After over 18 years of war in Afghanistan, the US and the Taliban, the two parties to the conflict i.e. a State and an Insurrectional Movement respectively, concluded the “Agreement for Bringing Peace to Afghanistan” (“Doha Accord”) with a view to end the war.[1] This article will engage in a two part inquiry. It will start by identifying the legal basis for peace agreements between States and Insurrectional Movements and then identify the elements in peace agreements which are purportedly grounded in International Law and whether the Doha Accord incorporates such elements and if so, to what extent.
As will be elaborated below, peace agreements incorporate elements which are typically within the realm of sovereignty of a State. If such agreements are indeed grounded in International Law, it could theoretically, ‘internationalize’ these inherently ‘domestic’ issues.
The agreement in the instant case, the Doha Accord broadly provides for the following:[2]
- Cease-fire. Negotiators agreed to a temporary reduction in violence and decided that a lasting cease-fire among U.S., Taliban, and Afghan forces will be part of intra-Afghan negotiations.
- Withdrawal of foreign forces. The United States agreed to reduce its troop presence in the country from roughly 12,000 to 8,600 within 135 days. If the Taliban follows through on its commitments, all U.S. and other foreign troops will leave Afghanistan within 14 months.
- Intra-Afghan negotiations. The Taliban agreed to start talks with the Afghan government in March 2020.
- Counterterrorism assurances. The Taliban guaranteed that Afghanistan will not be used by any of its members, other individuals, or terrorist groups to threaten the security of the United States and its allies.
The First Inquiry: Legal Basis for International Agreements between States and Non-State Entities
The first inquiry is whether agreements between States and Non-State Entities could be regulated by International Law at all. The law of treaties, namely the Vienna Convention on the Law of Treaties of 1969[3] (“VCLT”), governs the application and interpretation of treaties, however, the scope of application of the VCLT is limited to “treaties between states”.[4] Nevertheless, the VCLT provides for a “savings clause” in the form of Article 3, which states that while the VCLT does not apply to agreements concluded between States and other subjects of International Law, its non-application (in those cases) shall not affect:
- the legal force of such agreements;
- the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention
Therefore, it can be safely concluded that without prejudice to the provisions of the VCLT an agreement between a State and other subjects of International Law can have legal force.
Are Insurrectional Movements ‘other subjects of International Law’ within the meaning of Article 3 of the VCLT?
The traditional view that only States can be subjects of International Law was dispelled by the International Court of Justice (“the Court”) in 1949[5] stating that even though States are natural subjects of the international legal system, there are other subjects of International Law albeit ‘not necessarily identical in their nature or in the extent of their rights’.[6] In the context of Article 3, the ILC was of the view that “the phrase ‘other subjects of international law’ is designed to provide for treaties concluded by: (a) international organizations, (b) the Holy See, and (c) other international entities, such as insurgents, which may in some circumstances enter into treaties”.[7] [Emphasis Added] Specifically, with respect to insurrectional movements it has been argued that ‘by entering into agreements akin to treaties with such entities, states would tend to recognize that such groups have a limited form of international legal personality.[8]
In conclusion to the first inquiry, Insurrectional Movements, albeit having diminished international legal capacity, do nonetheless qualify as ‘other subjects of international law’ within the meaning of Article 3 of the VCLT and therefore, agreements concluded between them and States could a) have legal force and b) be subject to International Law independently of the VCLT. (Articles 3(a) & (b)).
The Second Inquiry: To what extent are Peace Deals between States and Insurrectional Movements grounded in International Law?
Peace Deals between States and Insurrectional Movements are not uncommon, examples include the Agreement between Sierra Leone and RUF concluded in 1999[9]; the Agreement between the Central African Republic and FPDC/UFDR concluded in 2007[10]; the Agreement between the Government of Nepal and CPN (Maoist), concluded in 2006[11] and more recently, the Agreement between Colombia and FARC-EP concluded in 2016[12]; among others.
