For decades, Afghanistan has been mired in conflict. Supported by the United States, the Afghan National Security Forces (ANSF) continue to fight against the Taliban and the Khorasan province branch of the Islamic State group (IS-KP).
There are multiple and overlapping non-international armed conflicts in Afghanistan.
- The Afghan government is party to a non-international armed conflict (NIAC) against the Taliban. See also‘Afghanistan Profile – Timeline’, BBC, 31 January 2018.
- 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 Afghan government. D. Azami, ‘IS in Afghanistan: how successful has the group been?’, BBC, 25 February 2017.
- Furthermore, there is 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).
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.
In Afghanistan, frequent and intense confrontations between governmental forces and armed groups have been ongoing for decades. During 2016, the Taliban have launched major attacks on important cities, such as the regional capitals of Helmand and Kunduz. In 2017, smaller attacks were carried out almost daily, including in the capital Kabul. 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 IISS Armed Conflict Database reported 82 incidents of armed clashes and other violent incidents between the different factions in March 2017, 74 in February 2017, 62 in January 2017 and 71 in December 2016. See the IISS Armed Conflict Database (restricted access).
The number of casualties (deaths and injuries) in Afghanistan remains high and has been increasing in recent years. UNAMA and OHCHR, Afghanistan: Annual Report 2016: Protection of Civilians in Armed Conflict, February 2017, p 3ff and p 39; UNAMA and OHCHR, Afghanistan: Protection of Civilians in Armed Conflict. Midyear Report 2017, July 201, pp 31 ff. N. C. Crawford, Update on the Human Costs of War for Afghanistan and Pakistan, 2001 to mid 2016, Costs of War, Brown University, August 2016; p 2ff; A. Bellal, The War Report. Armed Conflicts in 2016, Geneva Academy of International Humanitarian Law and Human Rights, March 2017, p 55ff; J. Serle, ‘Afghan Airstrikes Killed and Injured Record Number of Civilians in 2016’, The Bureau of Investigative Journalism, 6 February 2017. The armed conflict has an enormous impact on the population. According to a study conducted by the International Committee of the Red Cross in 2009, 96% of the Afghan population has been impacted by the armed conflict. A majority of participants in the study reported having lost their home and/or livelihood. Almost half had lost at least one member of their family. See Ipsos/ICRC, Afghanistan. Opinion Survey and In-Depth Research, December 2009.
The number of civilians displaced by the conflict remains high and has constantly risen in the past years. UNHCR has reported that ‘some 4.6 million Afghans remain uprooted globally – including some 2.7 million registered as refugees, and another two million displaced inside Afghanistan.’ In 2015, more than 300,000 new refugees were registered. In 2016, the number of new refugees registered by the United Nations High Commissioner for Refugees (UNHCR) and the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) rose to more than 600000, see UNAMA and OHCHR, Afghanistan: Annual Report 2016: Protection of Civilians in Armed Conflict, February 2017, p 36ff. During the first four months of 2017, 90,000 more persons are reported to have become displaced: ‘Nearly 90,000 Afghans Displaced in 2017, Says UN’, Al Jazeera, 10 May 2017.
In light of the frequency of armed confrontations, the number of casualties, and the number of people displaced by the fighting, the required threshold of intensity of violence is met at least for the Taliban and the Islamic State-Khorasan Province (IS-KP), as it will be further explained in the following paragraphs.
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, US President Bush launched a military intervention in Afghanistan in October 2001. The intervention caused the topple of the Afghan government. Since then, the Taliban has been engaging in a NIAC against Afghan 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.
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. Notably, 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. 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 the 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 first ceasefire since the beginning of the conflict was announced by both parties with the end of celebrating Eid al-Fitr. 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.
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 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 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. However, this does not imply that the NIAC is over. Indeed, it is worth recalling that a non-international armed conflict ‘continues until a peaceful settlement is achieved.’ ICTY, Prosecutor v Haradinaj et al., Judgment, IT-04-84, 3 April 2008. Accordingly, IHL continues to be applicable regardless of oscillating intensity of violence, thus even when the intensity requirement is not met for a certain time.’
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.
