The conflict in Afghanistan is one of the longest contemporary conflicts involving an international coalition of military forces. In October 2001, the United States of America initiated air strikes on Afghanistan, followed by a ground offensive called Operation Enduring Freedom, to topple the Taliban government and drive out Al Qaeda forces hosted in Afghanistan following the 11 September 2001 terrorist attacks on the United States. Since then, armed conflict has covered many parts of the country. The intensity of the conflict has been growing significantly, with a resurgent TalibanFootnote 1 and a number of other non-state armed groups pitted against Afghan government forces and an international coalition of some 150,000 military personnelFootnote 2 serving in the International Security Assistance Force (ISAF)Footnote 3 and Operation Enduring Freedom.
This article looks at the application and implementation of international law by armed non-state actors (ANSAs) in Afghanistan.Footnote 4 We approach these issues by investigating the application to these actors of both international humanitarian law (IHL) and international human rights law frameworks. In the first part of this article, the regimes under Common Article 3 and Additional Protocol II and their relevance for ANSAs operating in Afghanistan will be analysed in detail. A brief enquiry into customary IHL will also provide an insight into other applicable rules. While the applicability of human rights law to the behaviour of ANSAs remains highly controversial, the practice of international organizations is pointing towards increased accountability of those actors for human rights violations, at least at the political level. From a legal point of view, such accountability seems to be more accepted when ANSAs exercise control over territory or a segment of the population, or when core human rights norms are at stake. Finally, the article assesses efforts to implement the applicable law in Afghanistan and considers what more could be done to improve respect by ANSAs, particularly the Taliban.Footnote 5
Armed non-state actors in Afghanistan
There is no consensus among commentators as to the size and structure of ANSAs in Afghanistan, or as to the nature of the relationships between them. The Taliban emerged in the early 1990s in northern Pakistan amid the violence that followed the withdrawal of Soviet troops from Afghanistan.Footnote 6 From their initial sphere of influence in south-western Afghanistan, they quickly extended their control over the rest of the country. In September 1996, they captured the Afghan capital, Kabul;Footnote 7 by 1998, they were in control of almost 90% of Afghanistan. Pakistan, Saudi Arabia, and the United Arab Emirates were the only three states that recognized the Taliban as the legitimate government in Afghanistan when they were in power until their military defeat by the US-led coalition in 2001.Footnote 8
Since that defeat, an insurgency has emerged against the government elected in 2002, which has grown in intensity each year.Footnote 9 In describing the insurgency, the UN Assistance Mission in Afghanistan (UNAMA) uses the term ‘anti-government elements’, which ‘encompass individuals and armed groups of diverse backgrounds, motivations and command structures, including those characterized as the Taliban, the Haqqani network,Footnote 10 Hezb-e-IslamiFootnote 11 and others'.Footnote 12 The precise nature of the relationships between the different armed groups within Afghanistan and in neighbouring Pakistan is not known.Footnote 13 The size of Taliban forces in Afghanistan is estimated by the US to be around 25,000, although the reliability of this figure is contested.Footnote 14 By 2010, the Taliban were said to be holding sway in the south and east of the country, as well as in pockets of the west and north, and ‘in 2009 started launching increasingly brazen attacks in urban areas’.Footnote 15 The Taliban in Afghanistan are still believed to be led by Mullah Omar, a village clergyman who headed the group from the outset, including when they were in power.Footnote 16 Reports suggest that Al Qaeda was weak in numbers in Afghanistan, perhaps with as few as fifty men in late 2010.Footnote 17 The nature of the relationship between Al Qaeda and the Taliban in Afghanistan today is also unclear.Footnote 18
A high price is being paid by the civilian population for the ongoing conflict in Afghanistan.Footnote 19 The forces said to be the main cause of their suffering are the non-state armed groups. According to Amnesty International, for example: ‘The Taleban and related insurgent groups in Afghanistan show little regard for human rights and the laws of war and systematically and deliberately target civilians, aid workers, and civilian facilities like schools (particularly girls’ schools)'.Footnote 20
Applicable international humanitarian law
We believe that the armed conflict in Afghanistan is currently governed by the customary and treaty rules applicable to armed conflicts of a non-international character.Footnote 21 Prior to the current armed conflict, the violence in Afghanistan has moved through at least three phases since 2001. The first of these phases covers the situation leading up to the US-led invasion of Afghanistan in October 2001; the violence between the Taliban government and the Northern Alliance forces at that time constituted an armed conflict of a non-international character. The second phase began with the US-led attacks against the Taliban on 6 October 2001, which constituted an international armed conflict governed by applicable customary and treaty rules.Footnote 22 The question of whether operations against Al Qaeda during that conflict could be considered as part of this international armed conflict or whether they represented a separate non-international armed conflict is moot.Footnote 23 The third phase is the occupation of Afghanistan by US and other foreign forces. This occupation is also considered an international armed conflict by Article 2 common to the four Geneva Conventions (Common Article 2). There is no consensus among legal authorities as to when exactly this occupation ended.Footnote 24
Nonetheless, subsequently the armed violence in Afghanistan was certainly of a sufficient intensity to constitute an armed conflict of a non-international character. The two sets of treaty rules generally applicable to such conflicts are Article 3 common to the four Geneva Conventions (Common Article 3) and the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II).Footnote 25 Afghanistan ratified the four Geneva Conventions in 1956 and adhered to the two Additional Protocols in June 2009, with Additional Protocol II coming into force for that country on 24 December 2009.
