Under the international legal system, peace or ceasefire agreements are usually concluded between hostile states or governments, in order to end a state of war. Nevertheless, these agreements are also being reached between governments and non-state groups, and are given internationally legally binding status as “internationalized” agreements. As such, in February 2020, the United States and the Taliban reached a bilateral security agreement to spell the end of the eighteen-years-long war in Afghanistan. Although an intra-Afghan peace deal is yet to be hammered out between the Taliban and the former Afghan government, the US-Taliban agreement points to pivotal issues in regards to the process of the US withdrawal and the legal obligations of the Taliban in the aftermath of the withdrawal. In many sections of the agreement, it is emphasized that the Taliban would refrain from committing further violence in Afghanistan and using the Afghan soil for terroristic purposes. However, these promises seem to have remained on paper, considering the recent coup of the Taliban to seize the rule over Afghanistan following the withdrawal of the US troops from Afghanistan in early July.
From an international legal approach, the qualities and enforcement of the US-Taliban agreement and the Taliban’s post-withdrawal movements can be critiqued from some crucial angles. In addition, the implications of the mis-enforcement of the US-Taliban agreement can impinge on the international legal aspects of a post-settlement Afghan government which would mostly comprise Taliban members.
Legal Defects, Breach, and Mis-enforcement of the US-Taliban Agreement
The US-Taliban agreement is referred to as the “Agreement for Bringing Peace to Afghanistan…”. Nevertheless, it falls short of fulfilling the key conditions of ceasefire or peace agreements. Under international law, peace agreements should ideally be void of ambiguity and must contain necessary details. Dates and times should be precisely specified and conformed to. By signing the bilateral agreement, the US legally committed itself to pull out troops from Afghanistan within 14 months after February 2020. However, the withdrawal took place abruptly and with a three month delay. The Taliban had warned that they would not participate in any conference regarding Afghanistan in case the foreign troops do not exit Afghanistan by the deadline. That being said, the Biden administration opted for a more prolonged withdrawing process. This counts as a violation of the time-related provision of the agreement, which further impinges upon the regular and timely implementation of the agreement as a whole. The language of the agreement is also vague on the part of the US. The US has not legally pledged itself to take on any responsibilities while exiting Afghanistan. Having said that the US officials have always voiced concerns that a post-withdrawal Afghanistan may once again turn into the safe haven of terrorism, they did not anticipate any conditions and required standards for a cautious and responsible withdrawal. Thus, there remains a legal vacuum on the part of the US regarding the careful and orderly implementation of the agreement.
The fact that the US and Taliban have breached some key points of the agreement, does not, however, attest to its non-binding status. Christine Bell and Scott Sheeran (Foreign & Commonwealth Office, 2016) point out that peace agreements are internationally legally binding when they are “concluded purely between a Government and a non-State armed group”. Article 3 of the Vienna Convention on International Treaties (VCIT) also provides that the fact that the Convention only applies to the agreements concluded between states, shall not affect the legal force of the agreements reached between states and other subjects of international law, e.g., armed groups.
To prevent the breach of any provision by the parties and ensure the successful implementation, peace agreements must also contain “provisions for monitoring”. In the US-Taliban case, neither sidesensed the need for a prospective impartial supervisor to ensure the successful implementation of the agreement’s provisions. The lack, and breach, of these features thus led to the misunderstanding and mis-enforcement of the US-Taliban agreement. This, in turn, offered the Taliban an opportunity to run riot and start organized attacks on the Afghan provinces right after the US withdrawal.
The Consequence of a Mis-Enforced Agreement: Taliban’s Post-Withdrawal Coup
Following the US departure from Afghanistan, Taliban members started to raid provinces and city centers, in order to take over the whole country. Although the “peace” agreement has accentuated the necessity of the Taliban’s refraining from aggression, their recent attacks have killed a large number of Afghan security forces and have displaced many civilians. The Taliban has also destroyed public service offices, state apparatus, and historical monuments during the process. Despite the continuous resistance of the Afghan security forces, Afghanistan completely collapsed on 15th August 2021.
