The withdrawal of troops from Bagram, Afghanistan marked the beginning of an end that had been in making for a long time. Little did the world know that the American War on Terror would cost Afghanistan its political sovereignty, economic independence and demographic diversity. The purpose of this essay shall be to assess, analyze and suggest ways in which International Law of Armed Conflict and the normative orders associated with it can help Afghanistan recover, politically and economically, in its post-conflict phase and the responsibilities that it imposes on other warring factions, primarily the USA.
Limits of Jus Ad Bellum and Jus In Bello
Article 2(4) and Chapter VII (of which Article 51 forms an integral part) of the UN Charter prescribes ways in which Use of Force can be regulated at the international level. Article 2(4) prohibits member states from using threat or use of force against political independence or territorial sovereignty of any other state or in any manner inconsistent with the purposes of the UN. What seemed monumental about this provision was its intent to prohibit not just wars (which the Kellogg-Briand Pact had already done) but ‘threats’ and ‘use of force’ that fell short of war. However, some, like Akehurst, suggest that the provision was also poorly drafted, in so far that it prohibited threat or use of force only against political independence or territorial sovereignty of any other state or in any manner inconsistent with the purposes of the United Nations.[1] This terminology, according to him, opens up the possibility of using force for a wide variety of different purposes.[2] The only exception to Article 2(4) is self-defence under Article 51 and collective enforcement measures under Chapter VII of the United Nations Charter.
The principle of jus ad Bellum, therefore, refers to the conditions under which a state may resort to war or use of force. Any determination of jus ad bellum, therefore, inevitably leads us to the determination of conditions and ingredients as required by Article 2(4), Article 51 and Chapter VII of the UN Charter. Jus in Bello, on the other hand, deals with the ways in which an armed conflict shall be conducted between two warring factions and its application is independent of the determination of jus ad bellum. The purpose of jus in Bello is to minimize suffering in an armed conflict by protecting and assisting all victims as far as possible.
Coming to Afghanistan, it lies beyond the purview of this essay to reflect on the jus ad Bellum and jus in Belloissues arising from the American intervention in the country. The Americans argued that post 9/11, they had a right to self-defence which was supported and opposed by many. Given the unravelling of events before our eyes i.e. withdrawal of American troops from the Afghan territory, these seem to be issues of the past, whereas, what lies ahead of us is the post-war reconstruction, political, economic and cultural of the Afghan State. It can, therefore, be asserted that the criteria of jus ad Bellum and jus in Bello governs only two primary phases of an armed conflict and that a third phase, that of post-war reconstruction of peace and development, remains largely untouched. Stahn, thus, argues that such dualist conceptualization of norms of an armed conflict presents a very simplified account of how human conduct in an armed conflict is categorized.[3] He suggests changes in this classical dualist construction to also include recognition of principles governing peacemaking after the war.[4] However, expanding the meaning of jus ad bellum and jus in bello to include reconstruction of state post-armed conflict could give reasons to states to intervene in other states on grounds of morality, peacekeeping and humanitarianism.[5] Hence, any recalibration of jus ad bellum and jus in bello along these lines would only serve as a building block for liberal interventions in other states.
