Since 2021, Kyrgyzstan and Tajikistan have engaged in a number of separate international armed conflicts, as armed forces have exchanged fire at the border. The last IAC took place on 14-18 September 2022.
For an international armed conflict to exist, there must have been a resort to armed force involving at least two states. Under an expansive view, there is an international armed conflict when states carry out military operations directed against non-state armed groups in the territory of another state without the latter’s consent, regardless of whether or not the territorial state responds with armed force or whether there are actual clashes between the two states’ armed forces. Albeit controversial, the RULAC project adopts this position. Unlike for non-international armed conflicts, there is no requirement for the violence to reach a certain threshold for international armed conflicts. For further information see the Classification section.
Kyrgyzstan and Tajikistan are two formed soviet countries that gained independence in 1991 with the fall of USSR. The delimitation of the border caused tensions since the two countries reached independence, as the two countries used to enjoy ‘common property rights to access and use natural resources under the system of land tenure based on property rights backed up by Soviet state authorities.’ More than one-third of the two countries’ 1.000km border remains disputed. G. Kurmanalieva, ‘Kyrgyzstan and Tajikistan: Endless Border Conflicts’ (2018) 1 L’Europe en Formation, 121-130.
On 28 April 2021, Kyrgyzstan and Tajikistan exchanged fire at the border between the two countries. At least 55 people were killed, while more than 40.000 civilians were displaced. In the following days fighting continued, until in May the two countries signed a ceasefire agreement. Nevertheless, in July clashes between Tajik and Kyrgyz border guards killed one Kyrgyz serviceman. "Four die as Tajikistan and Kyrgyzstan armies clash on disputed border", The Guardian, 29 April 2021; "Kyrgyz border guard killed in shootout with Tajik forces", The Times of India, 9 July 2021. This instance amounts to a single armed conflict, which ended in July when the two countries stopped fighting.
On 14 June 2022, a Tajik soldier was killed during fighting between Kyrgyz and Tajik armed forces at the border between the two countries. On 14 September 2022, fighting broke out again at the border between the two countries. Tajik sources affirm that ‘Kyrgyz border guards opened unprovoked gun and mortar fire on their outpost, killing one border guard and injuring another two.’ On 16 September, the two parties agreed to a ceasefire, however violence did not stop between Kyrgyzstan and Tajikistan and violence has further escalated in the following days. On 18 September death toll raised to nearly 100 casualties, while further 139 people have been wounded. 136.000 people were evacuated from Kyrgyz villages close to the border with Tajikistan. https://www.aljazeera.com/news/2022/6/14/tajik-soldier-killed-in-tajikistan-kyrgyzstan-border-shootout" target="_blank">‘Tajik soldier killed in Tajikistan-Kyrgyzstan border shoot-out’, Al Jazeera, 14 June 2022; ‘Clash erupts between Kyrgyzstan and Tajikistan border guards’, Al Jazeera, 14 September 2022; ‘Kyrgyzstan, Tajikistan border clash resumes and spreads’, Eurasianet, 16 September 2022; ‘Death toll rises to 81 in Tajikistan-Kyrgyzstan border clashes’, Al Jazeera, 18 September 2022.
While for years fighting has been limited to a few isolated episodes, fighting in September 2022 has reached unprecedented levels of violence and it does not seem to deescalate. These instances of use of force amount to IACs and therefore IHL is applicable. Indeed, as specified by the ICRC: ‘[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).’ ICRC Commentary to the first Geneva Convention, Article 2 (2016). It should be noted 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. Therefore, fighting in September amounts to a new IAC.
On 17 September 2022, a ceasefire agreement was concluded between Kyrgyzstan and Tajikistan. Since 18 September, no fighting has been reported. On 3 October, the delegations of Kyrgyzstan and Tajikistan held talks in Min-Oruk village, Samarkandek rural municipality, in Kyrgyzstan. ‘Kyrgyzstan-Tajikistan border clashes claim nearly 100 lives’, BBC, 19 September 2022; ‘Delegations of Kyrgyzstan, Tajikistan hold talks’, AKI Press, 4 October 2022. An IAC ceases to exist when there is ‘general close of military operations’ without risk that fighting will resume. Based on the short-lived conflicts that have taken place in the previous years, it seems possible to conclude that the conflict ended on 18 September 2022. Geneva Cconvention IV, Article 6(2) and (3); Additional Protocol I, Article 3(b).
Both Kyrgyzstan and Tajikistan are parties to the four 1949 Geneva Conventions and to the 1977 Additional Protocol I applicable to international armed conflicts. Furthermore, they are bound by customary international humanitarian law applicable to international armed conflicts. 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. In addition to international humanitarian law, international human rights law continues to apply during times of armed conflict.