Afghanistan 2021: Reflections from the Stockton Center for International Law’s Workshop

Despite over twenty years of legal analysis, many issues regarding the Afghanistan conflict remain unsettled. At a recent Stockton Center for International Law law of armed conflict (LOAC) workshop, an experienced and diverse group of scholars and practitioners considered the United States’ longest armed conflict. While many of the topics resembled those discussed at a 2008 Stockton LOAC workshop, the August 2021 withdrawal of foreign forces prompted a renewed examination and critical analysis of its legal implications.

The workshop included sophisticated discussions of the withdrawal and a prospective look as the United States transitions to a more remote counterterrorism model. For instance, there is now reason to provide greater attention to when, where, and how over-the-horizon (OTH) operations should be lawfully conducted, as Michael Schmitt writes.

Discussions were conducted under the Chatham House Rules non-attribution policy, and so the summary that follows is general in nature. It offers reflections on the topics of conflict classification, detention, and other legal and policy topics. This post also highlights issues requiring further monitoring as national security focus shifts to peer and near-peer competition. It is important to caution, however, that there was an abundance of nuanced disagreement, even related to the broad conclusions set forth below.

Conflict Classification

One non-international armed conflict (NIAC) is probably over. Another might be over soon, but probably not before the initiation of an international armed conflict (according to some).

It is prudent to begin any conflict-related discussion with the topic of legal classification. While it has been self-evident for over twenty years that a conflict (or conflicts) governed by LOAC existed in Afghanistan, the answer is now less certain. Thus, the threshold questions remain: (1) Is there still an armed conflict following the withdrawal of all U.S. and foreign troops from Afghanistan? (2) If so, what type of conflict exists?

The group relied on the generally accepted International Criminal Tribunal for former Yugoslavia Tadić test to determine the existence of an armed conflict. Tadić provides that “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State” (emphasis added). The court’s “protracted” qualifier reflects the notion that hostilities must reach a minimum level of intensity and, according to many, for a requisite duration, for a NIAC to exist. If the duration or level of intensity is not attained or sustained, International Human Rights Law (IHRL), otherwise considered a State law enforcement model, may control.

When applying the Tadić test, the group considered the status of two separate conflicts.

The U.S.- Taliban NIAC

The participants generally agreed that the U.S.-Taliban NIAC has likely concluded. This conclusion follows the President’s pronouncement following the withdrawal of troops that the “United States ended 20 years of war in Afghanistan.” Still, some participants in the workshop disagreed. However, overall, the group considered that while the President’s statement is not dispositive, it is probative of the United States’ intention to end a war.

Presumably, the President’s statement relates to the conflict with the Taliban, though the group was unaware of any clear acknowledgement by the United States that its conflict with the Taliban, as an entity, concluded. Nonetheless, the President’s statement, coupled with the Doha Agreement, troop withdrawal, and the quasi-cooperative relationship with the Taliban pre- and post-withdrawal indicate that the Tadić requirement for protracted armed violence is no longer satisfied. The more intriguing question is whether the United States is in or may soon enter an international armed conflict (IAC) with Taliban, as the de facto government in Afghanistan.

The U.S.–AQ/ISIS-K NIAC

According to many participants, a NIAC between the United States and AQ/ISIS-K still exists. Most participants arrived at this uncertain conclusion via lengthy discussion about whether the NIAC was trending toward termination or whether the parties to that conflict are merely entering a temporary lull.

Resolution of the issue depends on the events that must occur to unequivocally mark the NIAC’s conclusion. Identification of a terminal point is crucial.  It would shift the legal paradigm from a LOAC regime to the law enforcement oriented IHRL legal regime. In addition, the group considered how the removal of troops from Afghanistan effectively eliminated the predictable area where most of the conflict between the United States and AQ and ISIS-K has occurred and would have otherwise taken place in the future.

With Afghanistan no longer serving as the likely ground for extensive conflict between the United States and AQ and ISIS-K, the group explored questions of the suitability and method of aggregating the intensity of conflict across the groups and across territories. For instance, could operations against AQ/ISIS affiliates in Somalia, Sahel countries, and others be aggregated to operations in Afghanistan for the purposes of sustaining the Tadić protracted armed conflict requirement?

Some participants argued that the NIAC with AQ and ISIS-K is rapidly nearing its conclusion (some believed it has already reached its conclusion), citing three observations. First, the troop withdrawal signals a clear intention to halt ground operations in Afghanistan. It follows that without a physical troop presence with which to conduct any ground operations, the “minimum intensity” requirement may be unfulfilled. For this factor, participants found the removal of Afghanistan as an essential battlefield between the groups significant, even though they recognized that conflict between the United States and AQ/ISIS-K has existed and will likely continue in some muted form in Afghanistan and in other areas of the world.

