The Taliban, international law and the rest of the world – PRIO Blogs
The Afghan people are facing a humanitarian catastrophe. Twenty-three million Afghans, more than half the population, are starving. The UN warns of the risk of a million Afghan children dying.
In this situation, there is no way to avoid cooperation with those who control the country, namely the Taliban, in order to meet the need.
The United States and its allies, responsible in 2001 for a military intervention intended to prevent international terrorism, but which turned into 20 years of war in Afghanistan, have an obvious responsibility.
The United States and other countries resist cooperation, however, based on the Taliban’s history of tolerance of terrorism and its human rights abuses.
These countries want to avoid anything that could be construed as recognition of the Taliban regime. It was an important consideration during talks with the Taliban in Holmenkollen, Oslo in late January. Holding a dialogue with Western countries was important to the Taliban, even though their ministers were denied the opportunity to meet Norwegian Foreign Minister Anniken Huitfeldt or others of similar rank.
Who is representative of a country?
The reluctance to recognize the Taliban was also evident in President Biden’s decision to seize $7 billion in assets belonging to the Central Bank of Afghanistan, pouring half into a humanitarian fund for the Afghan people and setting aside the other half to be able to compensate the victims of the terrorist attacks of September 11, 2001. And the dilemma is clear: the money is sought and kept out of reach of the Taliban, but must at the same time be channeled to maintain hospitals and functioning Afghan schools.
It is true, as maintained by the Norwegian Government, among others, that international law imposes no obligation to recognize the governments of other countries. But governments cannot avoid the question of who should be considered capable of representing a country in the context of international law. This applies to everything from who should represent Afghanistan at the United Nations to who should be held accountable for ensuring the state meets its international human rights, environmental and anti-terrorism obligations. against terrorism.
Traditionally, international law, in matters of recognition, gives importance to who exercises effective control over a territory. But in recent years, the view has been put forward that the key questions concern the extent to which the regime has come to power in accordance with the national constitution and whether it respects international human rights and other obligations under of international law.
In the context of Afghanistan, the Taliban have no credible competitors when it comes to exercising control over the country. The Taliban have said the 2004 constitution has been abolished and they are working on a new constitution.
The previous regime has no realistic chance of returning to power. While the human rights situation is difficult, the protection of the civilian population requires cooperation, that is, cooperation with the Taliban.
Asset freeze contributes to collapse
The freezing by the United States of the assets of the Afghan Central Bank contributes to the collapse of the Afghan financial system. Afghans’ savings are rapidly losing value, it is impossible to withdraw money and it will be difficult for humanitarian and other organizations to buy goods or pay salaries. Thus, the freezing by the United States of the assets of the Central Bank contributes to the humanitarian emergency.
Seizing these assets would violate international rules on state immunity. The rules for seizure of assets through foreign courts are codified in the United Nations Convention on Jurisdictional Immunities of States and Their Property, which was adopted by the United Nations General Assembly in 2004. Although Norway has ratified this convention, it has not yet been ratified by a sufficient number of states for it to enter into force.
The main provisions of the convention are, however, considered to express general principles of international law which are binding on all States. It is true that there are various trends in state practice, with some states wanting to extend state immunity, while other states are more restrictive. The United States has made an exception for states it defines as terrorist states, for example, although this does not apply to Afghanistan.
The United States plays a unique role in the global financial system and many states have placed their foreign exchange reserves in the US Federal Reserve. This gives the United States the opportunity to put pressure on these states.
Norway and other countries should protest against the fact that a country retains assets belonging to the Afghan people, in violation of the United Nations convention and generally accepted principles of international law. Moreover, and unsurprisingly, this take provoked the Taliban, making more difficult the cooperation on which the Oslo talks were trying to establish a base.
Not all forms of cooperation are recognition
Under international law, all forms of cooperation with the Taliban cannot be construed as recognition of the regime. Norway has a long tradition of consultations with various groups in conflict, without these consultations being taken as recognition. The Holmenkollen talks should be seen in this context.
But cooperation with the Taliban must go further. It is not possible to channel aid through the UN and voluntary organizations without an agreement with the Taliban. This applies to humanitarian aid, but also to education and health.
For example, the Taliban must provide access to employee lists if teachers are to be supported in ensuring that girls and women can access all levels of education. Similar requirements will apply to healthcare and other sectors.
Afghanistan, and the state institutions that have developed over the past 20 years, are entirely dependent on foreign aid. In any event, the demands of the outside world on the Taliban will be weakened if there is no will to continue this support.
When the Taliban were in power, from 1996 to 2001, they became increasingly isolated. This isolation has contributed to humanitarian suffering, economic suffering, numerous human rights violations and the hosting of international terrorist groups. This role culminated with the terrorist attacks against the United States in 2001. Hosting Al-Qaeda and failing to contain it, the Taliban bear considerable responsibility for these attacks. But a policy of isolation that prevents any dialogue with the Taliban and has a serious impact on ordinary Afghans is difficult to defend.
It is necessary to prioritize the provision of adequate amounts of aid, even if this means cooperating with the Taliban. So the formal recognition of the regime can perhaps serve as a carrot to encourage the Taliban to play their role in delivering aid to the population and respect for human rights.
- This is an extended version of an editorial that was published in Aftenposten in Norwegian on March 20, 2022 under the title “Vi må samarbeide med Taliban”. You can read it by clicking here.
- Translation from Norwegian: Fidotext
- Kristian Berg Harpviken, Research Professor, PRIO
- Geir Ulfstein, Emeritus Professor, Faculty of Law/University of Oslo