Recognition of the Taliban Government of Afghanistan did not feature prominently in the Italian parliamentary debates of 2022, unlike the previous year.[1] In fact, despite an explicit request for recognition by the Taliban,[2] the alarming news on egregious violations of human rights, especially women’s rights, in Afghanistan further reduced the Taliban’s already slim chance to see their own Government recognised.
After the seizure of Kabul, the European stance towards the Taliban Government had settled on a conditionality policy that established a causal link between the fulfilment of a series of objectives by the Taliban and engagement by European States with the regime.[3] On 14 February 2022, in response to Question No. 4-05943 that had been raised before the Senate of the Republic, the Italian Deputy Minister of Foreign Affairs and International Cooperation, Ms. Marina Sereni, reiterated that some parameters
could serve as guiding principles for our common engagement with the new authorities: the possibility for Afghans to leave the country, respect for human rights, free humanitarian access, an effective contribution in the fight against terrorism, and formation of an inclusive and representative government through negotiations.
Although the Taliban Government claimed that all conditions have been met,[4] facts seem to prove them wrong. As reported by the press, Afghan women experienced a deterioration of their access to some fundamental rights, such as education, employment, and participation in the civil life of the country. This situation attracted much international and national (Western) criticism,[5] and seems to have buried the idea of recognizing the Taliban Government.
In light of this, parliamentary debates moved to whether independent human rights monitoring mechanisms should be established and how this should be done. On the same occasion mentioned above, Deputy Minister Sereni stated:
With reference to the protection of human rights, it must be recalled that, at the last session of the United Nations Human Rights Council […], Italy promoted a joint statement to express deep concern about the rapid deterioration of the human rights situation in the country, with particular reference to people in conditions of greater vulnerability […] and to reiterate the need for the Human Rights Council to establish an independent mechanism to monitor the human rights situation in the country. […] Italy will continue to support the office of the High Commissioner for Human Rights so that the planned mechanism can become operational as soon as possible.
In fact, on that date the Human Rights Council had already established a Special Rapporteur for human rights in Afghanistan,[6] although it was not until later, on 1 April 2022, that Mr. Richard Bennett was appointed as Rapporteur. Mr. Bennett released his first report on 9 September.[7]
The United Nations’ (UN) presence in Afghanistan is also marked by the long-standing United Nations Assistance Mission in Afghanistan (UNAMA), whose mandate has been most recently renewed by the Security Council with Resolution 2626.[8] The day before the voting, during the 66th Session of the UN Commission on the Status of Women, the Italian Minister for Equal Opportunities, Ms. Elena Bonetti, fully encouraged the renewal:
In light of the current deteriorated context, it is essential that the Security Council provides the UN political mission with a robust mandate to monitor and report on the human rights situation, especially when it comes to women and girls’ rights. Besides monitoring and reporting human rights violations, the UNAMA must also be empowered with ensuring the prevention and elimination of gender-based violence. […]
A robust human rights mandate for UNAMA along with the welcome appointment last October of a Special Rapporteur on Afghanistan will ensure an impartial UN oversight of the human rights situation on the ground while at the same time marking a critical step towards accountability. […]
Now more than ever it is necessary to ensure that the rights of women and girls are guaranteed, to prosecute the offenders responsible for the violations of their rights, and to prevent any action threatening women and girls.[9]
Both the newly established Special Rapporteur on Afghanistan and the renewal of the UNAMA mission raise legal issues that are worth analysing, also in relation to the Italian position. A first question concerns the modalities by which these two missions are carried out, an issue partly connected to that of the recognition of the Taliban Government. Based on the resolutions establishing the Special Rapporteur and renewing UNAMA’s mission, it is clear that the related operations ought to take place, at least partially, on Afghan soil.[10] One might therefore consider whether the consent of those who currently hold power in Afghanistan is needed to comply with the principle of non-interference in the internal affairs of a State, also protected by Article 2(7) of the UN Charter. The point has been discussed by the Members of the Security Council during the drafting of Resolution 2626: early drafts of the text invited UNAMA to conduct its operations in support of the Afghan people, until China and Russia objected to such language, specifying that UNAMA would require the Taliban’s consent to fulfil its tasks.[11] Eventually, the sentence “in close consultations with all relevant Afghan political actors and stakeholders, including relevant authorities as needed, in support of the people of Afghanistan in a manner consistent with Afghan sovereignty, leadership and ownership”[12] elicited everyone’s agreement.[13]
In any case, both the Special Rapporteur’s and UNAMA’s reports for 2022[14] contain specific reference to the fact that the missions were carried out on Afghan territory together with “all relevant Afghan political actors”: the work was completed, if not with their consent, at least with their open collaboration, thus avoiding a violation of the principle of non-interference.