Relatedly, the second argument focused on the fact that no publicly disclosed OTH operations have been conducted in Afghanistan against AQ/ISIS-K since the tragic August 29th airstrike that killed ten civilians, including seven children. Despite clear language that the United States will “maintain the fight against terrorism in Afghanistan and other countries” via OTH operations to counter threats, the actual strike frequency is more probative for a Tadić assessment. Even if it is conceded that a limited OTH air campaign alone may satisfy the “minimum intensity” Tadić threshold, the five-month dearth undermines the argument that the present de facto intensity level in Afghanistan is sufficient.

Others argued that the NIAC endures, and the post-August 2021 pause represents a lull in operations or a strategic shift rather than an intention to end of the NIAC with AQ/ISIS-K. As a point of comparison, proponents highlighted the enduring conflict against Al-Shabaab in Somalia, where a NIAC has been sustained with scant U.S. troop numbers in-country. Further, the frequency and intensity of air strikes in Somalia has waxed and waned throughout the conflict. Afghanistan may simply adopt a Somalia-like NIAC model.

The Potential U.S.–Taliban IAC

For some participants, the issue of whether those operations may trigger a parallel IAC between the United States and Afghanistan was integral to a discussion of continued operations against non-State armed groups in Afghanistan. These participants entertained the view endorsed by the International Committee for the Red Cross (ICRC) in its updated commentaries of Common Article 2 of the Geneva Conventions. According to this view, an IAC arises whenever an “intervening state” (here, the United States) uses force against a territorial State (here, Afghanistan), without consent. The group sidestepped a lengthy discussion on the merits of this issue, recognizing that this broader question was best debated in a different forum and to instead focus on the status of Afghanistan’s consent. In particular, does the toppled government of Afghanistan’s consent for the United States to use force against AQ and ISIS survive the regime change? The workshop discussed two competing approaches.

Some of the participants cited a general tenet of customary international law recognizing that agreements between governments generally survive a change in regime. Consequently, it is conceivable that the former Afghanistan government’s consent would endure until officially rescoped or withdrawn by the Taliban governing authority.

Others submitted that the Taliban takeover constituted a “fundamental change of circumstances” from when the consent agreements were developed. Notably, the agreements were premised on the fact that the Taliban was designated as an adversary to the then-Government of Afghanistan. Thus, the Taliban may—and ostensibly already has—withdrawn consent as contemplated by Article 62 of the Vienna Convention on the Law of Treaties. Without consent of the host nation, the United States’ future kinetic action in Afghanistan could be viewed as initiating an IAC that runs parallel to the NIAC with AQ and ISIS-K. At minimum, future strikes in Afghanistan may be criticized as violative of Afghanistan’s sovereignty. The United States. could also be accused of an unlawful use of force against Afghanistan, in violation of Article 2(4) of the UN Charter and customary international law.

Jus ad Bellum Justifications for OTH Operations in Afghanistan

After discussing the status of Afghanistan’s consent (or lack thereof), the discussion turned to other questions of jus ad bellum legal authority. While substantively debatable, the group presumed the United States will continue to assert that conducting operations against AQ and ISIS-K in Afghanistan remains a lawful exercise of self-defense under Article 51 of the United Nations Charter. That the non-State groups persist in issuing threats against United States citizens at home and abroad may bolster the U.S. self-defense justification.

Next, the group touched upon the applicability of the unable and unwilling doctrine and its application with U.S. operations in Syria. Similarly to those operations, the United States could contend that its continued operations against AQ and ISIS-K are an exercise of self-defense due to the Taliban’s unwillingness or inability to prevent use of its territory by AQ and ISIS-K to plan attacks against U.S. persons at home and abroad. The potential efficacy of the unable and unwilling doctrine applied to operations against AQ and ISIS-K will require continued fact-based analysis.

Ultimately, it remains to be seen what conditions may come to pass before conditions are such that there will be little room left to debate whether conflict in Afghanistan still exists. The de facto assessment should continue to be monitored and analyzed by the international legal community and governmental stakeholders.

Detention

Can the United States possibly receive “reasonable assurances” from the Taliban should it desire to return detainees to Afghanistan?

As a foundational matter, the Taliban presently constitutes the de facto government because it exercises effective control of Afghanistan, regardless of the United States’ formal recognition. When discussing U.S.-Taliban detention matters, the participants focused on the issue of whether the United States may transfer detainees to the Taliban without violating the IHRL principle of non-refoulement.

