Examining the Humanitarian Intervention Doctrine in International Law Through the Prism of 2021 Afghanistan Crisis

By: Abhiraam Shukla


INTRODUCTION

Operation Enduring Freedom was one of the most extensive and prolonged campaigns of the United States of America. It was launched in the wake of the 9/11 terrorist attacks which were committed by the militant organization Al-Qaeda. The main object behind this colossal course of action was to prevent the use of Afghanistan as a terrorist base by Al-Qaeda, destroy the terrorist network of the militants, and stop the Taliban regime in Afghanistan from providing a haven to the terrorists. The USA also intended to introduce Western-style democracy in Afghanistan instead of the Sharia system which was endorsed by the Taliban.

However, this entire crusade of the USA, which lasted for almost two decades, has been rendered fruitless by the Taliban insurgents who recently blitzed across the country and captured all the major cities, including Kabul, forcing President Ashraf Ghani to abdicate and flee from the nation. This untoward and menacing development occurred within days and just before when the USA was supposed to withdraw the last of its troops from Afghanistan.

The 2021 Afghanistan crisis poses flagrant and oppressive violations of the human rights of the citizens of Afghanistan. Taliban has already issued a diktat ordering the local religious leaders to hand over a list of girls above the age of fifteen and widows below the age of forty-five, who shall be forcefully married to their fighters. Apart from this, it is axiomatic that the Sharia law, which the Taliban is pushing for, is inherently oppressive and violates women’s rights and freedom of people in a plethora of ways. The lives of the people of Afghanistan are in absolute danger, given Taliban’s brutal attacks on the cities which has led to various war crimes and humanitarian catastrophes.

At this point, some pertinent questions arise – What is the Humanitarian intervention Doctrine in International Law? And in this humanitarian crisis, what is the extent of the actions that can be taken by other countries to aid Afghanistan? Is there anything that the other nations can do to help the situation in Afghanistan? Can other States use force to eliminate the Taliban insurgents who have captured power in Afghanistan? This article seeks to find the answers to these questions by evaluating the Humanitarian Intervention Doctrine through the prism of the 2021 invasion of Afghanistan.

THE DOCTRINE OF HUMANITARIAN INTERVENTION

Humanitarian Intervention means to curb or stop gross violations of human rights in a country with the help from other countries, where such a country is either incapable of protecting its people or is non-willing to do so. Such intervention may also happen in cases where the concerned State is actively persecuting its citizens.  Many scholars of international law have argued that humanitarian intervention is permissible in a strictly defined situation, in order to protect the lives of individuals situated in a particular state, not necessarily being the nationals of the intervening state. The Pre-Charter law also supports such an argument and it might as well be the case that such interventions could’ve been allowed under the international law in the nineteenth century.

However, post the enactment of the UN Charter of 1945 (hereinafter ‘the Charter’) it has become increasingly difficult for the states to intrude into a foreign country, even if it is for liberating and emancipatory purposes. Article 2(4) of the Charter strictly declares that all states shall refrain from using force against the territorial integrity and political independence of any state. One would have to adopt a rather artificial definition of territorial integrity in order to allow temporary violations of the Article or  the establishment of such right in customary international law.[1] The practice of intervention has also been unfavourable to the concept in general because there is a high conceivability that it might be used to justify illegal and arbitrary incursions by more forceful countries into the territories of weaker states.[2]

Nevertheless, it is not implausible that in some dire situations, the international community might not oppose a humanitarian intervention by which large numbers of people have been saved from circumstances of gross oppressions or terrorism.[3] Furthermore, it is possible that such a right might also evolve in cases of extreme humanitarian need. It is to be noted here that there is no provision in the international law that specifically prohibits intervention by States which is aimed at the protection of human rights.

DRAWING PARALLELS BETWEEN 1999 KOSOVO CRISIS AND 2021 AFGHANISTAN

The 1999 Kosovo Crisis provides a great example in which the doctrine of humanitarian intervention under international law can be examined. The Kosovo Crisis was an armed conflict that was fought between the Federal Republic of Yugoslavia and a Kosovo Albanian Rebel Group called the ‘Kosovo Liberation Army’. During that conflict, North Atlantic Treaty Organization (hereinafter ‘NATO’) intervened and carried out an aerial bombing campaign against the Federal Republic of Yugoslavia. NATO later claimed that it had carried out the campaign to counter Yugoslavia’s bloodshed and the ethnic cleansing of Albanians.

