Posted on: 03-09-2019

By Nicole Valentini

With the closing of the US-Taliban deal and the climate of uncertainty around it, it may be helpful to resort to international law in order to understand where these talks could lead Afghanistan and what's their legal position in the light of the law of nations. What’s the Taliban’s status? Will the international community recognize a new government? Where is the US-Taliban deal leading the country? The answers to these questions could give us some hints to understand the present and take a glimpse on what could happen in the forseeable future. 

A meaningful distinction

The first thing to mention is the Taliban status under international law. In the political and media arena it has been debated whether they should be defined as a terrorist or as an insurgent group. The difference between the two definitions is not just formal but factual. At the beginning of the conflict, the Taliban movement was mostly defined as a terrorist group in order to shape public opinion and raise popular support for the war.

Even if as stated by the Office of the United Nations High Commissioner for Human Rights (OHCHR)

“In legal terms, the international community has yet to adopt a comprehensive definition of terrorism, existing declarations, resolutions and universal “sectoral” treaties relating to specific aspects of it define certain acts and core elements. In 1994, the General Assembly’s Declaration on Measures to Eliminate International Terrorism, set out in its resolution 49/60, stated that terrorism includes “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes.”

According to this definition, the Taliban can certainly be described as a terrorist movement, yet over the years we have assisted to a shift of meaning: the group started to be defined as an insurgent group while the word terrorism disappeared from the public discussion. The same Afghan government never called the Taliban terrorists until a few months ago when it became clear that the US' highest priority was to leave the Afghan quagmire, even if that meant abandoning their ally to their fate. The international law defines the insurgency as "an uprising or rebellion by an organized group against their government or governing authority." The recognition of insurgency expresses the willingness of third-party countries not to treat insurgents as simple criminals in order to maintain a relationship with them and to protect their own citizens present on the territory controlled by the insurgents. [1]

Hence, insurgents that have reached a certain threshold of organization, stability and effective control of territory, possess international legal personality and are therefore bound by the relevant rules of customary international law on internal armed conflicts [2]

Effectiveness, independence and stability

Even if insurgents are subjects of international law, insurgency is a temporary and precarious phenomenon because either the insurgents get defeated and cease to exist, or they win and replace the government.

Since in Afghanistan the Taliban haven't been defeated and now the US are determined to withdraw most of their troops as soon as possible (particularly in view of forthcoming 2020 United States Presidential elections) we are probably heading toward a future where the most likely scenarios are an Interim government, a new Taliban government, or a civil war.

This because even if also the Afghan government hasn’t been defeated, its aid dependency by foreign money prevents it from being able to act independently and thus to be effective and stable [3]. In 2018 the very same President Ghani told to the CBC that “Without US money Kabul can’t support its own army more than six months”.

Only a few days ago, two foreign diplomats told the NBC news that "In a draft of the proposed U.S-Taliban agreement, the insurgents are referred to as the “Islamic Emirate of Afghanistan". Clearly this reference is not just a concession to push the Taliban to accept the deal, but it could represent the premise of a new government’s de facto recognition. According to international law, the recognition of new governments is a unilateral political act and it indicates the willingness on the part of the recognizing side to establish official relations with the government in question.

With regard to the recognition of governments, the Third Report of the Committee on Recognition and Non-recognition in International Law established by the Executive Council of the International Law Association (ILA), determined that the two most important criterion for recognition are effectiveness and stability. [4]

A fundamental recognition

When talking about government recognition we must differentiate between a de facto and de jure recognition. While a de jure recognition is definitive, unconditional and irrevocable and demonstrates the full availability of a State to establish close collaboration relationships with the recognized State without any reservation, a de facto recognition is provisional and revocable and generally concerns a government on whose legitimacy there are reservations and with which there is no intention to establish close collaboration relations.

The US would probably prefer to avoid dealing with an intransigent and obscurantist Taliban government and it could use some leverage in order to link the recognition to the respect of legal obligations and maybe of some basic human/civil rights. That’s also why according to some rumors intelligence (RUMINT) on one hand the United States drafted a detailed plan for an interim government including the Taliban, while on the other both the “United States and the Taliban are now trying to seal an agreement under which U.S. forces will withdraw in exchange for a Taliban security guarantee and a promise of power-sharing talks with Ghani’s government.” 

As stated by the Italian International Law Professor Daniele Amoroso:

“The recognition of insurgents as a de jure government is undoubtedly the most fraught with legal consequences. This form of recognition creates a particularly broad assessment since it identifies the insurrectionary party as the entity capable of representing the State in its external relations as well as the only legitimate depository of internal force. From this derives a series of important implications, especially when the recognition comes from a State. In this case, in fact, recognition, as a de jure government postulates: a) that the top exponents of the insurrectional party will enjoy the immunities provided for by international law in favor of the governing bodies; b) that, in the presence of the right requisites, extraterritorial effects will be recognized to the acts of government of the insurgents; c) that the insurrectionary movement may dispose of the foreign assets of the State. Furthermore, since the same State cannot be legitimately governed by two entities, the recourse to this formula of recognition automatically entails the disavowal of the pre-existing government, with the consequence that everything that is recognized to the insurrectional party (immunity, extraterritorial effectiveness of the acts of government, availability of foreign assets) must be denied to the unknown regime.”

In order to recognize a new government, States need also to consider various factors: 1) Effective control 2) Obedience of mass of population 3) Stability of permanence and 4) Respect for the international law.

According to part of the doctrine, a premature recognition would constitute an international wrong toward the State affected by the insurrection. By virtue of this principle, the insurrectional party could not be recognized as a de jure government for the duration of the civil war, i.e. as long as the resistance of the incumbent government does not become, to use the words of the Lauterpacht, "hopeless or purely nominal "

That’s also why to determine how much territory is under government or insurgent control is a fundamental issue for the very same government’s survival. Of course, the United States is not the only actor playing an important role in the Afghan situation. In light of their strategic, economic and political interests, the role of countries such as Russia, China, India, and Pakistan must not be underestimated in any way.

Likewise, the role of the Afghan people and of other important stakeholders should not be ignored. Certainly, Afghans won’t be a helpless actor in the conflict, especially in light of the hostility that most of them seem to feel towards a group that has terrorized and killed thousands of civilians.

In the end, it will also be a matter of self-determination to decide the outcome of a terrible conflict that has already taken too many lives. Perhaps in imagining what could happen in Afghanistan after the agreement between US and Taliban we should remember the famous words of Sir Olaf Caroe, the last British governor on the Afghan frontier, who once said that: "unlike other wars, Afghan wars become serious only when they are over."

Professor Daniele Amoroso and Dr. Zalmai Nishat contributed insights in the writing of this article.

Nicole Valentini is a freelance journalist, researcher, and translator based in Italy. For the past ten years, she has worked on many projects related to Afghanistan both in the cultural and journalistic fields. She has studied Political Science at Justus-Liebig University in Germany and International relations at Padova University, in Italy.

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The article does not reflect the official opinion of the AISS.