The elements of peace agreements purportedly subject to International Law
While these peace agreements have been concluded within their unique respective contexts, they typically incorporate two constituent elements. Firstly, they aim to suspend hostilities and the parties reciprocally commit not to use force against each other and secondly, they typically include clauses aimed at the political settlement of the conflict.[13] These features are significant in determining the extent to which peace agreements are grounded in International Law.[14]
With respect to the first constituent element i.e. ceasefire or suspension of hostilities: the question is whether the parties reflect a will to apply, within States, the rule prohibiting the use of force as set out in Article 2(4) of the United Nations Charter?
Traditionally, the ‘use of force’ within a State is considered a matter pertaining to its sovereignty and thus within the ambit of a its own domestic jurisdiction. Extension of the rule prohibiting the use of force ‘internally’ could ‘internationalize’ this issue and give parties to the agreement the benefit of this rule and consequently, the ‘right to self-defense’ if such agreement is breached.
With respect to the second element i.e. political settlement: the question is, does achievement of a political settlement pursuant to overarching principles of “democratic” “equality of citizens” and “human rights” reflect a will to ground the agreement within the aforesaid principles as they are understood in International Law?[15]
Here again, every State has the sovereign right to determine their political, economic, social, and cultural regime.[16] Allowing insurrectional movements to seek compliance of a particular form of ‘political settlement’ pursuant to the above-mentioned overarching principles of International Law could also ‘internationalize’ a purely domestic issue.
While the Doha Accord does indeed contain provisions aimed at the suspension of hostilities,[17] it leaves the “political settlement” to subsequent “Intra-Afghan Negotiations”[18] so this article will limit itself to exploring the first constituent element i.e. whether a ceasefire can be considered an application of the international prohibition on the use of force.
Ceasefires as an application of the international prohibition on the use of force?
At the outset, it must be noted that Article 2(4) of the UN Charter was never envisaged to apply to Non-State Entities as the prohibition clearly applies ‘between States in their international relations’ and not ‘within States.’ This enquiry however is whether the emerging practice of States and Non-State Entities by agreeing to a ceasefire and not ‘using force’ against the other shows a will of the parties to apply the ‘international prohibition on the use of force’ as set out in Article 2(4) of the Charter ‘within States’ and if so, whether the supposed breach of the ceasefire is treated as a violation of such ‘prohibition’?
Ceasefire Agreements either proclaim a cessation of hostilities or express, in less specific terms, a renunciation of violence or of the use of armed force by one or both parties. For example, the Doha Accord says that the Taliban shall take steps to ensure that the soil of Afghanistan is not used ‘to threaten the security of the United States and its allies’ and take measures to prohibit other persons or groups from doing so.[19]
The ‘cessation of hostilities’ in the 2006 Nepal-CPN (Maoist) Agreement was defined as a ‘Ceasefire’ and prohibited all forms of violent attacks between the parties.[20] Other peace agreements have their own unique definition of what constitutes a ceasefire. However, it has been argued that the provisions of such agreements are ‘very remote from the wording and meaning of Article 2(4) (UN Charter), which is indeed never referred to in any of these agreements.’[21]
Nevertheless, there are cases where some peace agreements contain provisions which do indeed reflect language similar to Article 2(4) of the Charter. It is interesting to note that in the Doha Accord, in juxtaposition to the obligation of the Taliban to not ‘threaten the security of the United States and its allies’[22], the US instead obliges to ‘refrain from the threat or the use of force against the territorial integrity or political independence of Afghanistan or intervening in its domestic affairs’.[23] Similarly, Russia and Chechnya have undertaken in a peace agreement ‘to reject forever the use of force or threat of force in resolving all matters of dispute.’[24]
However, even in those cases, to argue that a conclusion that the parties to the agreement, by incorporating language similar to Article 2(4) in the peace agreement, envisaged a will to have their mutual relations regulated by the prohibition on the use of force in international relations would be excessive.[25] This is because, practically, in cases of breach of agreement, the parties do not see the breach as a violation of the prohibition on the use of force and consequently, do not avail the right to retaliate in self-defense[26] (under Article 51 of the Charter) but rather specific consequences (usually provided for in the agreement) follow such as activation of third party monitoring mechanism[27], etc.
