and our faculty and staff, are already outside of Afghanistan. And for those who want to leave, the U.S. government agreed that certain visas would be available, not just to our employees, who typically get the Special Immigrant Visas, and not only for our students and our faculty and staff, but also for our alums because they are at risk.

DRISCOLL: Are classes continuing?

JENSEN: Everything is virtual and has been for a while because of COVID. But we actually learned how to do virtual education, by necessity, when the campus was attacked by the Taliban in 2016. I believe that 80 percent of our law students are currently continuing their legal education online—after the fall of Kabul.

ZUMWALT: That’s right. We are continuing our entire curriculum right now and most of the students that are actually in Afghanistan, also some of our students who are elsewhere in the world, are  continuing the courses.

DRISCOLL: What’s next for the AUAF law program?

ZUMWALT: I can speak to plans for AUAF, which of course includes the legal program. We had a fundraising event in D.C. and the Qatari ambassador was there, and there was an announcement made that they have committed to providing free education for 100 of our women students, as a first cohort. And they will provide space and supplies for us in Qatar to continue to operate. We have also been busy finding programs for our students. We relocated some students to American University of Central Asia and American University of Iraq in Sulaymaniyah, Kurdistan. And here in the U.S., Bard College has offered to take 100 of our students as well, when they can get to the U.S., for free. It’s heartwarming how many people are stepping up to help our students. Our goal is not just to get our students out if they want to leave, but to have them continue their education

DRISCOLL: Are women and men allowed to study law during this new Taliban rule?

JENSEN: Women have not been invited back to university. Men have been invited back, but not women. And this is a fairly consistent signal from the Taliban. The discussions that go on in Doha with the Taliban show them saying all the right things about women’s rights and the like, but when you get into implementation on the ground in Afghanistan it’s a different story. The Taliban promised that women will eventually be invited back. We’ll see.

ZUMWALT: They say that they don’t want to let them back at school until it’s safe. But, of course, before the Taliban came, it was perfectly safe for women to be at AUAF.

Legal Matters: Legal Education in Afghanistan and the Return of Taliban Rule 2
ALEP team meets with former Afghanistan chief justice (seen here with ALEP faculty advisor Erik Jensen on the right) (photo by Daniel Lewis)

NEZAAMI: The Ministry of Education has made a very clear public announcement that women and men will not be allowed to sit in the same classroom. And there was a directive, an official letter, sent to all private universities in Afghanistan, specifically asserting that first, men and women are not allowed to study in one class. Also, a male professor is not allowed to teach female classes, and a female professor is not allowed to teach male classes. Practically, it’s only AUAF that’s continuing with education now. And it’s the only institution that’s still teaching male and female students in one class.

DRISCOLL: Do you think it’s possible to turn back the clock on the advancements Afghan women have made?

NEZAAMI: I see it as less possible for the Taliban to control and to implement the rules today that they implemented 20 years ago. Of course, back then, when the Taliban first came to power, females didn’t go to the university or to schools for the most part—we didn’t have that opening up yet. So that environment made it much more feasible for the Taliban to implement those oppressive rules.

But 2021 is so different. In the first days that the Taliban came to power, we witnessed female students—women in different provinces and even in Kabul—demonstrating and asking for their rights. Technology is another area that the Taliban has not been able to control, and I don’t think they’re going to be able to control a lot of social media, which has been used by civil rights activists and by women here in Afghanistan. There are many demands for rights by those who work for the government, and at universities—and by female professors. I believe if they are going to attempt more limitations, it is going to cost them a lot. They will need to soften some of the limitations that they plan to implement especially in cities such as Kabul, Mazar, Herat, and Kandahar. I’m concerned about the more remote areas, and the majority of provinces, where I think females will not be able to safely demand their rights and they will not be permitted to pursue higher education.

AMIN: I think that it’s very important for us to be optimistic at this time and to take action. We have a lot of agency in defining how the future of Afghanistan can look. And we are not letting anyone, especially extremist groups, define how these women should be living their lives. We need to remember how the very strong women and men at AUAF went back to school right after the attack of 2016. We saw such resilience and strength. We see a lot of motivation out there in this generation, and it’s not just only in Afghanistan but throughout the world. I do not believe that the current situation will remain for a long time if we as advocates, as women’s right activists, as people who believe in human rights, advocate for these rights. Women in Afghanistan right now are very different. Afghan women are connected—they are empowered, they are advocating for each other. And with that connectivity to the world—Afghan women are not going back to the old days with the Taliban, to letting men decide for them. I think if we—all of us—let an extremist group like the Taliban decide for women, it will affect women not just in Afghanistan but everywhere in the world. So, it’s very important to be optimistic, and follow that up with clear, concise, actionable steps.

ZUMWALT: Gharsanay is right. Our students, and so much of the population of Afghanistan is very young, are very tech savvy and connected to the rest of the world.

When the Taliban attacked the AUAF campus in 2016 and 13 of our people were killed, and many, many were injured, and our campus was badly damaged, we really considered not reopening because we knew we would always be a target of the Taliban and we didn’t want to put people at risk. But our students came to us and said, ‘Our friends died in this attack, many of us were injured, but we’re willing to die for the opportunity to have this education.’ So, of course, we did reopen, and the students came up with this motto and there was a mural on our campus that said ‘Education will prevail.’ I think it reflects the resilience, and the deep desire of the people of Afghanistan to have a better life, and to have more freedom, and to take matters into their own hands.

