The Seat is Empty: Who is Accountable for IHRL and IHL in Afghanistan?

February 21, 2023 Guest Writer Commentary 0

IHRL and IHL in Afghanistan by Christian Jepsen.

By Christian Jepsen.

The Taliban’s military conquest of Afghanistan has not made the country any more stable or governable, nor earned it international recognition. This has complicated legal accountability for the many conflicts taking place within Afghanistan. A case in point is the Taliban’s struggle against the National Resistance Front (NRF). Who, if anyone, is accountable for human rights in the conflict between the Taliban and the NRF, and in what way? This question needs to be answered from two angles – international human rights law (IHRL), international law governing human rights in general, and international humanitarian law (IHL), which governs conduct of actors in wartime.

Categorizing the Taliban & NRF under IHRL

Under International Human Rights Law the Taliban’s status, and by extension the applicability of the law to it, is unclear. It is dealt with as the de facto government of Afghanistan by the U.N. and its members, since it is the only entity in the country that could be argued to be a governmental authority given its control over the territory, population, and government institutions of that country. However, no one has publicly recognized it as the legitimate government (although six nations, including Russia and China, have accredited Taliban diplomats on their soil as of this writing)[1]. IHRL only binds states, creating a paradox for other countries and their institutions – if the Taliban are prosecuted for IHRL violations, they are recognized as a state, which would go against the desire to not grant them legitimacy[2].

The National Resistance Front is mostly comprised of former Islamic Republic of Afghanistan soldiers, and is one of two major resistance groups to the Taliban in Afghanistan, the other being the Islamic State in Khorasan. Unlike the Taliban, it does not seek necessarily to become the government of Afghanistan, and recognizes it is unlikely to take control of the country. The NRF draws heavily from Afghanistan’s Tajik minority and operates freely within the country of Tajikistan, although it is not armed by it[3]. Therefore, its ambiguity under IHRL is even greater, and it may not be bound to it at all.

Possible Violations by Both

A violation of IHRL by the Taliban that would be hard to prosecute because of this would be its systematic execution of ethnic Tajiks and erasure of their culture. One of the chief sources of NRF fighters is the ethnic Tajik minority; since returning to power, the Taliban have conducted massacres of Tajik men and forbidden the Tajik language.[4] Under the Rome Statute, the targeting of a group for state violence because of its identity in this case would be prima facie genocide. However, without formal recognition as a government, the Taliban legally cannot be prosecuted for the crime of genocide under human rights law.

Categorizing the Taliban & NRF Under IHL

Unlike IHRL, international humanitarian law applies to state and non-state combatants alike. Accountability under international law would follow through the Hague Regulations and the International Criminal Court. Under the Genva Conventions, the Taliban and other combatants can be referred to for prosecution by the ICC by state signatories, regardless of whether or not the Taliban acknowledges the court’s jurisdiction, and does not require the diplomatic recognition of the Taliban government by any state parties[5]. Although this does not guarantee swift justice for victims of its crimes, it does give other state parties the legal power to sanction Taliban leaders and other war criminals in Afghanistan and to arrest them in the future.

As a result, the Taliban’s ambiguous status as the de facto government of Afghanistan is moot. The Taliban’s members, soldiers, and leaders are all prosecutable for the crimes they commit in combat. For example, the deliberate targeting of Tajiks by the Taliban could be prosecutable by the international community under the Rome Statute as genocide. At the same time, the NRF is also prosecutable for violations of IHRL. Whatever sympathy the international community may have for its cause, it must adhere to international law in combating the Taliban. Among other responsibilities under the law, it must treat prisoners of war with respect, use proportionate force, and must not target civilians who may sympathize with the Taliban.

Conclusions & Recommendations

For U.N. Member states

Members of the U.N. are understandably hesitant to involve themselves at all in Afghanistan’s current troubles. There is no imminent threat of another 9/11 scale terror attack, and its security problems have spilled over to few countries aside from its immediate neighbors. Although none formally recognize it, most have settled in for the diplomatic ambiguity of the de facto regime. However, concerns persist as to how to categorize the victims of the Taliban and other Afghan armed groups under international law, and how (or even whether to) engage with resistance to the Taliban. In the short term, this paper recommends prioritizing violations of IHL, which will be easier to prosecute. Also monitor the applicability of prosecuting the Taliban under IHRL in the long run if it gains more recognition abroad.

For the U.N. and other IGOs

The U.N. and other IGOs have adopted a pragmatic stance of working with the Taliban to solve short-term problems, such as hunger and medical aid without recognizing its government. This is likely one of the best short-term strategies the U.N. and other IGOs have, but here is what they can and should do in the future: First, they should not waiver in their commitment to monitoring and reporting on human rights abuses by the de facto authorities. Their on the ground observations are an invaluable opportunity to build legal cases against the Taliban and other illegitimate forces in that country. They can and should create clear rosters of local authorities, monitor military and terrorist activities in Afghanistan, and chronicle war crimes committed during them. Second, the U.N. can use this knowledge to inform its member states of international crimes committed in Afghanistan, and of the power they have to prosecute their perpetrators. They can work with member states to monitor on the ground conditions, to inform U.N. Resolutions pertaining to Afghanistan, and to inform bodies such as the International Criminal Court empowered to prosecute IHL.

For NGOs and others operating in Afghanistan

NGOs will have the least amount of power in Afghanistan, de jure and de facto, compared to other actors. With these constraints in mind, NGOs and other groups of private citizens operating in Afghanistan should pursue the following policies: Like the U.N., they should endeavor to gather as much information on international law violations as possible. They can also work to educate Afghans of their legal rights under international law, both under IHRL and IHL, so that they may bring cases against those who have wronged them.

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Endnotes

[1] https://www.straitstimes.com/asia/south-asia/uncertainty-looms-for-afghan-diplomats-in-overseas-missions-appointed-before-taliban-regime

[2] https://www.ohchr.org/sites/default/files/Documents/Publications/HR_in_armed_conflict.pdf

[3] https://www.stimson.org/2022/afghanistan-under-the-taliban-findings-on-the-current-situation/

[4] https://www.washingtonexaminer.com/opinion/taliban-execute-tajiks-during-searches

[5] https://www.ohchr.org/en/instruments-mechanisms/instruments/rome-statute-international-criminal-court

Bibliography

Author

Christian Jepsen is a member of the Fletcher Afghan Evacuation and Resettlement Working Group. He is a graduate of Northeastern University and Tufts University – Fletcher School of Law and Diplomacy.