Balancing Accountability and Legitimacy

As they have installed themselves as the de facto government of Afghanistan, the Taliban could theoretically be held accountable for potential crimes via inter-state proceedings. In practice however, that would run the risk of increasing the perceived legitimacy of the Taliban as the Afghan government. The announcement of Prosecutor Karim Ahmad Khan of the International Criminal Court (ICC) on September 27 to resume investigations in Afghanistan in the form of criminal prosecution – and thus not as inter-state litigation – therefore deserves support. Criminal prosecutions present themselves as the natural alternative to inter-state proceedings – and amidst reports that the Taliban have committed large-scale atrocities since their military takeover of the country in mid-August, some type of legal action against them seems more than necessary.

The Current Position of the Taliban: Factual Control, but Lack of Legitimacy

After Afghan President Ghani fled the country on August 15, Taliban fighters took over the capital of Kabul and now control virtually all of Afghanistan’s 34 provinces. So far however, no formal handover of governmental responsibilities has taken place. Specifically, Vice President Amrullah Saleh continues to oppose a possible Taliban government and has declared himself the acting president of the country. And indeed, Article 60 of the 2004 Afghan Constitution does seem to provide for such care-taking powers of the Vice President in the case of ‘absence, resignation, or death of the President’. Hence, so long as Saleh refuses to formally acknowledge the Taliban as the new Afghan government, the latter do not have a constitutionally valid claim to power. Neither do the Taliban enjoy international recognition: Although Russia and China may be preparing for such a step, no state has formally recognized them as the government of Afghanistan, with some countries specifically declaring that they have no intention of doing so in the future.

In short, as things currently stand, the Taliban have attained the status of a de facto government. They exercise factual territorial control over the country, but they lack formal constitutional authority and international recognition as the new Afghan government.

State Responsibility of Afghanistan: The Doctrinal Perspective

Ensuring accountability for Taliban crimes through state responsibility mechanisms would presuppose that the Afghan state is internationally responsible for Taliban acts – in other words, that their conduct as a non-recognized de facto government is attributable to Afghanistan.

The general international legal framework for determining attribution is laid down in Articles 4-11 of the 2001 ILC Articles on Responsibility of States for Internationally Wrongful Acts (ASR). The standard case is the attribution of conduct of state organs under Article 4. Article 4 (2) clarifies that ‘[a]n organ includes any person or entity which has that status in accordance with the internal law of the State.’ As we have seen, the Taliban currently do not have the constitutional authority to govern. Their apparatus therefore does not have the status of a state organ as a matter of Afghan internal law.

On the other hand, the use of the term ‘includes’ in ASR Article 4 (2) suggests that the domestic legal status as an organ is merely a sufficient, but not a necessary condition to qualify as a state organ under the ASR. In other words, even where an entity is not recognized under internal state law, there may still be other circumstances which vest this entity with state organ status under Article 4. In precisely this vein, the ILC Commentary on the ASR confirms that the factual control of a group will also be sufficient for these purposes: It states that a de facto government ‘is itself an apparatus of the State’ and that ‘[t]he conduct of the organs of such a Government is covered by article 4’ (Comment 4 to Article 9). Thus, now that they have become the de facto government of Afghanistan, acts commissioned by the Taliban will qualify as conduct of state organs under Article 4 and will therefore be imputable to the Afghan state.

This implies that, should third states be adversely affected by unlawful Taliban policies, they would be entitled to demand the cessation of such unlawful conduct (see Article 30 (a) of the ASR) and to adopt counter-measures or initiate proceedings before international courts against Afghanistan. Moreover, to the extent that the Taliban violate erga omnes norms such as the prohibitions of slavery or of racial discrimination, even third states which suffer no direct injury from these crimes may invoke the responsibility of Afghanistan (see Article 48 (1) (b) of the ASR). As a purely doctrinal matter, state responsibility instruments are thus available for holding the Taliban accountable. When considered from a practical perspective however, a different picture emerges.