This section assesses the application first of Common Article 3 and then of Additional Protocol II to the armed conflict in Afghanistan. A distinct but related issue is the direct application of each of these sets of legal obligations to all ANSAs involved as parties to that conflict.
Application of Common Article 3
The extent to which Common Article 3, whose rules are part of customary international law,Footnote 26 regulates the conduct of hostilities is debated. For some commentators, the provisions only afford protection to persons falling under the direct control of a party to the conflict and therefore the article has no direct relevance for the conduct of hostilities.Footnote 27 For others, the reference to ‘violence to life and person’ would cover acts committed in the course of military operations. Thus, for example, Rogers affirms that:
Common Article 3 does not deal directly with the conduct of hostilities. It seems, at first sight, only to protect the victims of such conflicts. … However, a close reading of the text of the article leads to the conclusion that it does more than that. For example, the principle of civilian immunity can be inferred from paragraph 1, which prohibits violence to the life of persons taking no active part in hostilities.Footnote 28
For Common Article 3 to apply, there must be an ‘armed conflict not of an international character occurring in the territory of one of the High Contracting Parties’. Based on the case law of the International Criminal Tribunal for the Former Yugoslavia (ICTY), this demands that two criteria be satisfied: there must be a state of ‘protracted’Footnote 29 armed violence, and any ANSA must possess a certain level of organization in order to be considered party to the conflict under international law.Footnote 30
Afghanistan, as noted above, is a state party to the Geneva Conventions, and for most of the last decade the violence between the Afghan government and international military forces and organized armed groups (particularly, but not only, the Taliban) has been of such intensity that an armed conflict has been taking place. It is further asserted that regarding the requisite level of organization of an ANSA to be considered a party to the conflict, the four main groups – the Taliban, the Haqqani network, Hezb-e-Islami, and Al Qaeda (in Afghanistan) – have each demonstrated sufficient organization to be bound directly by international humanitarian law.Footnote 31 In the case of the Taliban, the issuance of what is in effect a military code of conduct is evidence of the existence of command structure and disciplinary rules and mechanisms within the group.Footnote 32
To what extent Common Article 3 directly addresses ANSAs has been debated. The article states that ‘each Party to the conflict shall be bound to apply, as a minimum’ its provisions. It has sometimes been claimed that the term ‘each Party’ does not apply to ANSAs, even though they may meet the criteria for being a party to the conflict, but only to government armed forces.Footnote 33 State practice, international case law, and scholarship, have, however, confirmed that Common Article 3 applies to such ANSAs directly.Footnote 34
Despite this apparent certitude, the precise legal means by which such non-state actors are bound by international humanitarian law is more controversial.Footnote 35 Several legal arguments have been advanced to explain why (or how) ANSAs are bound by certain international norms. The first – and, in the view of many commentators, the most persuasive – holds that ANSAs are bound by customary international humanitarian law.Footnote 36 Thus, it is asserted that, at least in the case of Common Article 3, this provision is declaratory of customary international law and thereby applicable to each party to a conflict without formal ratification.Footnote 37 A second approach, known as the doctrine of legislative jurisdiction, asserts that the rules of international humanitarian law bind any private individuals, including ANSAs, through domestic law, via implementation of these rules into national legislation or direct applicability of self-executing norms.Footnote 38 This theory is problematic, since what is at stake is not the fact that ANSAs are subjects of domestic law but the direct regulation of the acts of such groups under international law.Footnote 39 A third approach is based on the general principles governing the binding nature of treaties on third parties under the 1969 Vienna Convention on the Law of Treaties.Footnote 40 This would entail enquiry into the intention of the contracting states to impose duties on third parties and that the parties accept to be bound.Footnote 41 However, this approach can easily be challenged on the ground that the Convention only addresses treaties between states creating obligations for other (third) states. Fourth, one can consider that, when ANSAs exercise any effective power over persons or territory of a state, they are bound by that state's obligations.Footnote 42 This claim is unpersuasive, though, as Common Article 3 – in contrast to Additional Protocol II – does not require territorial control for applicability and, as Moir points out, not every group seeks to replace the state.Footnote 43
Further discussion on the relative validity of the different theories is beyond the scope of this article. Suffice to acknowledge that, although the legal reasoning to sustain this conclusion remains unsettled, it has now become uncontroversial, even ‘commonplace’,Footnote 44 that ANSAs are bound by international humanitarian law.
