With the fall of Kabul to the Taliban in Afghanistan, legal questions abound. The standard security and geopolitical lenses applicable in many such situations often treat legal questions peripherally until the clarity of facts is attained that removes the fog of ambiguities anchored in subjectivities.
The present situation as it stands on the night of 15th August 2021, impresses upon policymakers to consider the following chief international law questions having territorial connection and linkages with municipal, tribal and customary laws of the people of Afghanistan. The questions at this stage are more important than their answers because the political and legal orders have yet to formalize.
Recognition of the Taliban government
The legal status of Government of Taliban is the first moot point. From an international law viewpoint, there is no question about the recognition of the state of Afghanistan, which is acknowledged and respected by all. The question is about the political and legal government that must be formally acknowledged by the UN and international community. The recognition of the Taliban as the legal government of Afghanistan has many implications. In the first place, it decides the plenipotentiaries that can bound the state of Afghanistan to legally binding obligations.
A derivative of this is the diplomatic and consular status of the government. By legally recognizing the Taliban Government, the sanctions on organizations and individuals of the Taliban will beg for revision as these will no more be ‘non-state’ actors, as these have often been referred to on many an occasion. As a consequence, the control of embassies and diplomatic missions of the state of Afghanistan will have to be, by necessity, handed over to the Taliban Government.
Status of Afghanistan
The status of the territory of Afghanistan, in terms of International Humanitarian Law (IHL), will have to be reviewed. The IHL divides an armed conflict, depending upon its intensity, into international and non-international. With the peaceful transition of power in Kabul in which the Taliban were handed overpower by the Ashraf Ghani led Government, the question of armed conflict emanating out of violence needs to be reassessed. This question is interlinked with legal recognition of the Taliban Government, which will upgrade its status from a non-state actor to a state entity.
The violence that will be directed against a state entity will have to be viewed differently from violence against a non-state actor. This qualitative change in the status of the Taliban will have far reaching effects on the state of Afghanistan.
What does international human rights law say?
The International Human Rights Law (IHRL) is a very important part of Public International Law in the Post-1991 scenario. Human rights gained ascendancy in a unipolar world led by the US. The primacy accorded by the US to human rights brought ‘individuals’ as the centerpiece of international politics against the then prevailing approach of treating only states and international organizations as subjects of international law.
Unfortunately, the IHRL dimension is linked to the municipal and national law of a country and this fact brings to fore the significance of Afghanistan’s would-be constitution as well as its would-be criminal law. The indications, as of now are, that Taliban’s stated goal is to implement Shariah (Islamic Law). Obviously, this will require legal scholars and policymakers to look at compatibility between Islamic Criminal Law vis-à-vis IHRL.
For the last many years, Islamic Criminal Law has mostly been viewed by the eyes of the media instead of deserving an assessment based on natural law principles that serve as the foundation of IHRL. Nonetheless, this will emerge as one of the chief legal international law questions in the coming days insofar as Afghanistan is concerned.
Afghan refugees and drug trafficking
Hitherto, the West has been very selective about the agenda of international organizations like the UN. It has often invested heavily in pro-Western issues of containing refugees, asylum seekers, human and drug trafficking to the conflict areas; Afghanistan was no exception.
Any delay in recognizing the Taliban as the Afghan Government is likely to increase the pressure on refugees, asylum seekers, human and drug trafficking in the West. The earlier the better as the international organizations like UN, IOM, ICRC and many international Non-Governmental Organizations (I-NGOs) need the support of the state government to operate effectively and smoothly.
The areas identified in this adumbration are by no means exhaustive. The comity of nations will have to put its act together and plan on principles of international law to enable the people of Afghanistan to self-determine their future course of action. With two world powers forced to leave the country, the message is clear: more just international legal order will lead to a better political world.
Kamran Adil is currently serving as Deputy Inspector General of Islamabad police. He studied law at Oxford University and writes and lectures on international law. The views expressed in the article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.