Written by: Averroes
(1.0) Introduction
(1.1) Brief History
On December 1979, Babrak Kamal was the frontal man in modernising and secularising Afghanistan as he was supported by the Soviet Union. However, at that particular date, the mujahideen rose and dissented against such transition. They wanted to maintain the purity and sacred position of Islam from degradation of secularism and westernisation. It all soon brewed into a civil war and a jihad (holy war) against the Soviets.
Despite the mujahideen managing to assert dominance and ousted the Soviets in 1989 and initiated peace negotiations in the United Nations, they waged war among themselves. Now, it was a intra-mujahideen war.
The anarchy that swarmed the nation, caused severe issues, among which are robberies, plundering, road fees, poppy cultivation and drug-trafficking. Local tribes and their leaders kept rebelling and exacerbated the situation.
Amongst the chaos, another force emerged which they claim themselves as the Taliban. They managed to capture important cities such as Herat (1995), Kabul (1996) and Mazar-e Sharif (1997). Only in 1996, the Taliban proclaimed the founder, Mullah Mohammed Omar as the leader of all of Afghanistan. 90% of the nation was under their command.
(1.2) Taliban Legal System
After assuming into power, they reorganised the country. The country was renamed to "The Islamic Emirate of Afghanistan". A six member Provisional Ruling Council was founded, led by Mullah Mohammad Rabbani.
Afterwards, several shuras (consultative bodies) were formed. Among the shuras, there was a 'central shura' (10 members), which other shuras were directly responsible to. The other shuras include the 'cabinet shura' (located in Kabul) and the 'military shura'. The central shura was located in Kandahar which became the new capital of the Emirate.
The Taliban made efforts to unify the country by instituting severl provincial governors and administrators of districts, cities and towns from the centre. The Taliban also insisted on coercing a very strict interpretation of Islamic law, which included the complete ban of female education and employment. Meanwhile, music, television and photographs were banned too.
(1.3) Fall of Taliban
In 2001, the Taliban collapsed after the US invasion. It began with aerial strikes, followed by a ground offensive, nicknamed (Enduring Freedom). On 4th January, a new Constitution was adopted, which sets the stage for national elections. However, 23 years of internal warfare from the warlords, mujahideen and Taliban results in the 'rule of gun' rather than the 'rule of law'.
The US-led military operation defeated the Taliban by fall of 2001. Subsequently, the Agreement on Provisional Arrangements in Afghanistan Pending Re-establishment of Permanent Institutions (Bonn Agreement) was signed by the representatives of the Afghan people.
The Bonn Agreement paved way for a transition into a democratic government. An Interim Afghan Authority was established, while employing the 1964 Constitution before the 2003 Constitution. It brought many reforms to the courts, judges, laws, police force and prosecution.
(1.4) Revival of the Taliban
According to estimate, the Taliban earned around $460 million from opium poppy cultivation in 2020. The Taliban levies taxes on commercial activities in their territories, through farming and mining. Money is also generated from border crossings, despite UN sanctions. This money might have been their source to continue war efforts.
This year 15th August 2021, the Taliban managed to capture Kabul and most of the provinces in Afghanistan. They entered the Presidential Palace, as President Ashraf Gani fled away in a rapid advance. They even televised themselves in the Palace as men carried weapons.
Mullah Abdul Ghani Baradar, the Taliban's deputy commander and chief negotiator wanted to build "an open, inclusive Islamic government." Who will become president is to be decided by shura consultation among the Taliban top leadership. The passing of power were said to be conducted by the previous government to the victors.
Despite their reassurances, the people of Afghanistan are still afraid that the Taliban would revert back to the days of 1996-2001 again. Punishments of stoning, whipping and hanging were feared to be reinstalled. The practice of banning women from schools, universities and leaving the house without a male escort may become prevalent, as some regions in controlled by the Taliban before the fall of Kabul were already enforced.
Later, many people crowded the Kabul airport to escape the Taliban as they could hear gunshots. People were screaming and crying. This would be the rise of the Taliban again and the Islamic Emirate of Afghanistan. This leaves us to their validity and position in the world on an international law aspect, which we will dissolve.
(2.0) Recognition by International Law
To understand the laws pertaining to country's recognition, there is a difference between recognition of 'state' and 'government'. We are focusing on the latter, because it concerns the recognition of government which transitioned under Islamic law. They may have changed their name, but it is the same country, but with different people ruling.
Recognition is important, as when accepted, they become part of the international community. They are bound by international law, may enter into diplomatic relations and enter engage into international agreements.
In contrast, non-recognition results in the legislative, administrative and judicial powers to be regarded as invalid. They are refused jurisdictional immunities and could not appear in foreign courts as plaintiffs.
