The author, an Afghan legal scholar, argues that the Taliban cannot be formally recognized as Afghanistan's government under international law in light of its abysmal rights record, in particular — its discriminatory gender policies...
On August 15, 2021, Taliban forces seized Kabul, bringing an end to the era of the internationally sponsored Islamic Republic of Afghanistan (IRA), and reviving the Islamic Emirate of Afghanistan (IEA) in its place. While the Taliban’s approach to issues of rights remains unchanged, their control over Afghanistan is virtually unchallenged for now, fostering inevitable conflict between the demands of effective control and respect for fundamental rights as criteria for the recognition of a government under international law.
The Taliban’s legal recognizability is inextricably linked to its ability and willingness to accommodate modern-day international law and thus its obligations with respect to human rights. Due to the constitutional, non-derogable character that the Taliban’s top brass attaches to the classical work of the Hanafi brand of Islamic jurisprudence, the Taliban regime may be fundamentally unable to accommodate the Afghan state’s international human rights obligations. Aware of this irreconcilability, the IEA subscribes to the doctrine of the near absolutism of state sovereignty within its borders to bid for its inclusion in the international legal system without domestic legal reforms.
The IRA’s Last Government
Afghanistan’s presidential republic existed as such from 2004 until arguably 2021; the argument — echoed by the IRA’s last President and Vice President — is that the old regime’s leadership continues to possess the legal authority to represent the Afghan state given the absence of a legal transfer of power per the IRA constitution. This is premised on the assertion that international law has come to contain a norm that favors a valid constitutional claim, often enhanced by the democratic nature of that claim, over effective control in determining which of multiple entities possesses the status of government of a state. There is substantial precedent for states having recognized a party with a valid constitutional claim over the party with effective control.
Since August 2021, however, most states have adopted the position that Afghanistan no longer has an internationally recognized government. The US, for example, has refused to extend the diplomatic credentials of the IRA-appointed diplomats. Many states in the region and beyond have even allowed the IEA-appointed diplomats and consular officers to assume their work while maintaining their non-recognition policy. While the UN credential committee has allowed the previous IRA-appointed representative to keep Afghanistan’s seat for now without deciding as to which entity can act on behalf of the Afghan state, the Afghan envoy stated, “I am not representing the former corrupt government”.
As far as the merits of the constitutional claim of either the last President or the VP is concerned, their administration had come to power through an extra-constitutional agreement that terminated an electoral impasse. Throughout its tenure, the last IRA administration was notorious for disregarding the constitutional checks on the executive power on top of being extremely corrupt.
Afghanistan does not have a government
Maintaining that neither the Taliban nor the leadership of the IRA possesses the right to represent the Afghan state, another view maintains that the Taliban is disqualified from the status of government because they violate the basic human rights of Afghans. Implicit in this view is the argument that customary international law has evolved in favor of using democratic (or at least constitutional) rule and human rights as criteria for recognizing an entity as a government. Proponents of this view contend Taliban’s appalling human rights record, which in its gender-based discrimination may be unique in the modern world, disqualifies it from constituting a government under international law.
From the perspective of international law, there are examples of states having cited the human rights record of an entity as a reason for not recognizing that entity as a government. However, states can decline to recognize an entity as a government for various reasons without necessarily maintaining that respect for human rights is a requirement for possessing governmental status under international law.
If principles espoused by an entity violate a jus cogens norm of international law, such as the apartheid regime in South Africa, the claim that international law would disqualify that entity from being recognized as government becomes more compelling. Taking the apartheid regime as the paradigmatic case on this matter, the Taliban’s gender policies might be the most probable basis for making such an argument. Taliban’s gender policies are formally adopted as a matter of law by the Taliban making them different from other examples of human rights violations by the Taliban where the regime may argue violations happen by rouge actors. Using strongly suggestive language, many human rights activists have used the term “gender apartheid” to highlight the severity of the human rights crisis in the country. The totality of the Taliban’s gender policies may be unparalleled in modern times lending credit to the position that the Taliban’s gender policies may make the regime comparable to the South African apartheid regime in its discriminatory nature and therefore unqualified to receive government status internationally. This position assumes the existence of a jus cogens norm that prohibits the most extreme form of gender-based discrimination. This argument is admittedly weakened by the observation that gender-based discriminations continue to exist in the laws of many countries, if not to the extreme level that the Taliban enforce.
The role of UNSC sanctions
Taliban is also a sanctioned group creating restrictions on how other states can interact with a Taliban-controlled government. Following the failure of U.S. troops surge, the UNSC Resolutions 1988 (2011) and 2255 (2015) provided exemptions to the sanction regime so the negotiations with the Taliban could take place. With the benefits of these exemptions, the Taliban opened an office in Doha and negotiated an agreement with the United States on the withdrawal of U.S. troops in Afghanistan in exchange for counter-terrorism commitments.
Following the Doha agreement, in August 2021, the Taliban retook power in Afghanistan putting all the institutions of the Afghan state under their control which meant that the sanctions acted as barriers against vital humanitarian and aid assistance to a country that was chronically dependent on international assistance for survival. To help fight the humanitarian crisis that ensued, the UNSC Resolution 2615 (2021) decided “that humanitarian assistance and other activities that support basic human needs in Afghanistan are not a violation of [the UNSC sanctions]”.