Application of Additional Protocol II
The entry into force of Additional Protocol II to the Geneva Conventions for Afghanistan in December 2009 raises the question of its applicability to the ongoing armed conflict. According to Article 1, paragraph 1, the Protocol applies
to all armed conflicts … which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.Footnote 45
Additional Protocol II introduces a higher threshold of application than Common Article 3. In addition to the existence of an armed conflict between the insurgency and the government taking place in the territory of a High Contracting Party,Footnote 46 there are three cumulative material conditions under Article 1, paragraph 1: the organized armed group(s) must be under responsible command; they must exercise such control over a part of the national territory as to enable them to carry out sustained and concerted military operations, and the territorial control must be such as to enable them to be able to implement the Protocol. Where these cumulative criteria for application of Additional Protocol II are objectively met, the Protocol becomes ‘immediately and automatically applicable’, irrespective of the views of the parties to that conflict.Footnote 47
Responsible command
What is required is that the group possesses organs and has ‘a system for allocating authority and responsibility’.Footnote 48 The Taliban's ‘Code of Conduct’ is evidence of such a system and it can be asserted that the Taliban meets this organizational criterion, although at least one commentator has questioned this.Footnote 49
Control over a part of the territory
There are differing accounts about the Taliban's actual territorial control of Afghanistan. For instance, in December 2008 the Taliban was said to have expanded its sphere of influence to 72% of the country, ‘confident in their expansion beyond the rural south’, and it was claimed that ‘the Taliban is at the gates of the capital and infiltrating the city at will’.Footnote 50 It has also been claimed that the Taliban are not in control of a single large section of territory, but rather of areas intermingled with those under government control.Footnote 51
The requirement of territorial control is, however, purely functional. It must be sufficient to enable the Taliban to conduct sustained and concerted military operations and to implement the Protocol, both of which are discussed below. For this reason, the criterion is not based on the number or duration of the presence of members of the armed group.Footnote 52
Sustained and concerted military operations against governmental armed forces
‘Sustained’ military operations against governmental armed forces refers to continuous operations, while ‘concerted’ indicates operations that are ‘agreed upon, planned and contrived, done in agreement according to a plan’.Footnote 53 Given the intensity of combat in Afghanistan and the level of casualties suffered by the forces ranged against the Taliban (see introduction above), this criterion has clearly been met.
Implementation of the Protocol
The ability to implement the Protocol is considered as the ‘fundamental criterion’ that justifies the other elements of the definition of Article 1 of Additional Protocol II.Footnote 54 It has even been said that the condition that ANSAs have the capacity to apply the substantive obligations of the Protocol is the basis for their ‘obligation to do so’.Footnote 55 It thus appears sufficient to establish that the Taliban could realistically apply the provisions of the Protocol should they be so minded, not that they actually do so. If it were otherwise, the level of requisite respect would thus become an issue and it could even be argued that the Protocol would only apply to armed groups that were already respecting its provisions in full.Footnote 56
This inquiry leads us to conclude that Additional Protocol II is indeed applicable to the conflict in Afghanistan, at the very least to the hostilities between the armed forces of the Government of Afghanistan and the Taliban, given that all the requisite criteria appeared to be met as of early 2011.
Content of Additional Protocol II
As to the obligations set by Additional Protocol II, the instrument contains a set of eighteen substantive provisions that ‘supplements and develops’ the contents of Common Article 3.Footnote 57 It places more detailed obligations on states and ANSAs that are party to the conflict, extending the protection afforded to civilians, detainees and medical personnel, and adding important provisions on the conduct of hostilities, including by:
— strengthening the fundamental guarantees enjoyed by all persons not, or no longer, taking part in the hostilities, including care of children, such as their education;Footnote 58
— laying down rights for persons deprived of their liberty and providing judicial guarantees for those prosecuted in connection with an armed conflict;Footnote 59
— prohibiting attacks on the civilian population and individual civilians, objects indispensable to the survival of the civilian population, works and installations containing dangerous forces, and cultural objects and places of worship;Footnote 60
— regulating the forced movement of civilians;Footnote 61 and
— protecting religious personnel and all medical personnel, units and means of transport, whether civilian or military.Footnote 62
That being said, the law applicable in non-international armed conflict has comparatively few rules, as is clear from a comparison of the limited number of provisions of Additional Protocol II with the extensive set of rules enshrined in the four Geneva Conventions and Additional Protocol I applicable to international armed conflicts.Footnote 63
Application of the Protocol to armed actors in Afghanistan
A thornier issue than the application of Additional Protocol II to the conflict in Afghanistan, however, is that of determining exactly to which parties to the conflict its provisions apply. It is clear that the Protocol applies to all of Afghanistan's armed and other security forces in their operations against the Taliban, but the extent to which ANSAs are also directly bound by the Protocol could be questioned. Indeed, contrary to Common Article 3, the Protocol does not expressly apply its provisions to any party (or ‘Party’) to the conflict. Nevertheless, the applicability of the Protocol to ANSAs should be inferred where they meet the criteria of ‘organized armed groups’ referred to in Article 1(1) of Additional Protocol II. This clearly includes the Taliban, based on our analysis.Footnote 64
The second question is whether Additional Protocol II governs the conflict between the Taliban and the multinational forces. A narrow reading of Article 1 would apply the Protocol's provisions only to the Afghan government, as the scope of the Protocol is limited to any conflict ‘which takes place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups’.Footnote 65 On the basis of this wording, the foreign forces are not those of the territorial state (Afghanistan) in which the conflict is taking place, unless it can be proved that the intervening states are agents of the state of Afghanistan. This would imply that the foreign forces are ‘placed at the disposal’ of the host state, but this does not appear to be the case in Afghanistan.Footnote 66
A broader interpretation – one that, in the view of the present authors, better fits with the language employed, as well as with basic logic – is that the Protocol applies to each and every party to any armed conflict that meets the criteria of Article 1(1).Footnote 67 Interpreting the material scope of application in line with the object and purpose of humanitarian law would brush away the purported territorial requirement referred to above. Thus, instead being read restrictively so as to apply only to the territorial state and its rebels, Article 1(1) should encompass the conduct of any contracting party to Additional Protocol II intervening in support of the territorial state by the mere fact of participating in a conflict that takes place in ‘the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups’.