“There was a brain drain from Afghanistan when the Taliban was in power the first time. That was one of the reasons AUAF was started—there was this great need to have educated people stay in the country. Now history is repeating itself.”

Debra Zumwalt, JD ’79, general counsel of Stanford University

DRISCOLL: What can be done to help Afghanistan maintain some of the progress it has made?

JENSEN: If there isn’t humanitarian assistance—and some humanitarian assistance is coming into the country—there will be starvation. There will be serious devastation of Afghans across the country. The Taliban government is seeking international recognition, and I’ve advocated that we should make sure that international recognition is conditioned upon certain treatment of women and modes of governance. A big concern is that the assistance that’s coming through Pakistan from Saudi Arabia and from China to secure access to mineral rights will negate a barrier of international recognition—and the Taliban will take these other sources of assistance that are not tied to human rights.

ZUMWALT: I do think absolutely the international community has a role to play in keeping a spotlight on what’s going on in Afghanistan. And I do think the world has to provide humanitarian aid. There are billions of dollars of Afghans’ assets that were in the U.S., being invested in the U.S., and so I do think that might give us some leverage if we choose to use it, in terms of releasing those funds. But if other people, for instance, the Chinese, step up and give them the money, the Taliban may not care that much about formal recognition from the U.S. and other Western countries. I am worried that the western world doesn’t really have the stomach to get involved in fighting in Afghanistan anymore. I hope that people don’t lose focus on what’s going on in Afghanistan. Because the people there need our help.

AMIN: If we are to focus on what we can do, it’s sanctions—that is something that we here in the U.S. have control over. The Taliban does not want to be sanctioned.

JENSEN: I’m not very optimistic when I look at Venezuela. I see U.S. sanctions on Venezuela and yet Venezuela is open for business to China and Russia.

ZUMWALT: And that’s what I’m afraid of in Afghanistan as well.

Legal Matters: Legal Education in Afghanistan and the Return of Taliban Rule 1
A sign welcomes visitors to Kabul International Airport (photo by Daniel Lewis)

DRISCOLL: What has ALEP, and American style education at AUAF, meant to the people of Afghanistan?

ZUMWALT: When Erik and the students at Stanford Law School launched ALEP and the collaboration with AUAF in 2007, they started with a legal textbook—a treatise—on Afghan law and the new constitution. There hadn’t been one in Afghanistan. So, you did this, and eventually got it translated into both Dari and Pashto, you were overwhelmed with requests for copies of it. The U.S. military wanted it! Afghan government ministries, they wanted it because they didn’t have an easy way to understand what all the new laws were. The rule of law is so important in a country, particularly one coming out of war—to give stability, to allow economic benefits to flow and companies to come in. Having a greater understanding of what the laws are in Afghanistan was important. And these textbooks were also used as the basis for teaching classes at other universities in Afghanistan. But businesses were particularly pleased that the ministries wanted to know what the laws that would be followed were—it showed an adherence to law. That was huge. And, of course, all the many other texts you’ve done have provided the tools for our legal education program but also for the society as a whole.

JENSEN: We had space to do something special in Afghanistan, and we took it. And we have had a positive impact on a generation of young people. I hope that they can return to Afghanistan and create possibilities for the next generation of Afghans who want to imagine a different future for their country.

AMIN: That’s what we need in Afghanistan right now. The law program had such a big impact on me. It taught me to think critically and to observe, and then define what is right and what is wrong for me, from my perspective, from my own worldview. It made me more confident and equipped me with skills like analysis, public speaking, and networking. And to be competitive. And I learned so much from engaging with people from other universities all over the world.

NEZAAMI: What makes the AUAF law program different from other programs in Afghanistan is the liberal arts education that we offer, and the fact that we have graduating students with global mindsets, with an international understanding of the law. And our focus on comparative law is very important. I’d say all universities in Afghanistan really focus on Afghan laws only, and the AUAF law program is the only program that teaches students and prepares students both for national and international careers. We don’t want Afghanistan to face the same challenge that it faced in 2001, 2002, 2003—when we didn’t have enough educated people, particularly people educated in the law. If we had graduates from AUAF back then, I don’t think we would have faced the severe challenges we had with laws that were drafted and ratified back in 2001, 2002, 2003. I think we must continue this mission, to prepare the new generation for a bright future of the country.

DRISCOLL: Hopefully the Taliban will see how much it needs these bright, educated people.

ZUMWALT: There was a brain drain from Afghanistan when the Taliban was in power the first time around. That was one of the reasons AUAF was started—because there was this great need to have educated people to stay in the country, to make it a better place. And now history’s repeating itself.

JENSEN: If pressure on the Taliban does succeed, and there is a commitment to education and rule of law, we may have reason to hope. I was on a call recently with Ian Bickford, president of AUAF. He was at AUIS in Kurdistan visiting our 109 AUAF students there. He shared that he heard from the students that almost all of them would like to return to Afghanistan if circumstances change. He was surprised, so am I. In the meantime, we’re going to try to get legal status for our students who are stateless or in Afghanistan and at high risk. The majority of our students are out of Afghanistan, but we still have much work to do. SL