Afghanistan has been affected by conflicts for decades. Supported by the United States, the Afghan National Security Forces (ANSF) had fought against the Taliban and the Khorasan province branch of the Islamic State group (IS-KP). In August 2021, following the withdrawal of US troops from Afghanistan, the Taliban have rapidly taken control of most of the country, Kabul included, and became the effective government of Afghanistan. Accordingly, currently the Taliban government is engaging in two parallel NIACs: one against the National Resistance Front (loyal to the former government) and the other against the IS-KP.
In recent years, Afghanistan has been affected by multiple and overlapping non-international armed conflicts.
- The former government of Afghanistan, led by Ashraf Ghani was party to a non-international armed conflict (NIAC) against the Taliban, which was an organized armed group at the time. See also‘Afghanistan Profile – Timeline’, BBC, 31 January 2018. However, in August 2021 the Taliban took control of most of the country, Kabul included, and became de facto the new government of Afghanistan, despite the fact that it has not been recognized by other States yet. ‘How the Taliban stormed across Afghanistan in ten days’, BBC, 16 August 2021; Y. Trofimov, ‘As Taliban Seek International Acceptance, Countries Seek to Engage—but Stop Short of Recognition’, The Wall Street Journal, 13 September 2021.
- Since 2015, fighters in Afghanistan have proclaimed the establishment of a Khorasan province branch of the Islamic State group (IS-KP) and started conducting attacks, thereby engaging in a non-international armed conflict with the former Afghan government. D. Azami, ‘IS in Afghanistan: how successful has the group been?’, BBC, 25 February 2017. Furthermore, there was a parallel NIAC between the Taliban and the Islamic State-Khorasan province (IS-KP). D. Azami, ‘IS in Afghanistan: how successful has the group been?’, BBC, 25 February 2017; D. Azami, ‘Why Taliban special forces are fighting Islamic State', BBC, 18 December 2015; J. Serle, Afghan Airstrikes Killed and Injured Record Numbers of Civilians in 2016,The Bureau of Investigative Journalism, 6 February 2017; M. Mashal, T. Shah, ‘Taliban’s New Leader in Afghanistann Moves to Quash Dissent’, The New York Times, 6 September 2015; N. Quraishi, J. Doran, ‘ISIL and the Taliban’, Al Jazeera, 1 November 2015 (videodocumentary). Since the Taliban qualify as the new effective government of Afghanistan, currently there is a NIAC between the governmental forces and the IS-KP.
Two criteria need to be assessed in order to answer the question whether a situation of armed violence amounts to a non-international armed conflict.
- First, the level of armed violence must reach a certain degree of intensity that goes beyond internal disturbances and tensions.
- Second, in every non-international armed conflict, at least one side to the conflict must be a non-state armed group which must exhibit a certain level of organization in order to qualify as a party to the non-international armed conflict. Government forces are presumed to satisfy the criteria of organization. For further information, see ‘non-international armed conflict’ in our classification section.
Intensity of violence
Various indicative factors are used to assess whether a given situation has met the required intensity threshold, such as the number, duration, and intensity of individual confrontations; the types of weapons and military equipment used; the number of persons and types of forces participating in the fighting; the number of casualties; the extent of material destruction; the number of civilians fleeing; and the involvement of the United Nations Security Council. For further information, see ‘non-international armed conflict – intensity of violence’ in our classification section.
Evolution of the conflict
The Taliban came to power in 1996, following a non-international armed conflict (NIAC) that took place between the non-state actor and the Afghan government led by Ahmad Shah Massoud. In 2001, In response to the 9/11 attacks, in October 2001 US President Bush launched a military intervention in Afghanistan. The intervention caused the topple of the Afghan government. Accordingly, the Taliban started fighting against Afghan and US armed forces. ‘Afghanistan profile – Timeline’, BBC, 9 September 2019; A. Chughtai and S. Qazi, ‘From the 2001 fall of the Taliban to 2020 Afghan peace talks’, Al-Jazeera, 12 September 2020.
In 2016, fifteen years after the US intervention, the Taliban were still engaging in hostilities and launching major attacks on important cities, such as the regional capitals of Helmand and Kunduz. The Situation in Afghanistan and Its Implications for International Peace and Security, Report of the Secretary-General, UN doc A/71/932-S/2017/508, 15 June 2017, §§14-18. The number of attacks in 2016 claimed by Taliban that resulted in civilian casualties alone amounted to 225. UNAMA and OHCHR, Afghanistan: Annual Report 2016: Protection of Civilians in Armed Conflict, February 2017, p 50 and Annex 1; UNAMA and OHCHR, Afghanistan: Protection of Civilians in Armed Conflict, Midyear Report 2017, July 2017, p 31. In 2017, armed confrontations continued steadily and intensified in 2018. Notably, on 14 February 2018, following a particularly intense wave of violence between the Taliban and governmental forces, the non-state actor published an open letter where it expressed its intention to negotiate with the government. On 28 February, Afghan President Ghani affirmed that he was ready to start peace talks, keeping open the possibility to recognise the Taliban as legitimate political party and to grant amnesty to fighters. International Crisis Group, Afghanistan Peace Talks Since 2018: A Timeline, 11 August 2020; International Crisis Group, Crisis Watch, February 2018. In March 2018, the president reiterated his proposal during a conference in Uzbekistan. However, the Taliban did not provide any official response. Instead, Taliban media dismissed the offer and asked to talk directly with the US. International Crisis Group, Crisis Watch, March 2018. In April 2018 the intensity of violence sharply increased, with the Taliban attempting to move closer to provincial capitals, Ghazni and Sar-e Pul. Clashes between fighters and Afghan troops resulted in the death of dozens of state forces. International Crisis Group, Crisis Watch, April 2018.