(2.1) Criteria to Recognise a Government
There are a number of criteria to recognise a government, among which are as follows;
i) There must be effective control. The administering government would have to, to a certain degree control a large part of the territory and one which is reinforced.
ii) If the majority of the population supports the government. If such, they deserve the recognition.
iii) This criteria may be disputed, but to also have effective control, the government must have been admitted democratically through elections. If the power acceded into the government is by way of brute or frenzied manner, then recognition 'may' be denied.
However, according to Lauterpacht, revolutions to alter constitutional frameworks within a state does not necessarily reject recognition.
iv) The readiness to comply with International Law. The Second Special Inter-American Conference 1965 recommended that, recognising a de facto government would have to be based on their readiness or willingness to fulfill their international obligations. Though, that may sound based on the 'state' obligation, not the 'government'.
Arguably, we could say that the Taliban has now become the new government of Afghanistan, but since the world is of different ideologies and have their own interests, some countries may not recognise them as the legitimate government, based on either one of the criteria being not fulfilled.
(2.2) Rebutting recognition
Many countries are opposing to recognise the Taliban government, as they failed in the fourth criteria (specified above) which is international obligations. Especially, the United States (US) are on the pedestal of the opposition.
The US would grant more recognition, if the Taliban (in the past) were to surrender Osama bin Laden and keep fighting against terrorism. Moreover if the Taliban were to cease violation of human rights by respecting women, non-recognition may be relaxed, or even revoked.
Several UN resolutions for example are impinged by the Taliban, for instances, A/RES/49/60, concerns the measures to eliminate international terrorism. It is not confined to States refraining from terrorist activities, but to also refrain from encouraging terrorist activities within and externally of their territories.
Hence, they have not fulfilled the fourth criteria which is to have due respect and appreciation of international law and human rights instruments. Failure to respect international law devoids them of governmental recognition of other countries, especially the following conventions that the Taliban impinged and which the former Afghanistan government ratified;
i) Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment
ii) Convention on the Rights of the Child
iii) Convention on the Elimination of All Forms of Discrimination against Women
The paramount refusal of the US to accede to recognition was the 11th September attack in 2001, which caused a global debacle. Similarly, other countries do not recognise the Taliban government, as Russia criticised them for their recognition of Chechnya and potential sphering of Turkeminstan, Uzbekistan and Tajikistan.
China with the Uighurs in Sinkiang and Iran with their share of concerns, if the Sunnis in their country are influenced by the Taliban to stage an uprising. In essence, the Taliban is regarded to be illegitimate by most major powers and that the previous governments before them were in exile.
(3.0) Taliban a party to an internal conflict or de facto regime?
Even if the Taliban is not a legitimate government, they may be liable for recognition as insurgents or belligerents internally. Recognition of belligerency dates way back to even before World War 1. The purpose of this recognition is to enable the laws of war and the rules of humanitarian law in internal armed conflicts toward them.
Recognition as a belligerent may be made explicitly or implicitly by other countries. There may be implicit recognition through resolution of S/RES/1333 adopted under Chapter VII states, "responsibility of the Taliban for the well-being of the population in the areas of Afghanistan under its control." The word 'under its control' suggests recognition of a belligerent.
When recognised, they have a unique legal position, which they are then bound by international laws, rights and duties. As a belligerent, the laws of inter-state war are introduced to an internal conflict.
On the question of de facto regime (or government), they may have rights, statuses and duties with effective control by controlling a large portion of the country and are independent. However, they are not recognised as either a new state or government.
Article 2(4) of the UN Charter applies to them as a de facto regime, as they have the right not to become the target of force. However, this provision only applies if the regime is a peaceful one, not in a a show of force. Also, a country could retaliate and fight the Taliban based on article 51 of the UN Charter, which permits 'self-defence'.
The General Assembly (GA) defines aggression as, "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State." Even though, the GA defines aggression must come from a State, article 51 of the UN Charter does not expressly mention that it must only be from a State.
It can be attacks or aggression from organised and private individuals such as the Taliban, but it is limited that in the sense, self-defence is only justified, if unless the acts of terrorism is of a large scale, then they are considered to be an armed attack and may be retaliated.
The Taliban could be bound or attributable to the al-Qaeda (non-state actor), if an armed attack were to occur, pursuant to article 9 of the ILC rules on State responsibility 2001. There are three elements to be proven;
i) Conduct must effectively relate to the exercise of elements of governmental authority
ii) Conduct must have been carried out in the absence or default of the official authorities
iii) Circumstances must have been such as to call for the exercise of those elements of authority
From here, since the Taliban (assuming they are a legitimate de facto government) did not do anything to stop al-Qaeda (their absence) from the 11th September 2001 attack, the US could use this as legal basis for self-defence. The Taliban and the whole of Afghanistan could be attacked by other countries on the notion of self-defence if they were to commit any armed conflict in the near future.
