Legal transition

June 27, 2020

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The writer is an expert on international law and a former federal caretaker law minister.
The writer is an expert on international law and a former federal caretaker law minister.

AFGHANISTAN is experiencing a legal transition after the signing of the Feb 29, 2020, US-Taliban agreement that raises several points from an international law perspective. The most important point relates to the legal status of the parties to the agreement. On the one hand, we have the US which is a state and an acknowledged formal, legal person whereas the other party is a peculiarly described entity. The US insists throughout the agreement whenever reference is made to the “Islamic Emirate of Afghanistan” that it does not recognise it as a state and that it “is known as the Taliban”. However, the text itself contradicts this view as it clearly ascribes a state-like platform to the Taliban as a legitimate negotiating partner to the treaty.

Notwithstanding the criteria of statehood under the Montevideo Convention, the agreement is essentially a reluctant admission by the US that the Islamic Emirate of Afghanistan or Taliban come close to satisfying the criteria of a government in the territory under their control. Earlier US state practice was to treat the Taliban as a non-state actor with transnational character and movement. Through this agreement it has recognised them as a group with a nexus in Afghanistan’s territory. So, while the US has formally contested their status as a state or emirate, in actuality, it has conceded de facto recognition that the Taliban or their existing emirate fulfils the criteria required to legally constitute a government, ie effective control and independence.

A state-like platform has been ascribed to the Taliban.

It is noteworthy that the existing Afghan government led by Ashraf Ghani is omitted from the agreement and referred to only as one of several ‘Afghan sides’. This virtual sidelining is at variance with international legal arrangements in UNSC Resolution 1378, the London Conference, and most especially the UN’s Bonn Agreement. Section I (4) of the Bonn Agreement established a legal framework for the said government. The present peace agreement is executed without having regard to the aforementioned legal instruments. This appears to be another concession to the Taliban who have refused to recognise the Ghani government believing they exercise better control over a larger part of the territory and are the legitimate representatives of the people of Afghanistan.

The peace agreement consists of four parts: the first two regulate withdrawal and the latter formalise intra-Afghan dialogue. This leads to a future roadmap for a post-settlement government, the name of which has surprisingly been agreed on well in advance by the parties as the ‘Afghan Islamic government’ in the preamble of the agreement. The Islamic government’s structure, composition and framework have also been left entirely to the outcome of this dialogue with virtually no guidelines provided for the form it should take. The extensive constitutional effort undertaken under the Bonn Agreement to ensure participatory governance has been rendered irrelevant for the purposes of a post-Afghan settlement. Essentially, the Taliban have been allowed in para 3 of Part 3 of the agreement to establish an ‘Afghan Islamic government’ based on the outcome of an intra-Afghan dialogue that is currently taking place. The agreement also lends credence to the declaratory theory of recognition in favour of the Taliban’s existing ‘Islamic Emirate’.

The first two parts effectively function as a unilateral declaration of withdrawal by the US which has undertaken to vacate five military bases in the first 125 days and the remaining within 14 months. As a result, not only will their military presence come to an end but several military bases will be vacant and the agreement is not preventing the Taliban from taking over the said bases if they fall in territory controlled by them.

The US will also withdraw sanctions imposed on Taliban functionaries by rem­o­ving their names from the reward and sanction lists (presumably under UNSC Resolution 1267). This would be an opp­o­rtune time for Paki­stan to hold a preliminary discussion with the US to identify the names of sanctioned individuals that claim to have links with Pakistan and delist them. This may reduce the burden placed on Pakistan by the Financial Action Task Force.

Part 3 of the agreement also states that the US will request the Security Council’s endorsement for the agreement. This will effectively remove sanctions on the Taliban under several UNSC Chapter VII Resol­utions. As a total of 5,000 Taliban prisoners in the Afghan government’s custody are being released, this will be seen as a further blanket exoneration precluding their individual criminal liability as they were being held for charges relating to offences in Afghanistan and neighbouring countries.

Pakistan is not a party to this agreement so Pakistan’s policy for peace in Afghanistan should be guided by the applicable principles of international law.

The writer is an expert on international law and a former federal caretaker law minister.

ahmersoofi@absco.pk

Published in Dawn, June 27th, 2020