Typically, commentators simply dismiss the possibility of any foreign military forces being expressly bound by the provisions of the Protocol in their operations in Afghanistan, without any attempt to argue their case (and without any express exclusion being included in the text of the Protocol – its application is limited to the armed conflict that meets certain criteria and not merely the parties included in those criteria).Footnote 68 Let us assume for a moment that they are correct. In the absence of agreement on the content of customary law, what treaty law would apply in the event that Afghan forces are fighting side by side with foreign military personnel? Do the Afghan forces apply Additional Protocol II but not the foreign military? What are the Taliban supposed to do? Try to distinguish between Afghan forces and foreign military forces in their conduct of hostilities and adapt their methods of warfare accordingly? Are they relieved of their Additional Protocol II obligations when fighting foreign military forces?
At the very least, the forces of states that are also party to Additional Protocol II should be considered formally bound by its provisions in their military operations in Afghanistan, as they are engaged in the armed conflict that pits Afghanistan government forces against at least one armed group meeting the Protocol's criteria for application. Otherwise this could lead to interoperability concerns, as well as a possible lack of clarity in operations between the different parties to the conflict.
Only a few such states are not party to the Protocol, including the largest troop contributor, namely the US.Footnote 69 But there is even an argument that, since all foreign states are ostensibly present to support the Government of Afghanistan – at the very least as a matter of policy, if not lawFootnote 70 – they should also expressly apply all of the provisions of the Protocol.Footnote 71 Indeed, in the existing agreement between ISAF and the Afghan authorities it is stipulated that, ‘ISAF Forces will respect the laws and culture of Afghanistan’.Footnote 72 For its part, the US ‘long has stated that it will apply the rules in its manuals whether the conflict is characterized as international or non-international, but this clearly is not intended to indicate that it is bound to do so as a matter of law in non-international conflicts’.Footnote 73
Customary international humanitarian law applicable to armed non-state actors
Whether or not Additional Protocol II is applicable to some or all of the parties to the conflict in Afghanistan, it is not contested that customary international humanitarian law is applicable to government and international armed forces, as well as to all armed non-state actors that meet the necessary criteria.Footnote 74 That being said, perhaps the main problem of customary international humanitarian law is that it does not sufficiently take into account the practice and opinio juris of ANSAs but only those of states for its formation.Footnote 75
The International Committee of the Red Cross (ICRC)'s study of customary international humanitarian law adduced a series of rules (141 in total) applicable to any armed conflict of a non-international character.Footnote 76 Somewhat controversially, these rules are said not to be dependent on any specific characterization of the conflict beyond the fact that it does indeed constitute a conflict of a non-international character.Footnote 77 Controversies surrounding certain findings of the ICRC study remain, especially as presented by certain states, including the US. In particular, uncertainties persist with regard to the universal recognition and implementation of all of these rules. Indeed, if states themselves are reluctant to develop customary rules and obligations with respect to their own behaviour, that ‘makes it hard to argue that the rules have become customary and creating new binding obligations on the armed non-state actors’.Footnote 78
Despite these uncertainties, one can safely assert that, in addition to the customary law provisions of Common Article 3, the rules regulating the conduct of hostilities such as the principles of distinction and proportionality, and the prohibition of perfidy or precaution in attack are also part of customary international law applicable to non-international armed conflicts and are then also applicable to the non-state armed groups operating in Afghanistan.Footnote 79
International human rights law
International humanitarian law, through treaty and customary rules, potentially affords a significant level of protection, especially to civilians. Nevertheless, as its ambit is limited to those acts with the necessary nexus to the armed conflict, IHL only partly addresses the harmful actions perpetrated by ANSAs against the civilian population.Footnote 80 In Afghanistan, these include interference by ANSAs with the right to freedom of expression, freedom of assembly, work, food, health, and education, and systematic gender-based violence.Footnote 81 It is thus critical to assess if, how, and to what extent ANSAs operating in Afghanistan are bound to respect human rights.
Before embarking on an analysis of this question, it is necessary to reiterate that international human rights law also applies in situations of armed conflicts, whether international or of a non-international character. This has been formally confirmed on several occasions by the International Court of Justice.Footnote 82 At the same time, however, it should be noted that certain states involved in military operations in Afghanistan contest the fact that human rights law is applicable extraterritorially to the activities of their armed forces.Footnote 83
Does human rights law apply to armed non-state actors?
Most of the relevant case law and literature has focused on the ways in which states are bound by their human rights obligations while acting in situations of armed conflict.Footnote 84 The existence of human rights obligations of ANSAs in situations of non-international armed conflict remains highly controversial.
The main reason put forward to refute the applicability of human rights law to ANSAs is linked to the structure and alleged philosophy underlying international human rights law. Human rights treaties are characterized as setting norms meant to regulate the relationship between a state and the individuals living under its jurisdiction. Thus, such human rights treaties would be ‘neither intended, nor adequate, to govern armed conflict between the state and armed opposition groups’.Footnote 85
Admittedly, in general, human rights treaties do not explicitly refer to non-state actors.Footnote 86 Thus, because of the wording and scope of application of those treaties, judicial or quasi-judicial organs – such as the European Court of Human Rights or UN human rights treaty monitoring bodies – have exercised jurisdiction only with regard to states' behaviour.Footnote 87
There are, however, two human rights treaties that specifically mention armed groups. The first notable one is Article 4 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, to which Afghanistan is a party.Footnote 88 Looking at the wording of that article, it appears that the direct legal obligation is imposed, through paragraph 2, on states parties and not on armed groups, to ensure that children under 18 are not recruited by armed groups. That argument should, though, be considered in the light of the recent practice of the UN Security Council in relation to the situations of children in armed conflict.