Practical Considerations: State Responsibility and Perceived Legitimacy

As seen, states could in principle invoke the international responsibility of Afghanistan for Taliban actions. However, as described above, the international community currently seems reluctant to grant the Taliban recognition as the new Afghan government.

Now, if they were to hold Afghanistan internationally responsible for unlawful Taliban conduct, states would undermine this policy of non-recognition. They would acknowledge that, at least for the purposes of state responsibility, the Taliban have the capacity to act in the name of the Afghan state – which would boost the (perceived) legitimacy of the Taliban regime as the representatives of Afghanistan. The practical consequences would be particularly untenable in the case of a state complaining that actions by the Taliban violate international law and bringing a corresponding claim against Afghanistan before the International Court of Justice. In order to meaningfully argue the case for the Afghan side, the group responsible for the actions in question would have to appear as the Afghan representatives before the ICJ. This would mean that Taliban officials would get to argue a case for Afghanistan in the Peace Palace. Short of an outright diplomatic recognition by third states, it is hard to imagine many scenarios which would bestow greater legitimacy on the Taliban’s claim to power than them getting to represent their state before the World Court in proceedings that could drag on for years.

These considerations suggest that states will likely think twice before invoking the international responsibility of Afghanistan for Taliban conduct so as not to enhance the latter’s legitimacy. Ironically, those states which are particularly opposed to a Taliban government, and which would therefore be most likely to hold them accountable for violations of international law are also the ones that will probably be most anxious about the legitimizing images that international litigation would produce. For example, at a Security Council meeting in August, the US called on the Taliban to comply with international law, while the UK warned the Taliban that there would be consequences to their actions. Yet they both also stressed that they would ‘not recognize a Taliban Government’, which makes them seem unlikely to bring a legal case against Afghanistan in response to Taliban conduct. Conversely, states which have reacted with greater sympathy to the Islamist group’s recent rise to power would supposedly not be too deterred by the legitimizing effect of inter-state proceedings – but they, naturally, are also the least likely to initiate such proceedings against a regime that they view relatively favorably. Consequently, from a practical perspective, it is hard to imagine that state responsibility mechanisms will be used to ensure accountability for Taliban crimes.

Criminal Prosecutions as the Natural Alternative

From this legitimacy perspective, criminal prosecutions before the ICC appear as the natural alternative to state responsibility instruments. The unintended legitimizing effects that make inter-state litigation against Afghanistan seem improbable do not apply to ICC proceedings: Criminal prosecutions can take place independently of whether the accused currently holds a governmental office. If Taliban members were to stand trial before the ICC, this would not affect the non-recognition of the Taliban government by other states, because the accused would precisely not appear as representatives of the Afghan state, but in their capacity as individuals. As such, these proceedings could not be seen as supporting the Taliban’s claim to governmental authority.

Relevant past examples of ICC trials in which the accused did not represent the respective national government abound. For instance, from 2009 to 2014, Congolese military leader Germain Katanga stood trial at the ICC, despite the fact that the FRPI rebel group which he had led never attained or claimed governmental status. Similarly, in 2016, Ahmad al-Faqi al-Mahdi was prosecuted and convicted before the ICC. Al-Mahdi and the Malian Tuareg Islamist militia with which he was associated never exercised the functions of a central government.

Conclusion: ICC Prosecution as the most promising reaction to Taliban crimes

With this in mind, states should support the ICC’s prosecutorial efforts against the Taliban – they may be the only available option for delivering justice in response to their past and future crimes in Afghanistan. Even if inter-state litigation would be doctrinally possible in the context of Taliban crimes, it seems unlikely to materialize as it could be (mis-)interpreted as legitimizing the Taliban rule. This also provides a justification for the Prosecutor’s decision to shift the Court’s focus from US crimes to atrocities committed by the Taliban: Unlike for Taliban offences, accountability for unlawful US conduct in Afghanistan could still be ensured through state responsibility mechanisms such as inter-state litigation.