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Government of Taliban in Afghanistan

(After the Fall of Kabul)
and the International Law

With the fall of Kabul to 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.
These questions are:
1. Recognition of Taliban Government
Legal status of a Taliban government is the first moot point. From international law perspective, 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 United Nations and international community. The recognition of 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 Taliban government, the sanctions on organizations and individuals of 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 state of Afghanistan will have to be, by necessity, handed over to the Taliban government.
2. Status of Afghanistan
The status of 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. Amidst the transition of power in Kabul, in which Taliban gained control over the country, 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 Taliban will have far-reaching effects for the state of Afghanistan.
3. International Human Rights Law
The International Human Rights Law (IHRL) is a very important part of Public International Law in post-1991 scenario. Human rights gained ascendancy in a unipolar world led by the United States. The primacy accorded by the United States 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 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 through the eyes of media instead of through an assessment based on natural law principles that serve as 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.
4. Afghan Refugees and Drug Trafficking
Hitherto very selective about agenda of international organizations like the United Nations, the West has often invested heavily in pro-Western issues of containing refugees, asylum-seekers and human and drug trafficking to the conflict areas; Afghanistan was no exception. Any delay in recognizing Taliban as Afghan government is likely to increase pressure of refugees, asylum-seekers and human and drug trafficking on the West. The earlier the better; as the international organizations like UN, IOM, ICRC and many international non-governmental Organizations (I-NGOs) need support of the state government to operate effectively and smoothly.
The areas identified in this adumbration are by no means exhaustive. 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 better political world.

The author is an independent researcher and has done his BCL from the University of Oxford. Email: kamranadilpsp@gmail.com