In 2005, the Security Council established a mechanism to monitor and report on six ‘grave violations’ committed by states and armed groups on children, one of them being ‘recruiting and using child soldiers’.Footnote 89 One of the consequences for ANSAs of committing these violations is to be listed in an Annex of the Report of the Secretary-General on children and armed conflict, which can lead to sanctions being imposed against such groups.Footnote 90 In that context, the age limit of recruitment of children is set at 18 years old, as in the Optional Protocol to the Convention of the Rights of the Child, and not 15 years old, which is the standard required in Additional Protocols I and II.Footnote 91 The application of this higher age is confirmed in practice if we look specifically at Afghanistan. The Special Representative for Children in Armed Conflict has noted that the Taliban ‘have been listed in the 8th report of the Secretary-General on children and armed conflict for the recruitment and use of children under the age of 18 years’.Footnote 92 Although the Security Council is not applying the Optional Protocol as such, practice at international level suggests that armed groups are widely considered to be bound by this norm.Footnote 93
Another treaty relevant to the overall discussion is the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa of 2009 (The Kampala Convention), which goes further than the aforementioned Optional Protocol. Article 2 explains that one of the objectives of the treaty is also to ‘[p]rovide for the respective obligations, responsibilities and roles of armed groups, non-state actors and other relevant actors, including civil society organizations, with respect to the prevention of internal displacement and protection of, and assistance to, internally displaced persons’. Article 7 goes on to enumerate a list of obligations that could be imposed on those actors.Footnote 94 Even while it stipulates that ‘the protection and assistance to internally displaced persons under this Article shall be governed by international law and in particular international humanitarian law’, it also includes human rights obligations (such as ‘denying internally displaced persons the right to live in satisfactory conditions of dignity, security, sanitation, food, water, health and shelter’). One should be cautious, however, before drawing sweeping conclusions about the impact of Article 7 on the issue of the human rights obligations of non-state armed groups. First, the second paragraph of Article 7 recalls the importance of state responsibility in this contextFootnote 95 and, second, it covers the obligations of individual members of armed groups and not those of the group itself.
Application of human rights law to armed non-state actors in Afghanistan
It seems to us that the fact that these two human rights treaties mention armed groups is a reflection of the nature of contemporary armed conflicts. Conflicts are essentially non-international in nature, opposing a multiplicity of different actors in hostilities that may last for years, as in the case of Afghanistan. This evolution demands that human rights law and not just humanitarian law be applicable to regulate the situation of all actors concerned. Indeed international humanitarian law seems unable to cover all the violations that are committed by the armed groups against the civilian population but that do not relate to the armed conflict. Neither Common Article 3 nor Additional Protocol II provides an answer to violations of these norms committed by armed groups, which leaves us with human rights. Of course, in that case, the Afghan state has the primary obligation to comply with its positive duty to exercise due diligence to protect the population from harmful interference by ANSAs, but in many instances that is not practically feasible, especially in areas under the control of the Taliban.
The contemporary practice of international organizations has been rather inconsistent in dealing with ANSAs in terms of human rights law, since it mostly denounces and condemns harmful acts or abuses committed by these actors in Afghanistan without considering them per se as human rights violations. For instance the UN Security Council has expressed ‘its concern over the harmful consequences of the insurgency on the capacity of the Afghan Government to provide security and basic services to the Afghan people, and to secure the full enjoyment of their human rights and fundamental freedoms’ and has called ‘for full respect for human rights and international humanitarian law throughout Afghanistan’.Footnote 96
The Council has been more far-reaching in its statement when it ‘call[ed] upon all parties to uphold international humanitarian and human rights law and to ensure the protection of civilian life’.Footnote 97 In his March 2010 report on the situation in Afghanistan, under the section on human rights, the UN Secretary-General further noted that ‘closely linked to impunity and the abuse of power are attacks on freedom of expression, carried out by both State and non-State actors’.Footnote 98 The UN High Commissioner for Human Rights also observed that ‘the violence, intimidation and harassment to which journalists and media workers continued to be subjected in 2009, at the behest of the Government or at the hands of the armed opposition, impacted on freedom of expression in Afghanistan’.Footnote 99
UNAMA denounced the alarming issue of extrajudicial killing of children and the impact of the conflict on access to basic services, such as health and education.Footnote 100 Finally, a more direct reference to the human rights obligations of ANSAs can be found in a recent resolution issued by the UN Human Rights Council. The resolution was meant to address widespread attacks on schools in Afghanistan allegedly committed by the Taliban during the first months of 2010. While it reaffirms that ‘Governments have the primary responsibility to protect their citizens’, it nonetheless ‘urges all parties in Afghanistan to take appropriate measures to protect children and uphold their rights’.Footnote 101
The implications of the references made by these different international organizations about human rights violations committed by ANSAs could simply be interpreted as an appeal or an exhortation to respect human rights as standards or principles, rather than pointing at the violations of binding legal obligations on such actors.Footnote 102 Whether or not these references reflect standards rather than strict binding legal obligations merits further debate. Nevertheless, they clearly demonstrate a need expressed by the international community to hold actors accountable for the violations committed against the civilian population, whatever their source. As underlined by one author:
the most promising theoretical basis for human rights obligations for non-state actors is first to remind ourselves that the foundational basis of human rights is best explained as rights which belong to the individual in recognition of each person's inherent dignity. The implication is that these natural rights should be respected by everyone and every entity.Footnote 103