Jus Post Bellum: Overlooking Transition from Conflict to Peace
Given that there exists sufficient gaps in jus ad bellum and jus in bello doctrines and that very less has been said about what happens after a war, it becomes important to theorize on post war justice i.e. a jus post bellum which aides jus ad bellum and jus in bello and completes the theory of a just war.[6] There have been many, like Bass,[7] McCready[8]and Evans[9] who have argued that a jus post bellum is implicit in jus ad bellum, however, as highlighted above, Stahn rightly asserts that a jus post bellum and jus ad bellum should not be read together.[10]
Jus post bellum, primarily supported by just war theorists, is an inherently moral concept sans any legal backing that aims at transitioning a state from conflict to peace by helping it get rebuilt politically, economically and culturally.[11] Waging a war, therefore, involves facing ethical challenges before, during and sometimes long after the war itself.[12] While ‘before’ and ‘during’ challenges are dealt with by jus ad bellum and jus in bello respectively, the after war challenge should be dealt with by jus post bellum. Jus post bellum, therefore, compels the warring parties, more so the aggressor, to reflect upon the harmful effects of war and to try to reverse the same through rebuilding measures.[13]
The next important question that comes up is: who has the responsibility to rebuild? Some suggest that the belligerents, owing to their moral responsibility, have an obligation to rebuild[14] while others suggest that there should be a presumption, owing to the antagonism among the local population, against belligerents rebuilding.[15] Pattisonsuggests that such responsibility should be bestowed upon United Nations Security Council which has more capability to marshal resources and bring together relevant actors.[16] A more logical conclusion shall be the inclusion of both, the belligerent and the international community in rebuilding the affected state. Some have also argued, and rightly so, that regional states have a higher stake in taking rebuilding and reconstruction measures.[17]
While many concur that there ought to be a third branch complementing jus ad bellum and jus in bello, the debate largely hovers around what its content should be. What shall reconstruction and rebuilding entail? A host of measures like institutional reforms, legislative reforms, security reforms, human rights reforms, economic developments infrastructure development, criminal justice, war crime trials, restoration, reparations, punishment, rehabilitation, demilitarization, retribution, reconciliation, rebuilding etc. have been suggested. This is primarily where jus post bellum is held by many to be an elusive idea. Burke, for that matter, questions the whole idea of a just war or war leading to justice by asserting it to be an “ontological challenge to peace”.[18] Brabandere argues, and rightly so, that a separate category of jus post bellumneed not categorically exist if that would “aim at evaluating the legality of a military intervention as a function of potential positive outcomes of the post bellum effects”.[19] Therefore, like Stahn, Brabandere too asserts that one shall not draw any relation between jus post bellum and jus ad bellum. Similarly, though elsewhere, Chayes argues that jus post bellum has no independent legal basis and that the same alludes only to moral responsibilities.[20] She asserts that neither do human rights treaties call for a military intervention nor do they impose a duty to reconstruct.[21] Most importantly, moral obligation is said to be consistent only with the self-interest of the aggressor.[22] Most post war efforts like prosecuting war criminals, shaping forms of governance, institutionalizing democracy etc. are taken to protect the interest of the aggressor and that same are said to lack local legitimacy.[23] Chayes, therefore, contests the self-aggrandized objectives of aggressor states by asserting that their aid and donation should give way to local needs and demands and should not be used as a means to maintain an occupation for years.[24]
Therefore, no more should post-conflict resolution rely exclusively on vague moral considerations and that certain objective standards ought to be framed by referring to which regulating guidelines for peacemaking in the interest of people can be effectuated.[25] Such objective standards shall consider promotion of people-centred governance i.e. popular sovereignty as its core.[26] Some have even argued for a fifth Geneva Convention that guides the course of jus post bellum.[27]
Just Post Bellum and Afghanistan
Wars in Iraq and Afghanistan signify that even though major combat operations end early, the conflict may continue for a long. For example, even though significant combat operations in Afghanistan ended in December 2001 and the head of Al-Qaeda, Osama Bin Laden, was murdered in 2011, the conflict continued till it was finally agreed upon in Doha that the American troops would withdraw from Afghan territory. Therefore, at times, jus post bellum considerations might overlap with jus in bello considerations.[28]
The rebuilding of Afghanistan started way back in the 1990s after the Soviets withdrew in 1989. Thereafter, post American intervention in 2001, the Security Council, vide Resolution 1378, called for the Security Council to play a central role in transitional administration. The American intervention helped dethrone the de facto Taliban government on apprehensions that it gave shelter to Osama Bin Laden. Thereafter, Bonn Agreement was entered into by various factions of Afghan polity that sought to re-establish permanent government institutions. The Taliban was excluded from participating in these rebuilding processes.[29]
The Afghans have historically, because of their distinct cultural practice of Pashtunwali, displayed distaste and resentment towards foreign interventions in their polity.[30] Invasions by the Soviets and Americans only resolved their determination to resist with all force possible.[31] It’s primarily for reasons like these that Afghanistan has also been called the ‘graveyard for empires’. Therefore, unlike democratic reforms that took place in Afghan polity in the 1920s-1960s and which erupted primarily from within, the post-Taliban democratization was an internationalized effort, influenced in thought and action from outside.[32] Such international pressure to reform, primarily along Western lines, was visible in the drafting process of the new constitution especially on essential issues like forms of government and electoral systems.[33] The entire post-war reconstruction process took place under the aegis of American forces which only increased as days went by. Local private militias were formed and trained to fight the Taliban in different parts of the country.[34] Thus, all efforts to reconstruct the Afghan polity came from outside, without any local legitimacy, and with the constant presence of American forces on the ground.