After the Kosovo Crisis, the UK Secretary of State for Defence stated – “In international law, in exceptional circumstances and to avoid a humanitarian catastrophe, military action can be taken and it is on that legal basis that military action was taken.” Thereafter, the Security Council of the UN rejected the resolution which was condemning the use of force by NATO in Kosovo. The actions of NATO were neither fully endorsed nor were they condemned by the UN.

In the author’s opinion, the nature of the 2021 Afghanistan Crisis is similar to the Kosovo Crisis. In both the conflicts, there was a massive displacement of people, who had to leave their country either due to their religion or due to war crimes. Furthermore, the Taliban has already started killing people of Afghanistan, including women who are either protesting their actions or disobeying their orders. This exigent and egregious situation backs the need for humanitarian intervention by any country, or a group of countries to stop human rights violations caused by the actions of Taliban.

RESTORING DEMOCRACY THROUGH HUMANITARIAN INTERVENTION

The principle of humanitarian intervention has one variant which states that intervention to restore democracy in a state is permitted under international law.[4] In 1989, the restoration of democracy was one of the grounds used by the USA when it invaded Panama to its de-facto leader General Manuel Noriega.

Apart from that, the ‘responsibility to protect has been extensively considered as a composite concept including the responsibilities to prevent catastrophic situations, to react instantly in such situations, and to rebuild afterwards. It is deemed that such responsibilities fall both upon the states and the international community. It particularly includes the commitment to reconstruction after the intervention or initial involvement.

In the author’s opinion, it has become extremely important for the other states to take action to restore democracy in Afghanistan as the Taliban has formally declared that democracy will not be allowed in Afghanistan under its regime. This declaration by the Taliban directly violates Article 21 of UDHR, Article 25 of ICCPR, and Article 7 of CEDAW all of which proclaim that everyone has a right to take part in the government of his nation, either directly or through elected representatives.

AIDING THE AUTHORITIES OF STATE APART FROM INTERVENTION

In international law, even if the states do not directly intervene in the matters of another state, it appears that it is perfectly legitimate for one government to aid the authorities of another government to suppress a movement, provided that it is requested by that state itself. During USA’s Grenada invasion of 1983, this principle was used when the governor-general of Grenada allegedly asked for help from the USA. This doctrine further resurfaced in the 1989 Panama Invasion by the USA, which has been discussed earlier in the article.

Practices under this doctrine of international law suggest that economic, technical, or arms arrangements to governments dealing with civilian conflict or terrorist attacks are acceptable.

In the author’s opinion, even if the other countries do not directly intervene in the Afghanistan crisis, they could still lend a helping hand to Afghan authorities to alleviate the situation. The Taliban easily overpowered the Afghan army, who lost to the Taliban forces due to several factors such as loss of air support from NATO and the demoralized state of Afghanistan’s army due to USA’s exit from Afghanistan. Other powerful nations, especially the USA can lend economic resources, monetary resources, and especially arms to help the Afghan army resist the Taliban militants.

CONCLUSION

After the analysis of the doctrine of humanitarian intervention and the principles, practices, and discussions surrounding it, the author has concluded that, under circumstances dealing with grave human rights violations and other crimes such as the current Afghanistan situation, any intervention to restrict it is not illegitimate per se under the international law. Many powerful nations of the world can take the example of previous incidents in which other states had lent a helping hand to the countries in need, to prevent a humanitarian catastrophe. Furthermore, it is also concluded by the author that armed forces from other states can use force against the Taliban under international law to exterminate its control over Afghanistan, just like NATO did in Kosovo. Lastly, time is extremely important given the increase in atrocities being committed by the Taliban every day. The United Nations, associations of States and individual states must expeditiously decide and take action to ameliorate the condition in Afghanistan.

[1] Hedley Bull, Intervention in World Politics (M. B. Akehurst, Humanitarian Intervention, 1984) 95.

[2] D. J. Scheffer, ‘Towards a Modern Doctrine of Humanitarian Intervention’ [1992] 23 University of Toledo Law Review 253

[3] J. Pattison, Humanitarian Intervention and the Responsibility to Protect (Oxford University Press 2010) 45

[4] J. Crawford, ‘Democracy and International Law’ [1993] 44 BYIL 113


(Abhiraam is a law undergraduate at National Law Institute University, Bhopal . The author may be contacted via mail at abhiraamshukla.ug@nliu.ac.in)

Cite as: Abhiraam Shukla, ‘Examining the Humanitarian Intervention Doctrine in International Law Through the Prism of 2021 Afghanistan Crisis’ (The RMLNLU Law Review Blog, 23 September 2021) <https://rmlnlulawreview.com/2021/09/23/humanitarian-intervention-afghanistan/>   date of access

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