Human rights obligations of armed groups exercising de facto authority over a population
Even if it is difficult to establish direct legal human rights obligations of armed groups in general, there seems to be a broader agreement that armed groups could be bound when they exercise element of governmental functions and have de facto authority over a population. This will normally be the case when an armed group controls a certain portion of the territory. Indeed, the need to regulate the relationship between those who govern and those who are governed, which characterizes the raison d'être of human rights law, would be reproduced and thus would justify the application of that body of law.Footnote 104
Imposing human rights obligations on non-state armed groups that exercise de facto control over a population has the advantage of clarifying the relationship between human rights and humanitarian law in armed conflict situations, in particular concerning the ‘fair trial’ requirement of Common Article 3.Footnote 105 Many ANSAs, including the Taliban, have established some form of judicial system or even have courts in the territory that they control.Footnote 106 It is therefore necessary to determine, based on human rights law, what would constitute fair trial procedures in the case of courts or judicial authorities being set up by ANSAs, given that Common Article 3 is not sufficiently explicit on this issue.Footnote 107
In Afghanistan, armed groups and warlords actually control villages or broader parts of the territory. As noted by a study on armed groups operating in the country:
[t]here are two different forms of warlords–strongmen in Afghanistan, largely categorized in terms of the scale of their control and their position in terms of traditional structures. National and regional warlords control provinces and parties – such as Dostum and Ismail Khan. However, the vast majority of strongmen operate at the local level, within provinces or districts or between a collection of villages.Footnote 108
Moreover, the Taliban call themselves the ‘Islamic Emirate of Afghanistan’, thus indicating that they claim or at least aspire to represent more than merely an armed group. In that case, the application of human rights law to the Taliban appears to be an appealing and logical theory, as it is necessary to ensure that persons living under their control be protected by international law. This would be even more true were the Afghan state to have no possibility of preventing or punishing the human rights violations committed by such an armed group. Ensuring human rights accountability of armed groups that exercise control over a population also seems to be congruent with the principle stated in Article 10 of the Draft Articles on State Responsibility, which declares that ‘the conduct of an insurrectional movement which becomes the new government of a State shall be considered an act of that State under international law’.Footnote 109 Following the approach of the International Law Commission, if the Taliban were ultimately to replace – or become part ofFootnote 110 – the Afghan government, the state that they represented would be responsible under international law for all the violations of humanitarian law – and arguably of human rights law – that the Taliban had committed during the armed conflict. One should note, however, that this retroactive attribution to the state of the conduct of an armed group is problematic. First, such responsibility cannot be implemented during the armed conflict and therefore it has limited practical value when it is most needed.Footnote 111 Second – and more generally – it is said to be a rather peculiar approach, ‘because it makes a State responsible for the act of an actor over whom it did not have any influence at the time of the act’.Footnote 112
Apart from this particular issue of state responsibility, other problems arise with regard to the theory that purports to apply human rights law to the groups exercising de facto authority over a population. First of all, there is no clear legal source that indicates what level of ‘authority’ or control over a population is required to impose human rights obligations on ANSAs. In Afghanistan, the situation of the Taliban before and in 2001 – that is, at the point when they actually ran almost the entire country and represented the de facto government – surely fulfilled the criterion of de facto authority over a population.Footnote 113 As of 2011, the Taliban control a significant part of the territory in Afghanistan, but it remains unclear whether a sufficient level of control has been reached as to hold them accountable under human rights law. One could further ask what human rights norms would be applicable in that case. The hypothesis would be that almost all rights, linked perhaps to the capacity of the group to implement those rights (akin to one of the requirements for the application of Additional Protocol II, namely the capacity to implement that Protocol), could be applicable. To allow a wide scope of application of human rights norms to non-state actors exercising de facto authority over a population seems justifiable if we accept that the people living under the control of an armed group must be protected as much as possible.
Further reflection is demanded to determine when the requisite threshold of authority has been met, who decides what that threshold is, and what rights might then be applicable. Interpretation by analogy of the criteria of ‘control’ developed by the Human Rights Committee with regard to the scope of extraterritorial obligations of states parties to the International Covenant on Civil and Political Rights could be a way forward.Footnote 114 Furthermore, the tripartite typology of obligations to respect, protect, and fulfil developed by UN human rights treaty bodies for state parties could be used as a valuable conceptual framework for the analysis of the extent of the human rights obligations of ANSAs.Footnote 115 The content of the obligation would be determined by the level of control of the armed group. For example, in determining an ANSA's scope of obligations it could be argued that, as a minimum, the armed group should refrain from interfering directly or indirectly with the enjoyment of rights by every individual under its control (obligation to respect). Thus, the Taliban, depending on their level of control of territory, would be obliged to respect the right to education of children and not discriminate against women. The scope of obligations would be proportionate to the ANSA's actual level of control, thus not excluding the obligation to ensure or secure human rights, although it might be questionable as to whether such an entity would have any responsibility to deliver education or enact legislation on gender equality.