The Taliban have 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 are 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 conduct 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 are able to speak with one voice and to participate in the negotiations of agreements. They regularly issue declarations of responsibility on their website or via Twitter. They also release public statements on issues such as the protection of civilians and civilian objects, reports on casualties and answers to UNAMA reports. They claim 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 has 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 have 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 claim 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 claim to be organizing 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 have 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.
Apart from the Taliban, a number of small armed groups is fighting against the Afghan government. Most important among these is the Haqqani Network, which commands relatively few fighters, but is fighting resiliently. H. Nawaz Khan and P. Constable, ‘A Much–Feared Taliban Offshoot Returns from the Dead’, The Washington Post, 19 July 2017; J.A. Dressler, Afghanistan Report 6 –– The Haqqani Network: From Pakistan to Afghanistan, Institute for the Study of War, October 2010; J. Dressler, Afghanistan Report 9 –– The Haqqani Network: A Strategic Threat, Institute for the Study of War, March 2012. It is closely linked to the Taliban forces. M. Mashal, ‘Haqqanis Steering Deadlier Taliban in Afghanistan, Officials Say’, The New York Times, 7 May 2016.
Until September 2016, the Hezb-e-Islami group was a further party to the conflict. They were involved in the armed conflict since the Soviet invasion under the leadership of Gulbuddin Hekmatyar. A. Bellal, The War Report. Armed Conflicts in 2016, Geneva Academy of International Humanitarian Law and Human Rights, March 2017, p 41. In 2016, they signed a peace deal with the Afghan government and have since stopped participating in active hostilities. ‘Afghanistan: Hezb-i-Islami Armed Group Signs Peace Deal’, Al Jazeera, 22 September 2016; ‘Afghanistan: Ghani, Hekmatyar Sign Peace Deal’, Al Jazeera, 29 September 2016.
Some people claim that al-Qaeda is still involved in the armed conflict as well. L. McNally, M.G. Weinbaum, A Resilient Al-Qaeda in Afghanistan and Pakistan, Middle East Institute Policy Focus Series, August 2016; N.P. Walsh, ‘Al Qaeda "Very Active" in Afghanistan: US Commander’, CNN, 13 April 2016; B. Roggio, ‘Afghanistan’s Terrorist Resurgence: Al Qaeda, ISIS and Beyond’, The Long War Journal, 27 April 2017. However, even these reports claim only the existence of a relatively small number of al-Qaeda fighters still being present, and no active engagement in hostilities. They cannot be considered a party to the conflict. See also A. Bellal, The War Report. Armed Conflicts in 2016, Geneva Academy of International Humanitarian Law and Human Rights, March 2017, p 22.
On the other side, the Afghan government is supported by militias fighting against these armed groups. M. Mashal, ‘Afghan Vice President Raises Concerns by Turning to Militias in Taliban Fight’, The New York Times, 18 August 2015; L. Cesaretti, ‘Afghanistan’s Militias: The Enemy Within?’, The Diplomat, 04 January 2017; ‘Afghanistan Funds Abusive Militias as US Military “Ignores” Situation, Officials Say', The Guardian, 26 December 2016.
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 forces. NATO also provides funding to Afghanistan. North Atlantic Treaty Organization, NATO and Afghanistan, 13 October 2016; North Atlantic Treaty Organization, Resolute Support Mission in Afghanistan, 13 October 2016. The Resolute Support Mission is a non-combat operation. North Atlantic Treaty Organization, NATO and Afghanistan, 13 October 2016. Accordingly, NATO and the troop contributing countries are no longer a party to the conflict. Note that this point is debatable, yet for the reasons explained in the following paragraphs, RULAC concluded that only the US is a party to the conflict. In contrast, the United Nations Assistance Mission in Afghanistan considers that ‘international military forces’ are a party to the conflict in Afghanistan. The term ‘international military forces’ includes ‘all foreign troops forming part of NATO-led Operation Resolute Support and other US Forces Afghanistan’. Moreover, the ‘Commander of Resolute Support also serves as Commander of US Forces Afghanistan, although the chains of command remain separate.’ See UNAMA and OHCHR, Afghanistan: Protection of Civilians in Armed Conflict Annual Report 2016, February 2017, pp 100, 108 and 110; UNAMA and OHCHR, Afghanistan: Protection of Civilians in Armed Conflict. Midyear Report 2017, July 2017 pp 62, 69 and 70.