On 15-18 June 2018, the Taliban and the Afghan government announced the first ceasefire since the beginning of the conflict, coinciding with Eid al-Fitr celebrations. In July 2018, US authorities met Taliban representatives in Doha without the presence of the Afghan government. On 13 October, another meeting took place between the US Special Representative for Afghanistan Reconciliation and the Taliban, with the end to explore the possibility to initiate peace talks. International Crisis Group, Afghanistan Peace Talks Since 2018: A Timeline, 11 August 2020. On 20 October, elections took place in the country and the Taliban claimed 407 attacks. On 25 October, Pakistan released Baradar, a former Taliban deputy leader, who was soon thereafter appointed by the non-state actor to lead the peace talks. International Crisis Group, Crisis Watch, October 2018.
On 21-28 January 2019, the US and the Taliban started bilateral talks in Doha, which verted on the US and NATO troops withdrawal, counter-terrorism measures, and a ceasefire. Other nine meetings took place over the following eight months. Parallel talks took place between Taliban representatives and members of the Afghan political opposition on 5-6 February in Moscow, although no official representatives of the government participated. International Crisis Group, Afghanistan Peace Talks Since 2018: A Timeline, 11 August 2020. Albeit the ongoing negotiations, the level of violence remained high. For instance, on 4-5 February the Taliban attacked governmental outposts. In April, the rebel group announced its annual Spring offensive, which led to the killing of more than 1,000 security forces during the first month of annual fighting season. International Crisis Group, Crisis Watch, February 2019; International Crisis Group, Crisis Watch, April 2019. The following month saw a sharp increase in attacks conducted by the Taliban. Between 4 and 7 May, it has been reported that the non-state actor ‘killed at least 28 security forces in attacks in Bagdhis, Baghlan and Takhar provinces.’ Furthermore, on 15 May they killed at least thirteen soldiers and between 27-28 May armed hostilities led to the death of about 56 soldiers in Farah, Khost, Sari Pul, Ghor and Samangan provinces. International Crisis Group, Crisis Watch, May 2019.
In the meantime, negotiations between the Taliban and US troops continued. On 27-28 August 2019, the US and the Taliban concluded an ‘agreement in principle’ concerning counter-terrorism measures and the withdrawal of US and NATO troops. International Crisis Group, Afghanistan Peace Talks Since 2018: A Timeline, 11 August 2020. On 27 February 2020, the Taliban, the US, and the Afghan government agreed to reduce violence for seven days. Furthermore, on 29 February the US and the Taliban held a ceremony to sign the agreement. However, the day after the Afghan government refused to implement a prisoner exchange that was envisaged by the US-Taliban deal. Consequently, the Taliban announced that they would resume violence. Over the following months, the prisoner exchange process progressed slowly and resulted in a delay in the intra-Afghan talks. On 12 September 2020, representatives of the Taliban and of the Afghan government met in Doha in order to start peace talks to put an end to the 19 years-long conflict. International Crisis Group, Afghanistan Peace Talks Since 2018: A Timeline, 11 August 2020; A. Chughtai and S. Qazi, ‘From the 2001 fall of the Taliban to 2020 Afghan peace talks’, Al-Jazeera, 12 September 2020.
In October 2020 hostilities escalated. On 10-11 October the Taliban launched an armed attack in Lashkar Gah (provincial capital of Helmand province). It has been reported that ‘militants seized much of city’s outskirts amid reports of Afghan troops’ extensive withdrawal from front-line areas; fighting killed dozens and displaced over 35,000.’ Numerous other attacks took place during the month of October, notably in in Kunduz province (north), Baghlan province (north), Ghor province (centre), and Takhar province (north). Attacks involved both Afghan troops and US armed forces. The intensity of violence remained high during the following months and worsened in January 2021, when the Taliban conducted high-intensity attacks which killed several members of the Afghan armed forces. International Crisis Group, Crisis Watch: Afghanistan.
Between the end of 2020 and the beginning of 2021, intra-Afghan negotiations resumed and stalled a few times. Talks were suspended in December 2020. In January 2021 there was a meeting between the parties, followed by a one-month pause, and another meeting took place in February 2021, when representatives of the Afghan government and of the Taliban met in Doha, Qatar. E. Mehrdad, ‘Even as Peace Talks Resume, Killing Soars in Afghanistan’, The Diplomat, 26 February 2021. While peace talks seem to progress, clashes between Afghan troops and the Taliban have not decreased. International Crisis Group, Crisis Watch: Afghanistan.