The quest to understand the violence meted out to Afghanistan for two decades lies not just in law but in understanding the unilateral alignment of the world order in the preceding epoch.[35] It aimed at aggrandizement of particular western values while demonizing other values. [36] In a way, it also reminds us of the civilizing mission of European colonial conquests in not so distant past. Any effort, on part of the law, to address the post-war reconstruction of the Afghan state should be devoid of such values and intention. Much of it is visible in the agreement reached between the Taliban and the United States of America where the latter has agreed not to interfere in the domestic affairs of the Afghan State.[37] The US has also agreed to a post-war construction, political and economic, in accordance with the dialogues between different factions of the country.[38] The most significant feature of this agreement, unlike the Bonn Agreement, is the realization on the part of the Americans to initiate a dialogue with the Taliban in order to reach permanent peace. The effort of the International Community should be to bolster this dialogue between the Taliban and the Afghan Government and countries like India, China, Russia and Iran are already doing the same. Diplomacy is the only option for the post-war reconstruction. Regional efforts have also been taken to ensure a smooth transition towards a permanent government. The Taliban, as asserted by some, is also in search of International legitimacy and is ready to abide by international norms. They have also welcomed efforts taken by regional countries in the peace process. The withdrawal of American troops from Afghanistan has rekindled the hope of their withdrawal from other regions in the Middle East too. However, certain realists have argued that the Americans can resort to hybrid warfare so as to maintain their interests in the region. Moreover, the Afghan Government, backed by the Americans, have resorted to their old age antique of aiding private militias to fight the Taliban. These attempts will only hinder the peace process.
The answer to jus post Bellum questions in Afghanistan, therefore, lies in bolstering a dialogue between different factions, primarily with the Taliban, of the Afghan polity. Local, national, regional and international efforts to aid the same only seems reasonable and just. Any just post Bellum activity imbued with values and spirit not emanating from within the Afghan polity is bound to fail.