The United States
Alongside troops contributed to NATO’s Resolute Support mission, the United States of America separately maintain forces in Afghanistan in order to conduct ‘counter-terrorism’ operations. J.W. Nicholson, Statement for the Record Before the Senate Armed Services Committee on the Situation in Afghanistan, Stenographic Transcript Before the Committee on Armed Services United States Senate, 9 February 2017, p 2. Contrary to the NATO mission, these forces are not present purely to advise and assist, but also to conduct operations against al-Qaeda and its associates and IS-K.
The US does not describe these operations as involvement in the armed conflict, but as engagement in counter-terrorism strikes specifically aimed at protecting the U.S. from terrorist attacks. J.W. Nicholson, Hearing to Receive Testimony on the Situation in Afghanistan, Stenographic Transcript Before the Committee on Armed Services United States Senate, 9 February 2017, pp 37, 38, 41; 78. However, the qualification made by a state is not determinative for its participation in an armed conflict. Instead, the factual circumstances count. For further information, see ‘classification of armed conflicts – classification based on legal criteria and facts’ in our classification section. See also the following section on views of the parties to the conflict. The U.S. forces increasingly carry out air strikes. J. Serle, ‘Afghan Airstrikes Killed and Injured Record Number of Civilians in 2016’, The Bureau of Investigative Journalism, 6 February 2017; M. Landler, ‘Obama Says He will Keep More Troops in Afghanistan Than Planned’, The New York Times, 6 July 2016. These cause an important number of casualties, including high-level members of armed groups. ‘US Confirms Death of ISIL Leader in Afghanistan’, Al Jazeera, 7 May 2017. The U.S. has deployed around 1,500 members of its armed forces under direct Pentagon command independently from the NATO mission. ‘NATO Chief, Merkel to Discuss Afghan Troop Increase’, Al Jazeera, 11 May 2017. Attacks are carried out with heavy weaponry, such as the use of the its largest non-nuclear bomb in 2017. ‘Afghanistan: Scores of ISIL Fighters Dead in MOAB Raid’, Al Jazeera, 15 April 2017. The violence between the U.S. and the armed groups reaches the necessary level of intensity for them to become a party to the conflict. Alternatively, under the ‘support-based approach’ proposed by the International Committee of the Red Cross, T. Ferraro, ‘The Applicability and Application of International Humanitarian Law to Multinational Forces’, 95 International Review of the Red Cross 891/892 (2013), 583 the U.S. could also be qualified as a party to the conflict. See also J. Aparac, ‘L’attaque sur l’hôpital MSF à Kunduz: Quelles voies réalistes pour une justice effective?', La Revue des Droits de l’Homme, Février 2016, paras 10-13; N. Weizmann, ‘The End of Armed Conflict, the End of Participation in Armed Conflict, and the End of Hostilities: Implications for Detention Operations Under the 2001 AUMF’, 47 The Columbia Human Rights Law Review 3 (2016), pp 225-236; N. Weizmann, ‘Why U.S. being a Party to Armed Conflict in Afghanistan May Not End Soon’, Just Security Blog, 7 January 2015. Since the intervention takes place with the consent of the Afghani government, the conflict continues to be classified as a non-international armed conflict. See ‘contemporary challenges –relevance of consent’ in our classification section.
Views of parties to the conflict and international community
There is generally consensus that following the establishment of the new Afghan government in 2002, the conflict in Afghanistan changed from an international armed conflict to a non-international armed conflict.