On 14 April 2021, newly-elected President Biden announced that he intended to withdraw all US troops from Afghanistan by 11 September 2021. It has been reported that the decision was adopted unilaterally and allegedly not negotiated with the Taliban. According to the agreement signed in February 2020, all US troops should have left the country by 1 May. While this deadline was not met, the withdrawal started on 1 May. A. Watkins, How the U.S. Withdrawal Decision Will Affect the Afghan Conflict, International Crisis Group, 15 April 2021.
On 4 May, as soon as the US troops started leaving the country, the Taliban began launching a major offensive in southern Helmand and other six provinces. In June fighting intensified; for instance, on 7 June more than 150 Afghan soldiers were killed in less than 24 hours, while the UN reported that nearly 2,400 Afghan civilians were killed or wounded in May and June due to the conflict. On July 2, US forces left the Bagram airbase, their most important presence in the country, and handed it over to the Afghan National Defense and Security Forces. By July 21, the Taliban controlled half of Afghanistan districts. ‘Timeline: Taliban’s rapid advance across Afghanistan’, Al-Jazeera, 12 August 2021; ‘US forces leave Afghanistan’s Bagram airbase after 20 years’, Al-Jazeera, 2 July 2021; ‘Mapping the advance of the Taliban in Afghanistan’, BBC, 16 August 2021. Since 6 August, the Taliban advanced rapidly: Afghan provinces fell one by one, until the armed group reached Kabul on 16 August. President Ashraf Ghani immediately fled the country and a few hours later the Taliban entered the Presidential palace. On 17 August, Taliban spokesperson held the first press conference, where he affirmed that they ‘don’t want any internal or external enemies’ and that they ‘wished for peaceful relations with other countries.’ C. Ward, T. Lister, A. Dewan, S. Mehsud, ‘Afghan President Ashraf Ghani flees the country as Taliban forces enter the capital’, CNN, 16 August 2021; ‘‘At the gates’: Taliban ready to take Afghan capital’, Al-Jazeera, 15 August 2021; ‘Taliban spokesperson hosts first press conference in Kabul: Live’, Al-Jazeera, 17 August.
The end of the conflict
On 7 September 2021, the Taliban announced the formation of an interim government in Afghanistan, led by Mohammad Hasan Akhund. ‘Taliban announces new government in Afghanistan’, Al-Jazeera, 7 September 2021. As the Taliban control most of the territory, including the capital, it is worth understanding a key issue, namely whether they qualify as the new government of Afghanistan. Should the Taliban be considered the new government, this would have crucial consequences on the classification of the conflict.
Under IHL, the majoritarian view posits that the government needs to exercise effective control in order to represent the state. This position has been confirmed by the ICRC in its Commentary to the Geneva Conventions: ‘the key condition for the existence of a government is its effectiveness, that is, its ability to exercise effectively functions usually assigned to a government within the confines of a State’s territory, including the maintenance of law and order.’ It should be noted that recognition of the government by other states and questions regarding its legitimacy are not relevant for IHL purposes. Indeed, this body of law adopts a pragmatic approach and focuses on the actual situation on the ground. ICRC Commentary to GCI, Article 2, §234. See also our contemporary challenges section.
In light of the information at our disposal, currently the Taliban exercise effective control over the overwhelming majority of the country. Furthermore, they seem to exercise ‘functions usually assigned to a government, as well as the maintenance of law and order.’ For instance, it has been reported that ‘customs duty on goods entering the country via crossings they control is now collected by the Taliban.’ ‘Mapping the advance of the Taliban in Afghanistan’, BBC, 16 August 2021. It should also be mentioned that the fact that the Taliban do not control the entirety of the territory and that there are still contested areas does not prevent to conclude that it is sufficiently effective to be recognized as the new government.
National Resistance Front of Afghanistan
The government of Afghanistan had engaged in a NIAC against the Taliban for years. Since the Taliban are now the new effective government, is there a NIAC between the Afghan troops (controlled by the Taliban) and the rebel forces, former state troops loyal to the ousted government? It should be noted that forces loyal to the ousted government created the National Resistance Front of Afghanistan, led by former Vice President and National Directorate of Security chief Amrullah Saleh and and Ahmad Massoud.
For classification purposes, the main question concerns whether there is a NIAC between the National Resistance Front and the Taliban, which are now the effective government. Notably, the main issue is whether the old NIAC between the Taliban rebel group and the former Afghan government is continuing now as a NIAC between the National Resistance Front (loyal to the former government) and the Taliban, now representing Afghanistan, or whether the old NIAC is over and it is necessary to proceed with a new classification exercise. The question is open to debate and no clear answers are provided by IHL. RULAC is of the view that the fighting between the National Resistance Front and the Taliban government should be considered as a continuation of the old NIAC. This conclusion implies that there is no need for a new assessment of the required level of intensity of the armed violence. It should only be examined whether the conditions for declassification have been met between the two parties. This would be the case when there is a lasting cessation of armed confrontations without real risk of resumption or when one of the parties ceases to exist. The latter occurs for example when a non-state armed group no longer exhibit a certain level of organization in order to qualify as a party to the NIAC. ICRC Commentary to Article 3 GC (2016), §488-496.