(3.1) The Geneva Conventions and their protocols
We could argue that other states do not have to recognise the Taliban as a belligerent, because under common article 3 of all the four Geneva Conventions 1949 contains minimum rules applicable to all persons taking no active part in hostilities in an armed conflict not of an international character and thus provide some protection.
The Taliban as a non-state actor would also fall under that provision of common article 3. In ICTY, Prosecutor v. Tadic, para. 70., there are two criteria to be satisfied.
i) There must be a state of protracted war
ii) The non-state actor possess a certain level of organisation to be party to the conflict under international law
From those two criteria, the country has been ravaged for so long in war and that the Taliban has a well organised body. Moreover, Nicaragua v. United States of America confirms that non-state actors fit within the definition, even when it is not of an international character. Hence, the Taliban would have to abide by International Humanitarian Law (IHL).
Similarly, the Additional Protocol II could be applied to the Taliban. Both Common Article 3 and Additional Protocol II is only for 'armed conflict' not for any internal disturbances, such as tensions, riots, isolated and sporadic acts of violence and other acts of similar nature.
Article 3 of the Additional Protocol II introduces three cumulative conditions for the Taliban to be bound by this law.
i) Organised armed groups must be under responsible command
ii) Must exercise such control over a part of the national territory
iii) Enable them to carry out sustained and concerted military operations
iv) Territorial control must be such as to enable to them to able to implement the Protocol
In totality, the Taliban would have to strengthen the fundamental guarantees by all persons in the hostilities, including children and their education, providing judicial guarantees for those prosecuted in an armed conflict, prohibit attacks on the civilian population, objects to civilian survival, works and installations containing dangerous forces, cultural objects, place of worship.
Also, regulate forced civilian movements and protect religious personnel and all medical personnel, units and means of transport, whether civilian or military. Therefore, the rules for the Taliban is not as extensive in the Additional Protocol I.
Article 4 of the Third Geneva Convention relative to the Treatment of Prisoners of War identifies several groups of persons, falling into the hands of the enemy are determined prisoners of war. It was argued by some commentators, since the Taliban forces do not have international recognition, they do not have the status of prisoners of war.
Even if they are the de facto government, the soldiers under the regular force and the al-Qaeda still could not be afforded with the prisoner of war status, as they are illegal combatants or militias and have not fought in accordance with the laws and customs of war. Thus, they would be prosecuted according to the national law of the detaining country or power.
(4.0) Conclusion
In conclusion, there are several legal viewpoints to be applied to the Taliban. The Taliban forms part of the government and they do not create a new country, it is just the change of administration.
However, there are arguments dictating that as a non-state actor, they could be the de facto government or an illegitimate one. Regardless, international laws still apply to them, but with varying perspectives.
This entirely depends on the other country's view of them. One would not recognise the Taliban, and some would. As an illegitimate government, the common article 3 of the Four Geneva Conventions, article 3 of the Additional Protocol II and article 4 of the Third Geneva Convention could be applied to them.
If the Taliban were commit any international attacks, then other countries may retaliate and fight them back on the basis of self-defence of article 51 of the UN Charter. However, the author acknowledges some weaknesses in his writing, as there may be more legal dissenting opinions, sources, inconsistencies and what are the legal sanctions taken if the Taliban were to breach IHL and the mentioned laws.
(5.0) References;
Wolfrum, R., & Philipp, C. (2002) The Status of the Taliban: Their Obligations and Rights under International Law. (6). Pp 559-601. Retrieved from, https://www.mpil.de/files/pdf1/mpunyb_wolfrum_philipp_6.pdf
UNITED STATES INSTITUTE OF PEACE. (2004) SPECIAL REPORT: Establishing the Rule of Law in Afghanistan. Retrieved from, https://www.usip.org/sites/default/files/file/sr117.pdf
Bellal, A., Giacca, G. & Casey-Maslen, S. (2011) International law and armed non-state actors in Afghanistan. (93) 881. Retrieved from, https://www.corteidh.or.cr/tablas/r27089.pdf
Maizland, L. (August, 2021) The Taliban in Afghanistan. Retrieved from, https://www.cfr.org/backgrounder/taliban-afghanistan
Hamza Mohamed & Ramy Allahoum. (August, 2021) Taliban enters Afghan presidential palace after Ghani flees. Retrieved from, https://www.aljazeera.com/news/2021/8/15/taliban-continues-advances-captures-key-city-of-jalalabad
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