US-Taliban Peace Agreement: State Engagement With Non-State Actors Under International Law

This article analyzes the legal basis of the peace agreement concluded between the United States and Taliban towards achieving peace in Afghanistan.[1]

It is the primary purpose of public international law to regulate relations between states. When a state is officially recognized under international law, it acquires certain international rights and obligations. The essential elements of being recognized as a state include having a territory, a government, a population to govern over and the capability to engage with other states, as enshrined in the Montevideo Convention on the Rights and Duties of States.[2]

After World War I, the international community started to grow and more actors of international law began to surface. Public international law is and will remain state-centered, however, many non-state actors (entities which do not fall into the category of state) have been surfacing over time as well and require international rules to regulate their conduct. The broad term can include non-governmental organizations, rebels, national liberation movements, individuals, ‘peoples’, terrorist organizations, and others. What is important to underline here is that several non-state actors can possess some form of legal capacity under international law and may also have certain rights and duties attributed to them. While states possess complete legal capacity, the legal capacity of non-state actors depends on the function they perform.[3]

International law allows states to make agreements amongst themselves[4] as well as between states and international organizations and among international organizations themselves.[5] If a state violates its obligations, it is responsible under international law[6] and can be subject to international litigation before the International Court of Justice (ICJ) or any other international court or tribunal.[7]

To bring peace to Afghanistan, a historic agreement was concluded on February 29, 2020, between the United States of America and the Islamic Emirate of Afghanistan, which is not recognized by the United States as a state in itself and is instead referred to as the Taliban.

Even though laws do exist to address the breach of an international obligation by international organizations,[8] non-state actors are not limited to international organizations and states may still be compelled to make agreements with them in order to end the conflicts that they have been engaged in spanning many years, just as the United States decided to directly engage in dialogue with the Taliban in Afghanistan to reach an agreement.

Let us consider the legality of such an agreement and whether international law regulates agreements between states and organized armed groups in international and/or non-international armed conflict.[9] Taliban fighters appear to be members of a militia. The US Central Intelligence Agency has recognized that Afghanistan has no national military, rather a number of tribal militias factionalized amongst various groups.[10] Since members of the Taliban militia do not comply with the four conditions of lawful combat expressly incorporated into Article 4(A)(2) of the Geneva Convention (GC) III, they are not entitled to the protections of that Convention. Even if the Taliban were able to claim the status of a “regular armed force” rather than a militia, they could still not qualify for prisoner-of-war (POW) status under Article 4(A)(1) or (3) without first satisfying the four customary conditions of lawful combat expressly enumerated in Article 4(A)(2) of GC III.

Terrorism is defined as,

“…criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes.”[11]

Public international law regulates the conduct of states and other entities, whereby states are to resolve their disputes through peaceful means, as enshrined in the UN Charter.[12] Chapter IV of the UN Charter covers an exhaustive list of methods that may be used for peaceful settlement of international disputes.[13] However, these methods are not limited to member states only and extend to other actors as well, such as the Taliban, who can also engage in negotiation and mediation for peaceful settlement of disputes. That is why the agreement between the Taliban and the US appears to be a good sign for peace in Afghanistan as it creates international obligations for both parties to comply with.

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References

[1] Agreement for Bringing Peace to Afghanistan between the Islamic Emirate of Afghanistan which is not recognized by the United States as a state and is known as the Taliban and the United States of America February 29, 2020

[2] Article 1 of the Montevideo Convention 1933

[3] ICJ’s 1949 opinion on the case “Reparation for Injuries”, introducing a principle of speciality” and flexibility as far as international legal personality

[4] Article 1 of the Vienna Convention on Law of Treaties 1969 came into force in 1980

[5] Article 1 of the Vienna Convention on Law of Treaties 1986

[6] Article 2 of the Draft Articles on State Responsibility 2001

[7] Article 38 of ICJ Statute

[8] Article 1 of the Draft articles on the responsibility of international organizations 2011

[9] Four Geneva Conventions of 1949 and Additional Protocols of 1977

[10] Central Intelligence Agency, The World Factbook 2000, at 3

[11] In 1994, the General Assembly’s Declaration on Measures to Eliminate International Terrorism, set out in its resolution 49/60

[12] Article 2(3) of UN Charter

[13] Article 33 of UN Charter

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