Initially, it was unclear whether fighting was ongoing and contrasting news were reported. On the one hand, on 7 September 2021 the Taliban claimed that they defeated the National Resistance Front of Afghanistan and declared therefore victory over the Panjshir Valley. On the other hand, the National Resistance Front affirmed that fighting was not over. ‘Afghanistan: Taliban claim to have taken Panjshir Valley’, BBC, 7 September 2021; J. Seldin and A. Gul, ‘Afghanistan Opposition Forces Insist 'There’s Still Hope’, VOA News, 11 September 2021. In the months following the Taliban takeover, it was reported that fighting has continued, albeit on a smaller scale and a number of sources indicated that the presence of National Resistance Front fighters in both Baghlan and Kapisa province was still significant. In October and November 2021, the National Resistance Front upheld the resistance in a rather modest way by means of less extensive attacks. International Crisis Group, CrisisWatch, October and November 2021; ‘3 months since takeover, is NRF still a thorn in the Taliban’s side?’, WIO news, 15 November 2021.
From December 2021, fighting between the Taliban and the National Resistance Front was reported to be on the rise. For instance, on the 5th of December the Taliban raided one of the National Resistance Front’s hideouts. International Crisis Group, CrisisWatch, December 2021. In January 2022, fighting is still continuing and the intensity of violence remained stable. International Crisis Group, CrisisWatch, January 2021; Press ISW, ‘Afghanistan in review January 3-25, 2022’, Institute for the study of war, 31 January 2022. The following month, violence between the two sides intensified: the National Resistance Front increased its attacks and the Taliban carried out attacks on National Resistance Front bases, including airstrikes. International Crisis Group, CrisisWatch, February 2021; M. Vafaee, ‘Taliban ground and air attacks on National Resistance Front positions in Panjshir’, The Independent Persian, 21 February 2022.
In light of the foregoing, Afghanistan is party to a NIAC against the National Resistance Front.
Islamic State-Khorasan Province (IS-KP)
Established in 2015, the regional Khorasan branch of the Islamic State group (IS-KP) has claimed some of the major bomb attacks in several parts of the country in the past year that caused hundreds of casualties. UNAMA and OHCHR, Afghanistan: Annual Report 2016: Protection of Civilians in Armed Conflict, February 2017, p 50. Several hundred IS-KP militants have died in clashes with both against the Taliban and Afghan government forces. D. Azami, ‘IS in Afghanistan: How Successful Has the Group Been?’, BBC, 25 February 2017; B. Osman, ‘The Islamic State in “Khorasan”: How it Began and Where it Stands Now in Nangarhar’, Afghanistan Analysts Network, 27 July 2016. The United Nations recorded 23,712 security incidents during 2016, representing a five percent increase compared to 2015 and the highest number of incidents so recorded in a single year by the United Nations in Afghanistan since 2007. Of these, 63 % are recorded as armed clashes between government forces and the Taliban. Report of the Secretary-General, The Situation in Afghanistan and its Implications for International Peace and Security, UN doc A/71/826–S/2017/189, 3 March 2017, §13.
IS-KP has remained militarily active in Afghanistan. Notably, it conducts attacks against both civilians, members of the Afghan government, and Afghan troops. See, e.g., International Crisis Group, Crisis Watch, February 2018; International Crisis Group, Crisis Watch, July 2018; International Crisis Group, Crisis Watch, March 2019; International Crisis Group, Crisis Watch, July 2019. Furthermore, the group has been engaging in a NIAC against the Taliban as well. For instance, in April 2019, following more than a week of intense clashes between the two non-state actors in the eastern border province of Nangarhar, Afghan forces launched coordinated attacks against both groups. A. Qadir Sediqi and A. Sultan, ‘Afghan forces launch attacks to clear warring militants from east Afghanistan’, Reuters, 30 April 2019. On 21 August 2019, airstrikes conducted by the Afghan forces killed six members of IS-KP in Nangarhar province. ‘6 ISIS militants including 2 Pakistani nationals killed in Nangarhar airstrike’, Khaama Press, 21 August 2019.
In 2020, the armed activities of IS-KP have substantially decreased, although have not ceased. For instance, on 2 November the group attacked Kabul University and killed over 20 individuals and on 21 November it conducted a rocket attack in Kabul, which resulted in the death of eight people. Attacks continued in December 2020 and did not stop during the first months of 2021, thus suggesting an increased intensity of violence. International Crisis Group, Crisis Watch: Afghanistan.