The Taliban’s takeover of Afghanistan remains legally unacceptable with regard to the provisions of the US-Taliban agreement and international law instruments. The movement tramples the focal points of the agreement: Taliban continued to spread violence inside Afghanistan and have once again used the Afghan soil for terroristic activities, thereby creating strong basis for the rise of US concerns regarding the restoration of terrorism in the region. This in turn attests to the Taliban’s infringement of the Pacta Sunt Servanda (Agreements must be kept), that is a fundamental principle of international law. Based on this norm, each party is per se obliged to avoid activities that defeat the purpose and provisions of the agreement. Therefore, the involved parties are bound to fulfill the commitments they make pursuant to the agreement. Thus understood, Taliban members have elided ways of proving their commitment to this agreement and the international agreements they may be subject to, in the future. Furthermore, Taliban once again proved that they are not adherent to the Geneva Conventions, which emphasizes the necessity of protecting civilians during the war. Article 3.1. of the Geneva Conventions requires the parties to abstain from harming individuals who do not take an active role in the conflict. However, the seizure of Afghanistan by the Taliban has left in its wake thousands of displaced families and homeless civilians. Taliban have also disregarded The Hague Convention 1907. Although Article 3.C. of the Convention prohibits any attack on buildings allocated to the public service as well as historical monuments, Taliban have damaged historical places and public offices inside Afghanistan.
Taliban’s indifference to their obligations raised by the agreement as well as the international law principles takes a drastic toll on the international legal aspects of the post-settlement government of Afghanistan which will either be formed solely among Taliban members or between the Taliban officials and the former Afghan authorities.
Implications of the Taliban’s Coup: How Will a Post-Settlement Afghan Government Look Like from an International Legal Lens?
The pouring of the Taliban into cities and the killing of security forces in order to take the rule over the country run counter to both the agreement and international law. In case the takeover results in the brokering of a peace deal between the former Afghan government and the Taliban, the resulting unity government will face serious international legal issues. The national army would consist of both Taliban members and Afghan security forces. Taliban members would be involved in the security sector and as they have the potential to once again threaten the security and enter into a conflict with the opposite side, the international community would closely and regularly monitor the Afghan government to elude the rise of violence, and the breach of international human rights values by the new administration. This in turn leaves at stake the state immunity of the Afghan government before international courts. That being said, the damage will not only embroil Afghanistan’s legal relations with the international community, as a collective player. It would also impinge on the country’s bilateral relations with other states. In regard to the good-faith fulfillment of the international obligations, the contracting countries will justifiably suspect the commitment of the Taliban members to the provisions of the agreements.
There is also the possibility of another scenario. The Taliban may step out of the agreement and officially establish an Islamic Emirate, which only consists of their own officials. It is visible in plain sight that the Taliban have never legally gained international recognition as an Islamic Emirate. The US has also particularly emphasized that it would not recognize the Taliban in such a way. The Afghan public is also reluctant to accept the Taliban in power, once again. That being said, the fact that the Taliban have attempted to capture the cities by violence, which is obviously against the provisions of their agreement with the US, will exacerbate the conditions for international recognition and the survival of the Emirate. Under international law, in order to become a state, a political community must have the nation as its followers and be internationally legally recognized. The lack of these two conditions coupled with the takeover of the territory by force and violence will dramatically minimize the chances for the survival of a Talibani Emirate in Afghanistan.
Despite being dubbed as a peace agreement, the US-Taliban agreement of 2020 legally lacks key features of a peace agreement. It is void of necessary details regarding the U.S. obligations amid and after withdrawal. The agreement also contains sensitive points regarding the timing of the withdrawal which have been violated by the US. This, in turn, became a precursor to the mis-enforcement of the agreement and Taliban’s success to capture Afghanistan by force. On 15 August, 2021, the Taliban completely seized the rule over Afghanistan. Despite the US-Taliban agreement emphasizing on the Taliban’s commitment to refrain from any act of violence inside Afghanistan, the takeover took place via aggression. The seizure of Afghanistan by the Taliban infringed the key provisions of the agreement, and international law principles on the protection of civilians and public buildings during armed conflicts. By so doing, the Taliban have also ignored international soft law instruments, e.g. the principle of Pacta Sunt Servanda: the principle legally binds the parties to an agreement to remain committed to their obligations raised by the provisions of the agreement.
The recent coup of the Taliban may leave the legal future of their government in limbo. The illegitimacy of the group in taking over the country will also transpire post-settlement. From an international legal perspective, the Taliban government will be an administration formed without the consent of the population and recognition of the international community. In addition, it will often be under direct supervision of the international community to prevent any violation of human rights values. This consequently un-shields the state immunity of the government before international judicial engines. The government will also be under suspicion of other states in regards to its good-faith fulfillment of international obligations. Thus conceived, the government’s chance of survival under the international legal order is weak.
The author is a Researcher at the Institute of War and Peace Studies, Kabul.