The principle precludes States from transferring persons within their control to another State if a genuine risk exists that the transferee may face torture, cruel, inhuman or degrading treatment or punishment, and other irreparable harm. Thus, if the United States were to transfer detainees to the Taliban government without adequate assurances that the Taliban would adhere to its international legal obligations, the United States could be accused of violating the principle of non-refoulment. Moreover, even if the Taliban provides assurances, there remains a question concerning the extent to which the United States should (or must) condition transfer on the continued accessibility of organization like the ICRC to ensure compliance. Regardless, there was widespread recognition that “reliable assurances” from the Taliban may be inherently suspect.

Aside from the non-refoulment principle, participants also raised the issue of State responsibility under Article 16 of the International Law Commission’s Draft Articles on State Responsibility. Article 16 provides that a State that “aids or assists” another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (1) the State does so with knowledge of the circumstances of the internationally wrongful act; and (2) the act would be internationally wrongful if committed by that State. Thus, the United States could be in violation of Article 16 if transfer of a detainee is considered “aid or assistance” and the Taliban commits offenses against the detainee.

Legal and Policy Reflections

Lessons from running U.S. and NATO missions during a counterinsurgency, and a point on the rule of law and humanitarian assistance

At the workshop’s conclusion, participants reflected on significant macro-lessons from the last twenty years. While numerous opinions and views were expressed, the following stood out as particularly prescient.

Participants from allied States highlighted the evolution in the NATO International Security Assistance Force (ISAF) missions and the experience gained from conducting operations with coalition partners. Near the beginning of the conflict, attorneys and commanders struggled with operating under “dual-hat” authorities, wherein one U.S. commander would simultaneously lead U.S. forces under U.S. legal authorities and rules of engagement (ROE), and NATO forces under NATO authorities and ROE. U.S. and NATO legal advisors waded through the confusion that permeated up and down the ranks to eventually inform and train the force on the applicable legal and policy distinctions between national and coalition operations. The problem with the lack of training between the forces was that the resulting confusion led to commanders and troops operating without completely understanding applicable legal authorities.

Although marked improvements were made over time, the participants agreed that an enduring need exists for U.S. forces to be trained to operate alongside NATO and other allies to prevent another “breaking in” period at the beginning of an operation when combat efficiency is so important. The general concern was that the lessons learned may be lost in a relatively short amount of time, which will lead to a less effective force at the beginning of operations. Anticipating that a future conflict may involve a peer or near peer adversary, the United States and its international partners should be incentivized to build on their shared Afghanistan experience to further improve legal interoperability before the next conflict begins.

Next, the participants considered the legacy of the counterinsurgency (COIN) mindset. This mindset features restrictive ROE and presidential or other political policy guidance. One worry is that because U.S. forces have operated under restrictive policy constraints for so long, commanders and legal advisors may have an institutionalized level of risk aversion that runs far below acceptable LOAC thresholds. The participants generally concluded that the United States and coalition partners should make a concerted effort to reset commanders and legal advisors to a baseline LOAC mindset.

Finally, the group considered the failures—and successes—of U.S. and coalition rule of law efforts. The participants highlighted the current legal issues surrounding distribution of humanitarian aid to a country that is controlled by government officials subject to international sanctions. Captain Tom Leary, the Staff Judge Advocate for U.S. Central Command, showcased these issues as the moderator of a discussion with Professor Erik Jensen of Stanford Law School and Ms. Natalie Weizmann, the Senior Legal Advisor of the United Nations Office of Coordination of Humanitarian Affairs, which followed the workshop.

Conclusion

After twenty years of conflict in Afghanistan (and corresponding international legal analysis), the workshop demonstrated that the August 2021 withdrawal has not brought finality on many legal issues. Rather, the international community must grapple with an entirely new set of questions in the months and years ahead. As the national security focus shifts to peer and near-peer competition, it is important to recall the significant legal questions emanating from Afghanistan and to fully institutionalize the lessons learned from the “forever war” as it either concludes or enters its next phase.

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Major Steve Szymanski serves as an Assistant Professor and National Security Law Course Director in the Department of Law at the United States Military Academy, West Point.

Major Chris Koschnitzky is a military professor at the Stockton Center for International Law at the U.S. Naval War College, where he co-teaches a course on the Law of Armed Conflict.

To learn more about the workshop’s discussions, click here. In this follow-up discussion, Colonel Chris Ford, the Staff Judge Advocate for the U.S. Army’s 1st Special Forces Command, and Professor Laurie Blank of Emory Law School, along with Major Chris Koschnitzky, a Military Professor at the Stockton Center for International Law, discuss conflict classification, noncombatant evacuation operations, future operations, and rules of engagement.