As explained in the previous section, the Taliban took control of most of the country in August 2021, hence becoming the effective government. On 26 August, two blasts exploded at the airport in Kabul, causing the death of at least 100 people, including at least 13 U.S. service members and 90 Afghans. The attacks were followed by an assault by Islamic State gunmen. Y. Trofimov, N. A. Youssef, S. E. Rasmussen, ‘Kabul Airport Attack Kills 13 U.S. Service Members, at Least 90 Afghans’, The Wall Street Journal, 26 August 2021. On 29 August, the US reacted to the attack conducting a drone strike against ‘a vehicle carrying at least one person associated with the Afghan branch of the Islamic State group.’ ‘Afghanistan: US investigates civilian deaths in Kabul strike’, BBC, 29 August 2021.
Since the US left the country, it is not party to the conflict anymore. Since the Taliban are now the new effective government of Afghanistan, the NIAC between Afghanistan and the IS-KP is still ongoing, while the NIAC between the Taliban armed group and the IS-KP is over.
As for the NIAC between Afghanistan and the IS-KP, armed confrontations between the two sides continued. The UN reported 152 attacks by IS-KP in 16 provinces between August 2021 and December 2021. PTI, ‘UN recorded 152 attacks by ISIL-K in 16 provinces between Aug-Dec ’21, compared to 20 attacks a year ago: Secretary General’, The Economic Times, 4 February 2022; Report of the Secretary-General, ‘The Situation in Afghanistan and its Implications for International Peace and Security’, UN doc A/76/667-S/2022/64, 28 January 2022, §17. Following Taliban’s took over in Afghanistan, IS-KP became even more operational. Indeed, the number of direct confrontations between IS-KP and Taliban’ security forces increased in September 2021. International Crisis Group, CrisisWatch, September 2021. In October 2021, several attacks were carried out by IS-KP. For instance, on 8 October an attack took place at a Shiite mosque in Kunduz, which killed more than 40 civilians. International Crisis Group, CrisisWatch, October 2021; E. Ehsan and A. M. Latifi, ‘Blood and pieces: Kunduz residents describe blast aftermath’, Al Jazeera, 9 October 2021. On 15 October, IS-KP carried out another attack on a Shiite mosque in Kandahar city, where more than 50 civilians were killed. As a reaction, Afghan forces raided IS-KP hideouts in Kabul, Parwan, and Kunduz, where they killed both IS-KP fighters and members of their families, and arrested hundreds of IS-KP suspects. In addition, they increased checkpoints to limit freedom of movement between provinces. International Crisis Group, CrisisWatch, October 2021.
Attacks continued during the month of November, including an IS-KP attack on Sardar Daud Khan Military Hospital in Kabul, which killed at least 19 people. One of the victims was Taliban’s commander for Kabul’s military corps, Maulawi Hambdullah Mukhlis. International Crisis Group, CrisisWatch, November 2021; ‘Afghanistan: Deadly blasts, gunfire hit Kabul military hospital’, Al Jazeera, 3 November 2021. As a consequence, Afghan forces stepped up their fight against IS-KP, resulting in disappearances and extrajudicial killings across the country. On 10 November 2021, the Taliban reported that they had arrested 600 IS-KP suspects. This made UN Envoy to Afghanistan Deborah Lyons come to the conclusion that IS-KP has proliferated throughout the country. International Crisis Group, CrisisWatch, November 2021; J. Landay, ‘U.N. envoy says Islamic State now appears present in all Afghan provinces’, Reuters, 17 November 2021. No large-scale attacks have been reported since December, although IS-KP has continued its military operations. This trend continued in February, whereby the number of attacks by IS-KP has decreased. International Crisis Group, CrisisWatch, from December 2021 to February 2022.
It is worth recalling that this does not imply that international humanitarian law (IHL) ceases to be applicable. Indeed, IHL continues to be applicable regardless of oscillating intensity of violence, thus even when the intensity requirement is not met for a certain time. As specified by the ICRC ‘a lasting cessation of armed confrontations without real risk of resumption will undoubtedly constitute the end of a non-international armed conflict as it would equate to a peaceful settlement of the conflict, even without the conclusion or unilateral pronouncement of a formal act such as a ceasefire, armistice or peace agreement.’ ICRC Commentary to Article 3 GC (2016), §488.
The killing of Ayman al-Zawahiri by the US
On 2 August 2022, the US killed Ayman al-Zawahiri, the leader of al-Qaeda, in a drone strike conducted by the CIA in Afghanistan. A drone fired two missiles at Zawahiri while he was on the balcony of a safe house. R. Plummer and M. Murphy, ‘Ayman al-Zawahiri: Al-Qaeda leader killed in US drone strike’, BBC, 2 August 2022.