According to the United Nations Assistance Mission in Afghanistan (UNAMA), ‘the armed conflict in Afghanistan is a non-international armed conflict between the Government of Afghanistan and its armed forces (Afghan national security forces supported by international military forces…) and non-State armed opposition groups’. UNAMA and OHCHR, Afghanistan: Protection of Civilians in Armed Conflict Annual Report 2016, February 2017, p 100; UNAMA and OHCHR, Afghanistan: Protection of Civilians in Armed Conflict. Midyear Report 2017, July 2017, p 62. For the reasons explained in the previous section, RULAC only consider the US to be a party to the conflict. The same conclusion was reached by the Office of the Prosecutor of the International Criminal Court, The Office of the Prosecutor, Report on Preliminary Examination Activities 2016, 14 November 2016, §197. the International Committee of the Red Cross, L. Cameron, B. Demeyere, J-M. Henckaerts, E. La Haye and I. Müller, with contributions by C. Droege, R. Geiss and L. Gisel, ‘Article 3: Conflicts Not of an International Character’, ICRC, Commentary on the First Geneva Convention, 2016, §400. the Special Rapporteur on Extrajudicial, Summary or Arbitrary Killings, Report of the Special Rapporteur of the Human Right Council on Extrajudicial, Summary or Arbitrary Executions, UN Doc. A/HRC/11/2/Add.4, 6 May 2009 §1. and scholarly sources A. Bellal, G. Giacca, S. Casey-Maslen, ‘International law and armed non-state actors in Afghanistan’, 93 International Review of the Red Cross 881 (2011) 51. as well as states. For instance, concerning Germany, see C. Schaller, ‘Military Operations in Afghanistan and International Humanitarian Law’, German Institute for International and Security Affairs, March 2010, p 2.
Despite repeatedly highlighting that active combat missions are over in Afghanistan, U.S. officials have also acknowledged that ‘as a matter of international law, the United States remains in an armed conflict against al Qaeda, the Taliban, and associated forces, and against ISIL.’ Enhancing Security and Stability in Afghanistan, Department of Defense, Report to Congress in Accordance with Section 1225 of the Carl Levin and Howar P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 (P.L. 113-291), as amended, December 2016 p 9. Similarly, the Department of Justice has repeatedly argued that the fighting continues to a sufficient level to justify the on-going detention of enemy fighters, see C. Savage, ‘U.S.-Taliban Fight Goes On, So Guantanamo Detainee Stays, Court Says’, The New York Times, 30 July 2015; United States District Court for the District of Columbia, Mukhtar Yahia Naji Al-Warafi v Barack H. Obama et al, available on Lawfare, 17 April 2015, p 20ff. For a thorough analysis of the question of the classification of the US operations in Afghanistan from both an international humanitarian law perspective and a US constitutional law perspective, see N. Weizmann, ‘The End of Armed Conflict, the End of Participation in Armed Conflict, and the End of Hostilities: Implications for Detention Operations Under the 2001 AUMF’, 47 The Columbia Human Rights Law Review 3 (2016), pp 225-236.
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.
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’. As discussed in the classification section, the Taliban have an established command structure and control a considerable amount of the Afghan territory, hence Additional Protocol II is applicable to the fight between them and the Afghan government. It could also apply to the fight between the Afghan government and other armed groups identified above whenever they are sufficiently organized and hold territory. In addition, Additional Protocol II arguably also applies to foreign states that are a party to the conflict with the Taliban and have ratified Additional Protocol II: Additional Protocol II applies to ‘all armed conflicts’ that are not covered by Article 1 of Additional Protocol I which take place ‘in the territory of’ a State party ‘between its armed forces and dissident armed forces and other organized armed groups …’. This applies the provisions of the Protocol to the relevant armed conflict as a whole, not only to the armed forces of the State on whose territory the conflict is ongoing as well as the dissident armed forces or other organized armed groups fighting against those government armed forces. However, the US is not a party to Additional Protocol II. For the applicability of Additional Protocol II to non-territorial states, see A. Bellal (ed) The War Report. Armed Conflict in 2014, Oxford University Press, 2015, p 120 and A. Bellal, G. Giacca and S. Casey-Maslen, ‘International Law and Armed Non-State Actors in Afghanistan’ 93 International Review of the Red Cross 881 (2011) 56ff.
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.
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. Non-state armed groups are increasingly considered to be bound by international human rights law if they exercise de facto control over some areas, such as the Taliban.
Afghanistan is party to the Rome Statute since 2003, enabling the International Criminal Court (ICC) to exercise its jurisdiction and prosecute perpetrators for violations of international criminal law occurring in Afghanistan. The ICC’s Office of the Prosecutor is currently conducting a preliminary examination into possible international crimes committed by all parties to the armed conflict. The Office of the Prosecutor, Report on Preliminary Examination Activities 2016, 14 November 2016, p 43ff.