While the Doha Accord prima facie doesn’t contain any such ‘monitoring mechanism’, there are alleged (and confidential) annexes to the said agreement which do contain “a robust monitoring and verification mechanism.”[28] This was seen recently, in the form of talks to ‘reduce violence’, when tensions between both parties escalated due to a resumption of hostilities after the signing of the Doha Accord.[29]
Therefore, it can be safely concluded that the Doha Accord is not evidence of the US and the Taliban’s will to apply the rules of international prohibition on the use of force as enshrined in Article 2(4) of the Charter ‘within States’.
Does a UN Security Council endorsement give legal effect to a Peace Agreement?
On 10 March 2020, the UNSC adopted a resolution ‘welcoming the significant steps towards ending the war’ through the Doha Accord whilst ‘urging the Government of the Islamic Republic of Afghanistan to advance the peace process, including by participating in intra-Afghan negotiations.[30] Similarly, on 18 December 2002, the UNSC whilst expressing satisfaction at the conclusion of the agreement, ‘welcome[d] the signing of the ceasefire agreement between the Transitional Government of Burundi and the Conseil national pour la défense de la démocratie-Front de défense de la démocratie (CNDD-FDD).’[31]
However, such ‘statements are of little value when it comes to pronouncing on the legal force and value of such agreements. The only observation that may be made at this stage is that the Security Council deems the conclusion of peace agreements appropriate.’[32]
Even in cases where the UNSC uses clearly ‘directive’ language towards the addressees to seek compliance with a peace agreement, it is argued that in such cases, the UNSC is not pronouncing upon the legal effects of the peace agreement, rather the UNSC is acting on its mandate to ‘maintain or restore international peace and security.’[33] This was the case when the UNSC, under a Chapter VII Resolution, ‘condemn[ed] the flagrant violation of the cease-fire agreement”[34] and ‘urge[ed] [all parties] immediately to begin resolutely implementing all the commitments they have made under these agreements’[35] during the first Ivorian Civil War because it determined that the ‘situation in Côte d’Ivoire continues to pose a threat to international peace and security in the region.’[36]
Therefore, in the case of Doha Accord, the UNSC merely welcomes the conclusion of the agreement and this does not bestow legal force upon it.
Conclusion
Peace Agreements between States and Insurrectional Movements are becoming increasingly common and although they may have legal force outside the scope of the law of treaties, the exact type of international obligations they seek to create is ambiguous since each agreement has varied circumstances and provisions. Ultimately, it will depend on the implementation of the agreement itself to determine whether the parties intended to be bound by its provision as they are understood in the international legal sphere. As this article has shown, however, the practice so far suggests otherwise, and the Doha Accord is the latest example of this.
It will remain to be seen whether such agreements will, in the future, be grounded in International Law and therefore ‘internationalize’ issues which are inherently ‘domestic’ in nature.
————————————– 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, 29 February 2020 (“Doha Accord”), available at : https://www.washingtonpost.com/context/u-s-taliban-peace-deal/7aab0f58-dd5c-430d-9557-1b6672d889c3/?itid=lk_inline_manual_3
[2] CFR, U.S.-Taliban Peace Deal: What to Know, Lindsay Maizland, 2 March 2020, available at: https://www.cfr.org/backgrounder/us-taliban-peace-deal-agreement-afghanistan-war
[3] 1969 Vienna Convention on the Law of Treaties, 1155 UNTS, 331, available at: https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
[4] Article 1, VCLT
[5] Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, p 174, available at: https://www.icj-cij.org/files/case-related/4/004-19490411-ADV-01-00-EN.pdf
[6] Ibid, para 178
[7] Report of the ILC to the General Assembly, YILC, 1962, vol. II, p 162, para. 8, available at: https://legal.un.org/ilc/publications/yearbooks/english/ilc_1962_v2.pdf
[8] Cannizzaro, E., 2011. The Law Of Treaties Beyond The Vienna Convention. Oxford University Press, p.3.