This event raises the question of targeted killing as first strike under IHL. A minoritarian view claims that, to trigger an IAC, a certain degree of intensity should be met, hence a single drone strike would not be sufficient to conclude that there is an IAC between the US and Afghanistan. See International Law Association Committee on the Use of Force, Final Report on the Meaning of Armed Conflict in International Law, 2010. Other scholars believe that a single strike can trigger an IAC. However, they disagree on the question as to whether IHL is applicable to that first strike. On the one hand, part of the scholarship posits that IHL is not applicable because the law of armed conflict is triggered only after the first instance of use of force between two states. Accordingly, the first strike would be covered by international human rights law (IHRL). See, e.g., A. Callamard, ‘The Targeted Killing of General Soleimani: Its Lawfulness and Why It Matters’, Just Security, 8 January 2020. On the other hand, other scholars affirm that the first strike immediately triggers the application of IHL and is therefore covered by this body of law. The ICRC supports this view: ‘[a]ny unconsented-to military operations by one State in the territory of another State should be interpreted as an armed interference in the latter’s sphere of sovereignty and thus may be an international armed conflict under Article 2(1).’ See ‘Article 2’, ICRC Commentary to the first Geneva Convention (2016). RULAC agrees with the ICRC that IHL is applicable also to the first strike between two states. The contrary view would lead to paradoxical consequences. For instance, the soldiers carrying out the drone strike would not be protected by the combatant immunity and would not be considered prisoners of war if captured. Furthermore, a number of IHL provisions regulate how to plan an attack, for instance the principle of precaution. A. Gurmendi, ‘Raising Questions on Targeted Killings as First Strikes in IACs’, Opinio Juris, 9 January 2020.
In light of the foregoing, the killing of Ayman al-Zawahiri triggered an instant IAC between the US and Afghanistan and IHL was applicable to the drone strike.
A series of indicative factors are used to assess whether armed groups exhibit the required degree of organization, such as the existence of a command structure and disciplinary rules and mechanisms, the ability to procure, transport, and distribute arms, the ability to plan, coordinate and carry out military operations, the ability to negotiate and conclude agreements, e.g. cease fire or peace agreements. If the criterion of a minimum organization of the armed group is not fulfilled, there is no armed conflict. For further information, see ‘non-international armed conflict - organization’ in our classification section.
In August 2021, the Taliban gained effective control over territory and population, hence becoming the new effective government for IHL purposes. Nevertheless, before that date they were an armed non-state actor, sufficiently organised to be party to a NIAC.
The Taliban had an organized command structure, generally rallied beneath a leader. This was most clear under the leadership of Mullah Omar. After his death, fighting within the Taliban initially broke out: a part of the group stayed with Mullah Akthar Muhammad Mansour while others broke away under the leadership of Mullah Mansour Dadullah. M Mashal, T. Shah, ‘Taliban’s New Leader in Afghanistan Moves to Quash Dissent’, The New York Times, 6 September 2015. This was followed by further parts of the group breaking away in separate incidents. S. Raghavan, ‘A new Taliban Breakaway Group Claims Support for Peace and Women’s Rights’, Washington Post, 8 November 2015 on a breakaway under Mohammad Rasool; S. Raghavan, ‘As the U.S. Mission Winds Down, Afghan Insurgency Grows More Complex’, Washington Post, 13 February 2015 on northern breakaway groups. However, the main group of Taliban has retained a structure, with a proclaimed leadership figure (currently Haibatullah Akhunzada), S. Qazi, ‘Afghan Taliban: Haibatullah Akhunzada Named New Leader’, Al Jazeera, 26 May 2016 appointed governors for Afghanistan’s regions and a military command structure. B. Roggio, ‘The Afghan Taliban’s Top Leaders’, The Long War Journal, 23 February 2010; Stanford University, The Taliban, Mapping Military Organizations, last updated 15 July 2016, enumerates leadership figures over the years.
The Taliban dispose of a strong operational capacity. A. Worsnop, ‘From Guerilla to Maneuver Warfare: A Look at the Taliban’s Growing Combat Capability’, Modern War Institute, 26 February 2019. They were capable of launching large-scale attacks on big cities such as the regional capitals of Helmand and Kunduz, and even to hold territory. By September 2018, 14 districts in Afghanistan were under their control, while additional districts remain disputed between the Taliban and the Afghan government. Report of the Secretary-General, The Situation in Afghanistan and its Implications for International Peace and Security, UN doc A/71/826–S/2017/189, 3 March 2017. §13. Areas controlled include parts of the Farah province and large parts of the Helmand province, such as Dishu. B. Roggio, A. Gutovsky, ‘Mapping Taliban controlled and contested districts in Afghanistan: LWJ vs US military assessments’, Threat Matrix, 8 September 2018. In November 2018, the Afghan government was estimated to control only 72 % of the country’s territory. K. Fox, ‘Taliban control of Afghanistan on the rise, US inspector says’, CNN, 8 November 2018. The Taliban conducted abductions and establish parallel justice structures in controlled territories. UNAMA and OHCHR, Afghanistan: Annual Report 2016: Protection of Civilians in Armed Conflict, February 2017, p 68.