Finally, a more general problem concerning the argument linking human rights obligations to a certain level of ‘control’ or ‘authority’ over a population is that it increases the perception of legitimacy of the armed group. As noted by Clapham,
it is well-known that neither governments nor international organizations will readily admit that rebels are operating in ways which are akin to governments. Linking rebel obligations to their government-like status is likely to result in there being few situations where human rights obligations can be unequivocally applied to insurgents.Footnote 116
Here, one way of overcoming the issue of legitimacy is to recall that having human rights obligations is independent of political and legal recognition.Footnote 117
Armed non-state actors are bound by Core Human Rights Obligations
There is another possible argument on how to hold ANSAs accountable for violations of international human rights law. In a recent study, the International Law Association reached the conclusion that even though ‘the consensus appears to be that currently NSAs [non-state actors] do not incur direct human rights obligations enforceable under international law’, ANSAs would still be bound by jus cogens normsFootnote 118 and insurgents should comply with international humanitarian law.Footnote 119 No mention of a degree of control of territory or a level of de facto authority over a population is included in the reference to jus cogens, which could mean that every ANSA would be bound by core human rights norms that are part of jus cogens norms. That appears to be the principle lying behind the practice of the Security Council with regard to children in situations of armed conflict. The Security Council and the Special Representative for Children in Armed Conflict do not distinguish as to the type or structure of an armed group when it comes to its listing in the Annex of the Secretary-General's Reports on Children in Armed Conflict. All that is required for its inclusion is that the group has committed one of the six grave violations mentioned in Security Council Resolution 1612.
Which human rights norms are part of jus cogens has not been settled. In its commentary on the draft articles on State Responsibility, the International Law Commission has identified as peremptory norms of international law the ‘prohibitions of aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the right to self-determination’.Footnote 120 This list is, however, exemplary rather than definitive.Footnote 121 The UN Human Rights Committee has identified the following as acts that would violate jus cogens norms: arbitrary deprivations of life, torture and inhuman or degrading treatment, taking hostages, imposing collective punishments, arbitrary deprivations of liberty, and deviating from fundamental principles of fair trial, including the presumption of innocence.Footnote 122
Holding non-state armed groups accountable for the violation of core human rights norms also seems to be in line with the development of international criminal law, which assesses the criminal responsibility of individual members of armed groups when international crimes not necessarily committed in relation to an armed conflict (and thus outside the ambit of international humanitarian law) have been perpetrated. This is the case regarding the crime of genocide and crimes against humanity, situations in which human rights violations are criminalized.Footnote 123
In conclusion, there is still room for discussion as to how and to what extent ANSAs are bound by human rights law, but one can already note a clear and growing tendency to hold those groups accountable for human rights violations committed in the course of armed conflicts despite legal uncertainties. This can be explained for different reasons. First, there is a need to protect the civilian population against the threats posed by ANSAs in areas beyond the control of the state. Second, most contemporary armed conflicts last for years, even decades. International humanitarian law was not meant to regulate the everyday life of people living in areas under the control of ANSAs over such an extended period of time. In Afghanistan, civilians living in Taliban-controlled areas strive to lead a ‘normal’ life despite conditions of extreme violence: people do business; journalists try to report; women go to work. The behaviour of the Taliban is certainly a threat to the human rights of the population, especially of women, children, or journalists, as denounced by the numerous resolutions issued by international organizations as well as reported by human rights non-governmental organizations. The Afghan government seems unable to ensure that these rights are protected, with the result that impunity appears to be the rule rather than the exception across the country.Footnote 124 However, when it comes to the protection of core human rights and dignity, it does not matter in the eyes of the victims whether the violation has been committed by the state or by a non-state actor. Even though all the legal answers have yet to be elaborated, holding ANSAs directly accountable for violations of international human rights law is certainly the direction in which the international community is heading, and rightly so.
Implementation of applicable norms in Afghanistan by armed non-state actors
There is a huge and pressing challenge to effectively implement applicable norms by the various ANSAs in Afghanistan.Footnote 125 Indeed, in its 2010 mid-year report on the protection of civilians in armed conflict, UNAMA stated that:
The human cost of the armed conflict in Afghanistan is escalating in 2010. … nine years into the conflict, measures to protect Afghan civilians effectively and to minimize the impact of the conflict on basic human rights are more urgent than ever.Footnote 126
Given these tragic realities, in the remainder of this article we propose a set of general and specific measures that we believe would contribute to improving respect for applicable norms by ANSAs. These measures are legal, political, and programmatic in nature and concern a wide range of actors including, but going beyond, the ANSAs themselves.
First, it is clear that international humanitarian law offers a relatively broad framework of protection to those caught up in armed conflict through both customary and treaty law. Uncertainties remain, however, as to precisely which rules of international humanitarian law apply in an armed conflict not of an international character, both in general and specifically with respect to the situation and actors in Afghanistan. This is not conducive to effective protection efforts and demands clarification.