Endnotes:
[1] Peter Malanczuk, Akehurst’s Modern Introduction to International Law (7th edn, Routledge 1997 ) 309
[2] ibid
[3] Carsten Stahn, ‘’Jus ad bellum’, ‘jus in bello…’jus post bellum’?- Rethinking the Conception of the Law of Armed Force’ (2007) 17 The European Journal of International Law 921, 926
[4] ibid
[5] ibid 931
[6] Gary J. Bass, ‘Jus Post Bellum’ (2004) 32 Philosophy & Public Affair 384
[7] ibid
[8] Doug McCready, ‘Ending the War Right: Just Post Bellum and the Just War Tradition’ (2009) 8 Journal of Military Ethics 66, 67
[9] Mark Evans, ‘Balancing Peace, Justice and Sovereignty in Jus Post Bellum: The Case of ‘Just Occupation’’ (2008) 36 Journal of International Studies 533, 534
[10] See n 5
[11] Albert W. Klein, ‘Attaining Post Conflict Peace Using the just post bellum Concept’ [2020] Religions 172
[12] Robert E. Williams Jr. and Dan Caldwell, ‘Jus Post Bellum: Just War Theory and the Principle of Just Peace’ (2006) 7 International Studies Perspective309, 319
[13] Larry May, ‘Just Post Bellum Proportionality and the Fog of War’ (2013) 24 European Journal of International law 315, 324
[14] Lonneke Peperkamp, ‘On the Duty to Reconstruct After War: Who is Responsible for jus post bellum’ (2016) 2 Canadian Journal of Law & Jurisprudence 403, 428
[15] James Pattison, ‘Just Post Bellum and the Responsibility to Rebuild’ (2013) 45 British Journal for Political Science 635, 658
[16] ibid
[17] Alexandria Gheciu and Jennifer Welsh, ‘The Imperative to Rebuild: Assessing the Normative Case for Postconflict Reconstruction’ [2009] Ethics & International Affairs 121
[18] Anthony Burke, ‘Against the New Internationalism’ (2005) 19 Ethics and International Affairs 73, 84
[19] Eric De Brabandere, ‘The Responsibility for Post-Conflict Reforms: A Critical Assessment of the Jus Post Bellum as a Legal Concept’ (2010) 43 Vanderbilt Journal of Transnational Law 119, 149
[20] Antonia Chayes, ‘Chapter VII½: Is Just Post Bellum Possible’ (2013) 24 The European Journal of International Law 291, 293
[21] ibid
[22] ibid 296
[23] Brabandere, ‘The Responsibility for Post-Conflict Reforms’ (n 19) 145 [24] Chayes, ‘Chapter VII½’ (n 20) 305
[25] Stahn, ‘’Jus ad bellum’, ‘jus in bello…’jus post bellum’’ (n 3) 936
[26] ibid 21
[27] Brian Orend, ‘Just Post Bellum: The Perspective of a Just-War Theorist’ [2007] Leiden Journal of International Law 571
[28] McCready, ‘Ending the War Right’ (n 8) 67
[29] Mark Fields and Ramsha Ahmed, ‘A review of the 2001 Bonn Conference and Application to the Road Ahead in Afghanistan’ (2011) 8 Strategic Perspectives <https://ndupress.ndu.edu/Media/News/News-Article-View/Article/717893/a-review-of-the-2001-bonn-conference-and-application-to-the-road-ahead-in-afgha/> accessed 23 July 2021
[30] Adam Roberts, ‘Afghanistan and International Security’ (2015) 85 U.S. Naval War College Digital Commons < https://digital-commons.usnwc.edu/ils/vol85/iss1/3/ > accessed 23 July 2021
[31] Adam Roberts, ‘Doctrine and Reality in Afghanistan’ (2009) 51 Survival: Global Politics and Strategy 29, 30
[32] John F. Murphy, ‘Afghanistan: Hard Choices and the Future of International Law’ (2009) 39 Israel Yearbook on Human Rights 69, 78
[33] ibid 10-13
[34] K. Marten, ‘The Danger of Tribal Militias in Afghanistan: Learning from the British Empire’ [2009] Journal of International Affairs 157
[35] Carol M. Glen, ‘Multilateralism in a Unipolar World: The UN Security Council and Iraq’ [2006] 307
[36] Steve Martinot, ‘The Cultural Roots of Interventionism in the U.S.’ [2003] Social Justice 112
[37] Agreement for Bringing Peace to Afghanistan Between the Islamic Emirate of Afghanistan which is not recognised by United States as a State and is known as the Taliban and the United States of America [2020]
[38] ibid
Raj Kiran Tripathy is 2021 LLM (Public Law and Legal Theory) Graduate from NALSAR University of Law, Hyderabad. His area of interest lies in Public International Law, International Relations, Constitutional Law and Legal Theory.
Image Credit to Dana Summers