The Taliban were able to speak with one voice and to participate in the negotiations of agreements. They regularly issued declarations of responsibility on their website or via Twitter. They also released public statements on issues such as the protection of civilians and civilian objects, reports on casualties and answers to UNAMA reports. They claimed to have put in place an institution to record casualties. UNAMA and OHCHR, Afghanistan: Annual Report 2016: Protection of Civilians in Armed Conflict, February 2017, p 75ff, Annex 6. The Afghan government repeatedly negotiated with the Taliban. For instance, in 2012, it backed the opening of an office by the Taliban in Doha in order to conduct peace talks. Informal peace talks were held in Qatar between Taliban and Afghan officials in 2015 ‘Afghanistan Profile – Timeline’, BBC, 8 March 2017 and 2016 T.Khan, ‘Afghan Taliban Consider Options on Resuming Talks', The Express Tribune, 24 November 2016. The Taliban attended formal peace talks for the first time in Moscow in November 2018. ‘Afghanistan war: Taliban attend landmark peace talks in Russia’, BBC, 9 November 2018. The United Nations implicitly supported peace talks with the Taliban. In particular, with the adoption of UNSC Res 1988 (2011), the Security Council split up the sanctions regime established by UNSC Res 1267 (1999) into two different regimes, one targeting the Taliban and one targeting al-Qaeda and the Islamic State group. The de-linking of the sanctions against the Taliban from the al-Qaeda sanctions regime was meant to support the Afghan government’s peace and reconciliation process with the Taliban. ‘UN Delinks al-Qaeda-Taliban sanctions’, Al Jazeera, 17 June 2011.
The Taliban claimed that they dispose of an internal disciplinary mechanism, as one of their institutions allegedly investigates cases of civilian casualties, forwards them to ‘Military Courts’ and punishes those guilty according to Sharia Law. They also affirmed to organize reconciliatory meetings with families of victims. UNAMA and OHCHR, Afghanistan: Annual Report 2016: Protection of Civilians in Armed Conflict, February 2017, p 77. The Taliban adopted a code of conduct based on Islamic Law which contains rules on the conduct of hostilities. ‘Taliban Issues Code of Conduct’, Al Jazeera, 28 July 2009; M. Munir, ‘The Layha for the Mujahideen: an Analysis of the Code of Conduct for the Taliban Fighters under Islamic Law’, 93 International Review of the Red Cross 881 (2011). While these rules do not necessarily coincide with those posed by international humanitarian law, they show the group’s capacity to have standards applicable to their fighters.
Since the Taliban took over the power in Afghanistan in August 2021, they became de facto the effective government of Afghanistan. In this capacity of government, they are presumed to fulfil the organizational criterion.
National Resistance Front of Afghanistan (NRF)
NRF was created in the Panjshir Vally in Afghanistan by Amrullah Saleh and Ahmad Massoud (Son of Ahmad Shah Massoud, who led the resistance movement against the Taliban in the 1990’s) as an answer to the rise of the Taliban. B. Roggio, ‘After fall of Kabul, resistance to Taliban emerges in Panjshir’, Long War Journal, 18 August 2022; N. Kohzad, ‘What does the National Resistance Front of Afghanistan have to offer?’, The Diplomat, 15 December 2021. They consider themselves to be the only legitimate resistance group, aiming for an inclusive government in Afghanistan, and its members are characterised by a variety of different backgrounds. M. Rosenberg, A. Kramer and F. Fassihi, ‘An old bastion of anti-Taliban sentiment girds for a new fight’, The New York Times, 30 August 2021. Their forces consist of local militias from the Panjshir Valley, newly recruited people, and forces loyal to the ousted government. ‘Rebels hold out in Afghan valley as Taliban set up government in Kabul’, Reuters, 2 September 2021; P. Bergen, ‘The leader of the anti-Taliban resistance speaks out’, CNN, 1 September 2021.
The National Resistance Front dispose of an organized command structure with two leadership figures: Amrullah Saleh and Ahmad Massoud. Within this structure, they have specific functions going from spokesmen to a head of foreign relations (currently this position is in the hands of Ali Maisam Nazary) and multiple military commanders. ‘Anti-Taliban leader Ahmad Masoud invited to European Parliament’, A News, 15 September 2021; ‘Leader of Afghan resistance front is now in Tajikistan – spokesman’, Tass, 1 November 2021; N. Kohzad, ‘What does the National Resistance Front of Afghanistan have to offer?’, The Diplomat, 15 December 2021; ‘NRF starts its offensive attacks by the end of the winter’, Aamaj News, 20 January 2022.
This hierarchical structure enables them to speak with one voice, which is also reflected in their way of communicating. Through social media such as twitter, they regularly disseminate statements aimed at their members and also try to rally the international community behind them. This is also reflected by their capacity to enter into negotiations and conclude agreements. ‘Afghan resistance front propose transitional government to Taliban in Tehran talks’, ANI, 12 January 2022; International Crisis Group, CrisisWatch, January 2021. Russia has expressed its willingness to act as a mediator between NRF and Taliban. D. R. Chaudhury, ‘Russia desire to mediate between the Taliban and National Resistance Front’, The Economic Times, 2 February 2022.