For instance, as we have seen, the extent to which Additional Protocol II is applicable to the various parties to the conflict in Afghanistan is far from settled. As a first major step, the Government of Afghanistan and all foreign forces belonging to ISAF should commit publicly to respecting all of the provisions of the Protocol – and then call on the Taliban to do the same.Footnote 127 This could be combined with other applicable customary rules into ‘special agreements’Footnote 128 between the Government of Afghanistan, ISAF, and the Taliban, which could then be subject to internal and external monitoring. In August 2010, in what appears to have been a response to the UN's latest report on civilians in armed conflict, the Taliban proposed, through a statement posted on its website, to set up a joint commission to investigate allegations of civilians being killed and wounded in the conflict in Afghanistan. The statement called for the establishment of a body including members from the Organisation of the Islamic Conference, UN human rights investigators, NATO, and the Taliban.Footnote 129 A positive response to this proposal would either advance the cause of promotion of civilian protection or call the Taliban's bluff, depending on the reader's view of the seriousness of their proposal.
Second, lines of communication with the Taliban and other ANSAs that are currently focusing on a possible route to a peace agreementFootnote 130 need to encompass civilian protection and other humanitarian concerns.Footnote 131 This should include, among other things, a detailed discussion – and where possible agreement – on who is a civilian and thus how the Protocol and other applicable law should be implemented by the parties to the conflict.Footnote 132
Third, with regard to specific means and methods of warfare, there are ways in which the Taliban might be seen to respect international humanitarian law governing the conduct of hostilities. UNAMA has called for all IED (improvised explosive device) attacks, a weapon of choice of the Taliban, to cease entirely. According to UNAMA, since ‘AGEs [Anti-Government Elements] predominantly targeted military objectives using … IEDs’,Footnote 133 in such cases the attacks have respected the principle of distinction (though they might still be said to violate the rules on proportionality in attack).Footnote 134 The tactic has seemingly been extremely effective against government and especially international military forces.Footnote 135 However, UNAMA affirms that such actors ‘often used these tactics in civilian areas where a military target or objective was not clear. Certain tactics and weapons, in particular IEDs and suicide attacks, also appeared in some cases to target specific civilian individuals’.Footnote 136 Furthermore, UNAMA claims that:
IEDs kill and injure more civilians than any other tactic used in the conflict. … IEDs have been placed on roadsides, in bazaar and commercial areas, outside the homes and offices of Government officials, in bicycles and rickshaws. IEDs are detonated in a variety of ways – they can be triggered by remote-controlled IEDs (RCIED), wire-triggered, or by victims (pressure or sensitive-plated IEDs). When detonated, an IED explosion is indiscriminate and affects everyone in the vicinity of the explosion.Footnote 137
Thus, dialogue could perhaps focus on how civilian casualties could be minimized, given that the Taliban are hardly likely to agree to cease all use of IEDs.
Fourth, the issue of suicide attacks, prevalent in the conflict in Afghanistan, needs to be addressed. Any attack targeted against individual civilians or the civilian population as such is clearly unlawful and constitutes a war crime. Even where such attacks are targeted against military objectives, there are still issues of indiscriminate attacks, proportionality, and perfidy to be considered.Footnote 138 The Taliban addressed proportionality and precautions in attack indirectly in the new version of the ‘Code of Conduct’ issued by Mullah Omar in 2009.Footnote 139 Codes of conduct issued by ANSAs may facilitate engagement for a better respect of international norms because the expression of the group to commit themselves in written codes enhances the feeling of ownership of the norms and encourages respect.Footnote 140 Of course, such a commitment needs to be consistent with humanitarian principles. Regarding the Taliban Code of Conduct, developed on their own initiative, some of its rules are clearly not compatible with international norms.Footnote 141 Nevertheless, it represents a basis on which an agreement could be built to limit the use of suicide attacks. For example, UNAMA has made a number of references to its provisions, calling upon the Taliban to respect them.Footnote 142
Fifth, in our view it is time to put an end to the almost visceral rejection of the applicability of human rights law to ANSAs and accept that the world has transformed into one where a variety of non-state actors potentially have a range of international human rights law obligations. The origin of human rights law was the need to offer legal protection to the individual against the almighty power of the state. But today, can it be seriously entertained that the individual does not require legal protection against non-state armed groups in Afghanistan and that the recognized state is capable of providing it? The Taliban should therefore be recognized as an entity that has a broad range of legal obligations consonant with international human rights law, especially in areas that it controls and administers,Footnote 143 and the obligations incumbent upon it should be made explicit.
Conclusion
We have attempted to demonstrate the importance of not only international humanitarian law but also international human rights law in seeking to promote essential compliance with international norms by armed non-state actors in Afghanistan. It is clear, however, that, whatever standards are applicable or agreed upon, monitoring will be an essential element in supporting their implementation. Such monitoring should build on the work of the UN and human rights and humanitarian non-governmental organizations, and through initiatives that actively engage the Taliban. During his visits to Afghanistan, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions regretted that he did not speak with any formal representatives of the Taliban. Recognizing the political and security obstacles to engaging directly with the Taliban, Alston emphasized that ‘there is no reason to assume that the Taliban could never be persuaded to modify its conduct in ways that would improve its respect for human rights’.Footnote 144 The international community thus faces diverse challenges when dealing with ANSAs. Some of these have a legal dimension, but other aspects of a broad approach to reducing the impact of conflict on civilians demand programmes, advocacy, and, especially, direct engagement with ANSAs. All of these elements need to be pursued if we are truly to make the law anything approaching a reality.