Being subject to UNSC sanctions does not necessarily disqualify an entity from being considered a government under international law—unless the UNSC issues a binding resolution declaring the recognition illegal. An entity or a person can be sanctioned and control a legally recognized government. It is not uncommon for the UNSC to sanction groups or persons which are part of a legally recognized government (e.g., the Revolutionary Guard in Iran, for example). However, while UNSC sanctions remain, which in their current formulations could be indefinite, they obligate states to limit their engagements with the IEA within the space that Resolution 2615 carves out.
Taliban’s arguments and their approach to international law
The core ideology of IEA cannot be reconciled with the international human rights law unless one is willing to accept the notion that international law makes no non-derogable substantive demands from a state within its territory in relation to its subjects.
The notion of state sovereignty under international law, the IEA maintains, empowers the Taliban to constitute an Islamic state within the boundaries of Afghanistan and proscribes other states from interfering with its establishment. As a member of the community of sovereign states, the IEA maintains, that what they owe to other states, in return, is the twin, reciprocal obligation of no interference and no harm. Echoing the doctrine of near absolutism of state sovereignty within its borders, the Taliban rejects the notion that international law imposes a certain obligation on a state vis-à-vis its citizens underpinned by a set of universal values. Thus, the Taliban reject the authority of international human rights as restrictions on state sovereignty at least to the extent that it is inconsistent with the group’s interpretation of Islam.
Taliban’s rejection of international human rights laws stems from their conception of the “Islamic state”. The Taliban’s acting Chief Justice, in his book (p. 20), has argued that the purpose of IEA is to ensure its subjects follow the path decreed for them by their creator. Similarly, the Taliban’s Supreme Leader stated that the IEA will invariably enforce what is made mandatory and prohibited in Islam. What falls in between is the prerogative of the Islamic ruler to legislate with the advice of the clerical class. One needs to keep in mind that Islam as a religion, not a code of law enforced by the state, covers every aspect of a believer’s life. Taliban consider the totality of Islamic teaching to have a character of law that can/should be enforced by the state. This is a view that while is not unique to the Taliban (the Iranian regime may hold a similar view), it is not followed by other Muslim counties. Therefore, the IEA’s notion of an Islamic state empowers and even compels the IEA to legislate and police virtually all aspects of its citizens’ lives leaving little to no room for individual rights or the private sphere. The international human rights laws cannot be reconciled with this notion of the state putting the IEA unavoidably on a collision course with modern-day international law where human rights occupy a central place. Understanding this irreconcilability, the Taliban’s Supreme Leader in a speech to a gathering of religious scholars in Kabul said, “even if the infidels use nuclear weapons against us, we will not listen to them”. The Supreme Leader also connected the freedom from external intervention with the complete sovereignty and independence of Afghanistan under the Taliban.
The IEA has also struggled to uphold its commitment to ensure Afghan territory is not used against other states. So far, IEA has advanced two arguments in the hopes of reconciling their stated commitments and their robust relations with transnational terrorist groups. First, it has argued that it lacks the required intelligence to act against these groups promising to take action if provided with actionable intelligence showing that a person(s) within Afghanistan is actively harming a foreign state. Second, it has maintained that hosting members of a terrorist group in the country by itself does not necessarily constitute a violation of the IEA’s international obligation if IEA takes appropriate measures to stop these persons from actively using their guest status in Afghanistan to harm another state.
The Taliban’s untenable positions regarding their relations with the transnational terrorist groups have put Afghanistan on a collision course with many neighboring states, chief among them, Pakistan.
The question of the recognizability of the Taliban government cannot be separated from the Taliban’s willingness to accommodate modern-day international law and its human rights component. Even though the IEA is yet to adopt a constitution, its top leadership considers the classical texts from the Hanafi tradition of Islamic jurisprudence to have a non-derogable, constitutional character making it virtually impossible for the IEA to comply with international human rights laws. Given the character of IEA regime, the UNSC can choose to make a binding determination about the question of recognizability of the of Taliban government or states maintain, through their actions and statements, that the Taliban’s gender policies amount to a violation of non-derogable norms of international law and therefore the Taliban regime cannot be legally recognized until those policies are reversed.
If the community of states remains unanimous in its refusal to recognize the IEA as a legal government on the ground of its uniquely discriminatory gender policies, one could argue that international law may be evolving toward the emergence of a jus cogens norm that bans some basic forms of gender-based discrimination. Without a legal government, Afghanistan will be seriously disadvantaged in dealing with its numerous overlapping crises, from climate change or an economic meltdown. Remaining legally unrecognized or unrecognizable, however, does not absolve the current de facto authorities in Afghanistan from their obligations under international human rights and international humanitarian laws since those obligations stem from control and not the governmental status.
To read a fuller analysis of this question see Haroun Rahimi & Mahir Hazem, International Law and the Taliban’s Legal Status: Emerging Recognition Criteria? 32(3) Wash. Int. Law J. (2023)
Haroun Rahimi is an Associate Professor of Law and Interim Chair of Law at the American University of Afghanistan.
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