[9] Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (RUF/SL) (Lome Agreement), available at: https://peacemaker.un.org/sierraleone-lome-agreement99; In this particular case, the Special Court of Sierra Leone had the opportunity to ‘vet’ the Lome Agreement and came to the conclusion that the agreement was not subject to International Law, see: SCSL, Decision on Challenge to Jurisdiction: Lome Accord Amnesty, 13 March 2004, available at: http://www.rscsl.org/Documents/Decisions/AFRC/Appeal/033/SCSL-04-16-PT-033.pdf
[10] Accord de Paix entre le Gouvernement de la République Centrafricaine et les Mouvements Politico-Militaires ci-après designés: FDPC et UFDR (Syrte Agreement), available at: https://peacemaker.un.org/car-accord-paix2007
[11] Comprehensive Agreement concluded between the Government of Nepal and the Communist Party of Nepal (Maoist), available at: https://peacemaker.un.org/nepal-comprehensiveagreement2006
[12] Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace, available at: https://peacemaker.un.org/node/2924
[13] Cannizzaro, E., 2011. The Law Of Treaties Beyond The Vienna Convention. Oxford University Press, p.3.
[14] ibid
[15] Certain Peace Agreements contain clauses with reference to references to the concepts of democracy, governance, or rule of law, for example see, Ceasefire Agreement between the Transitional Government of Burundi and the Conseil national pour la défense de la démocratie–Forces pour la défense de la démocratie, Arusha, 2 December 2002, S/2002/1329, 4 December 2002, Article VI(1)(1); see also the Peace Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front, Arusha, 4 August 1993, annexed to A/48/824-S/26915, 23 December 1993, Preamble.
[16] UNGA resolution 2625 (XXV) of 1970
[17] See above, Doha Accord, Part II
[18] Ibid. Part III, Section 2
[19] Ibid, Part II, Section 1
[20] Supra Note 3, Article 2(a)
[21] Cannizzaro, E., 2011. The Law Of Treaties Beyond The Vienna Convention. Oxford University Press, p.3.
[22] Doha Accord, Part II, Section 1
[23] Doha Accord, Part I, Section F
[24] Peace Treaty and Principles of Inter-relation between the Russian Federation and the Chechen Republic of Ichkeria, 12 May 1997, Article 1, available at: https://peacemaker.un.org/russia-chechen-ichkeria-treaty97
[25] Cannizzaro, E., 2011. The Law Of Treaties Beyond The Vienna Convention. Oxford University Press, p.3.
[26] ibid
[27] See Lome Agreement, Article II; Nepal-CPN Agreement, Article 9, etc.
[28] New York Times, A Secret Accord With the Taliban: When and How the U.S. Would Leave Afghanistan, David E. Sanger, Eric Schmitt and Thomas Gibbons-Neff, 8 March 2020, available at: https://www.nytimes.com/2020/03/08/world/asia/taliban-afghanistan-annexes-peace-agreement.html
[29] Al-Jazeera, Taliban, US commander discuss violence reduction in Afghanistan, 11 Apr 2020, available at: https://www.aljazeera.com/news/2020/04/taliban-commander-discuss-violence-reduction-afghanistan-200411090220757.html
[30] UNSC Resolution 2513 of 2020, 10 March 2020, available at: https://undocs.org/S/RES/2513(2020); See also, DW, UN backs US-Taliban peace deal in Afghanistan, 10 March 2020, available at: https://www.dw.com/en/un-backs-us-taliban-peace-deal-in-afghanistan/a-52714436
[31] UNSC Presidential Statement S/PRST/2002/40, 18 December 2002, available at: https://undocs.org/S/PRST/2002/40
[32] Cannizzaro, E., 2011. The Law Of Treaties Beyond The Vienna Convention. Oxford University Press, p.3.
[33] Ibid; see also Article 39, UN Charter
[34] UNSC Resolution 1572 of 2004, Para 1, available at: http://unscr.com/en/resolutions/doc/1572
[35] Ibid, Para, 4
[36] ibid
