Our Rule of Law in Armed Conflict (RULAC) online portal has been monitoring and classifying situations of armed violence that are taking place in Afghanistan, using the definition of armed conflict under international humanitarian law (IHL).
Until recently, we classified the following three non-international armed conflicts (NIACs) in the country:
- A NIAC between the former governments of Afghanistan led by Ashraf Ghani – supported by US troops – and the Taliban – an organized armed group at the time.
- A NIAC between the former government of Afghanistan and the Khorasan province branch of the Islamic State group (IS-KP)
- A NIAC between the Taliban – an organized armed group at the time – and the IS-KP.
Following the withdrawal of US troops and the fact that the Taliban gained effective control over most of the country, including Kabul, we revised this classification.
Who is the Afghan Government? : The IHL Perspective
On 7 September 2021, the Taliban announced the formation of an interim government led by Mohammad Hasan Akhund.
‘Under IHL, the majoritarian view posits that the government needs to exercise effective control in order to represent the state, a position confirmed by the International Committee of the Red Cross in its Commentary to the Geneva Conventions. As such, the recognition of the Afghan government by other states and questions regarding its legitimacy are not relevant for IHL purposes, as this body of law adopts a pragmatic approach and focuses on the actual situation on the ground’ explains Dr Chiara Redaelli, Research Fellow at the Geneva Academy.
‘In light of the information at our disposal, and based on IHL – which is the body of law we refer to on RULAC – we concluded that the Taliban are now the effective government. Indeed, they are exercising effective control over the overwhelming majority of the country and seem to exercise functions usually assigned to a government. The fact that there are still contested areas does not prevent to conclude that the Taliban’s control is sufficient’ she adds.
Implications for the Classification and Open Questions
As such, and given that the Taliban became the effective government of Afghanistan, the following armed conflicts are taking place in the country according to our RULAC online portal:
- A NIAC between the Taliban government against the National Resistance Front (loyal to the former government)
- A NIAC between the Taliban government and the IS-KP.
‘One of the main questions we had to address was whether the previous NIAC between the Taliban armed group and the former Afghan government continues as a NIAC between the National Resistance Front (loyal to the former government) and the Taliban (representing now Afghanistan), or whether this NIAC is now over’ explains Dr Redaelli.
‘This question is open to debate and IHL does not provide clear answers. Our views are that the fighting (if any) between the National Resistance Front and the Taliban government should be considered as a continuation of the previous NIAC. This being said, the question whether the National Resistance Front is sufficiently organized remains open and we do not have enough information to make this assessment. It seems therefore premature to declassify the situation of violence and we therefore concluded that, for the time being, the Taliban government is engaging in a NIAC against the National Resistance Front’ she adds.