The armed confrontations conducted against the Afghan army illustrate that the NRF is capable of planning, coordinating and carrying out military operations. This conclusion finds support in the report of the UN Secretary-General on ‘The situation in Afghanistan and its implications for international peace and security’, pointing in particular at several attacks attributable to the National Resistance Front. Report of the Secretary-General, ‘The Situation in Afghanistan and its Implications for International Peace and Security’, UN doc A/76/667-S/2022/64, 28 January 2022, §15. Moreover, their head of foreign relations, stated in December that they have a specific strategy, both political and military. N. Kohzad, ‘What does the National Resistance Front of Afghanistan have to offer?’, The Diplomat, 15 December 2021. The recent increase of attacks by the National Resistance Front seems to confirm these statements, which demonstrates the organizational ability of the National Resistance Front. However, they have not been able to gain and hold territory.
The National Resistance Front claims to have several bases in Panjshir Valley, Parwan, Kapisa, Badakhshan, Balkh and Takhar that are protected by both ground and aerial forces. N. Kohzad, ‘What does the National Resistance Front of Afghanistan have to offer?’, The Diplomat, 15 December 2021. From February, the Taliban launched several large-scale military operations against National Resistance Front forces, including for the first time an aerial attack. International Crisis Group, CrisisWatch, February 2021; M. Vafaee, ‘Taliban ground and air attacks on National Resistance Front positions in Panjshir’, The Independent Persian, 21 February 2022. This indicates at least a significant presence of their forces in those regions. Moreover, the National Resistance Front is using Dushanbe (Capital of Tajikistan) ‘as a base to plan their next steps’. N. Astrasheuskaya, ‘How Tajikistan became a hub for Afghanistan’s resistance’, The Irish Times, 29 September 2021. This might lead to the conclusion that the National Resistance Front has headquarters from where they lead the organization. Nevertheless, this still remains unclear.
In sum, the NRF meets the organization requirement and is therefore party to a NIAC against the Afghan government.
Islamic State-Khorasan Province (IS-KP)
The regional Khorasan branch of the Islamic State group (IS-KP) was created in Pakistan in 2014. In 2015, it extended its military operations to Afghanistan, specifically to the Khorasan region. It was founded by Hafiz Saeed Khan, who was killed by the US during an airstrike in Nangarhar province, Afghanistan, on 26 July 2016. In 2016, the leadership of IS-KP fractured into the Afghan and the Pakistani factions. Since then, the group has changed a number of leaders, who were all eliminated by US strikes. Most recently, in September 2020, ISKP appointed Shahab al-Muhajir as its new chief in Afghanistan. The mid-level leadership is organized in commanding small squads, composed of 10–20 men, with specialised positions, for instance bomb-maker or with judicial functions. Islamic State Khorasan (IS-K), Center for Strategic and International Studies, 9 November 2018; A. Sayed, ‘Who Is the New Leader of Islamic State-Khorasan Province?’, Lawfare, 2 September 2020; C. Garret Jonson, The Rise and Stall of the Islamic State in Afghanistan, United States Institute for Peace, Special Report 395, November 2016.
IS-KP is in contact with the Islamic State leadership both in Iraq and Syria and receives funding from the Islamic State’s Central Command. It has been reported that its recruit strategy consists in ‘face-to-face outreach, education and preaching (dawah), and intelligence gathering’, which are the same means that the Islamic State has used in Syria from 2012. IS-KP is issuing official statements and acknowledgements of attacks, communicating through social media and radio broadcasts. C. Garret Jonson, The Rise and Stall of the Islamic State in Afghanistan, United States Institute for Peace, Special Report 395, November 2016; D. Azami, ‘IS in Afghanistan: How Successful Has the Group Been?’, BBC, 25 February 2017.
From 2001 until 2014, the North Atlantic Treaty Organization (NATO) commanded the International Security Assistance Force (ISAF) in Afghanistan, whose mission was to help the Afghan government provide effective security in the country. During that time, NATO and the troop contributing states were a party to the conflict, see A. Bellal (ed), The War Report. Armed Conflict in 2014, Oxford University Press, p 118. After the official end of this mission, since 2015 some 13,000 NATO troops have remained in Afghanistan under operation Resolute Support in order to train, assist and advice Afghan security f
All parties to the conflict are bound by Article 3 common to the 1949 Geneva Conventions that provides for the minimum standard to be respected and requires humane treatment without adverse distinction of all persons not or no longer taking active part in hostilities. It prohibits murder, mutilation, torture, cruel, inhuman and degrading treatment, hostage taking and unfair trials. Moreover, all parties are bound by customary international humanitarian law applicable to non-international armed conflict. Customary international law consists of unwritten rules that come from a general practice accepted as law. Based on an extensive study, the International Committee of the Red Cross maintains a database on customary international humanitarian law.
Afghanistan is also a party to the 1977 Additional Protocol II to the 1949 Geneva Conventions. According to Article 1 Additional Protocol II, this treaty is applicable to non-international armed conflicts taking 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’. However, at the moment it does not seem applicable to the NIACs.
In addition to international humanitarian law, international human rights law continues to apply during times of armed conflict. Under human rights law, the territorial state has an obligation to prevent and to investigate alleged violations, including by non-state actors.
It should be recalled that, even if the Taliban are now in power, existing IHL obligations of Afghanistan still apply by virtue of the principle of the continuity of the State.