In relation to Ms. Bonetti’s words, a further legal question arises. Welcoming the renewal of UNAMA’s mandate, the Minister emphasized the need not only “to ensure that the rights of women and girls are guaranteed”, but also to take “a critical step towards accountability” by “prosecut[ing] the offenders responsible for the violations of their rights”. According to the letter of Resolution 2626, by which UNAMA was extended until 17 March 2023, the task mentioned by the Minister does not clearly fall within the mission’s scope. Under Paragraph 5 of the resolution all UNAMA’s tasks are listed in detail, including those of protecting “the human rights of all Afghans” and “advis[ing] on Afghanistan’s implementation of the provisions of instruments […] to which Afghanistan is a State party and by which it is bound, including the Convention on the Elimination of all Forms of Discrimination Against Women” (letter e). The question of prosecuting the offenders of violations is not raised here and did not arise even during the Security Council’s debate that led to the adoption of Resolution 2626.[15] Minister Bonetti possibly intended to refer to UNAMA’s cooperation with Afghan authorities, aimed at providing them with the evidence and organizational support needed to prosecute those who violate women’s rights.
Be that as it may, the question of the “prosecution of offenders” raised by Ms. Bonetti remains of interest, as it concerns the scope of action of peacekeeping missions. The issue is akin to what, in a contiguous field, goes under the name of “accountability turn in fact-finding” – a topic which has been discussed by States and scholars for many years.[16]
In general, both the issue of consent of the “de facto authorities” and that of prosecution of the offenders can be read in light of the legal basis of UN missions. UNAMA was originally established in 2002 as a peacebuilding mission and Resolution 2626 makes no clear reference to the legal basis for the renewal of its mandate. As this is not anchored to Chapter VII, the question of Afghan authorities’ consent and that of the mission’s involvement in prosecution of offenders are thus relevant. While not taking an explicit position on this point in relation to UNAMA, Italy has recently shown to be rather open to an intervention by the Security Council under Chapter VII even on issues beyond the classical conception of international security threats.[17]
One last statement by Ms. Sereni, addressed to the Senate on 14 February 2022,[18] deserves consideration. Reporting on the allocation of Italian resources for humanitarian assistance in Afghanistan, the former Deputy Minister of Foreign Affairs said that
The contribution to the International Committee of the Red Cross in Afghanistan (ICRC), originally planned as part of the Italian humanitarian response and currently under review following the appointment of a Taliban representative as deputy chairman of the Afghan Red Crescent, remains to be decided.[19]
Although there is no duty for States to provide humanitarian assistance to victims in other States under international law,[20] the reported statement may nevertheless appear questionable. The Afghan Red Crescent Society representatives do not seem to have made any remarks regarding the management of incoming funds from other countries, which would justify reconsidering financing. A decision not to approve the disbursement only because of the political affiliation of the representatives of the recipient association might be questionable in light of one or more of the humanitarian principles of humanity, neutrality, impartiality and independence affirmed in 1991 by General Assembly Resolution 46/182.[21]
Filomena Medea Tulli
A quotable version of this post was published in the Italian Yearbook of International Law: Tulli, “Recognition, Fact-Finding Missions and Humanitarian Aid in Afghanistan”, IYIL XXXII (2022), 2023, pp. 494-498; available here.
[1] For a brief overview of the Italian parliamentary discussion on the recognition of the Taliban Government during 2021, see Tulli, “States and Other International Entities: The Non-Recognition of the Taliban Government of Afghanistan”, IYIL, 2022, p. 494 ff.
[2] On 19 January 2022, the Taliban leader, Mr. Hasan Akhund, stated in a press conference that “[a]ll governments, especially Islamic countries, should start recognition”.
[3] In an informal meeting of European Foreign Ministers on 2-3 September 2021 in Brdo, Slovenia, it was agreed that the five “benchmarks” also mentioned by Ms. Sereni (see main text) would be used to assess Afghanistan’s behavior and thus make a decision on the “operational engagement” of Europe: however, it was made clear that engagement “does not mean recognition”. See the Press Statement by the EU High Representative, Mr. Josep Borrell, at the informal meeting of Foreign Affairs Ministers (Gymnich). On the difference between engagement and recognition see Tulli, cit. supra note 1.
[4] See supra note 2.
[5] See most recently the Joint Communiqué of the Special Envoys within the US-European Group on Afghanistan of 23 September 2022 and the Joint Statement from Foreign Ministers on Taliban Decision to Ban Women from Universities of 21 December 2022)
[6] Human Rights Council Resolution A/HRC/RES/48/1, 7 October 2021. The tasks that fall under the mandate of the Special Rapporteur are listed in Art. 12. The resolution was passed by the Council with broad support (28 votes in favor, 5 against and 14 abstentions).
[7] Situation of human rights in Afghanistan – Report of the Special Rapporteur on the situation of human rights in Afghanistan, A/HRC/51/6, 9 September 2022.
[8] Security Council Resolution S/RES/2626, 17 March 2022. The mission’s mandate has been renewed annually by the Council since 2002.
[9] The full text of Minister Bonetti’s speech is available here.
[10] See for instance, para. 6 of Resolution 2626, stressing “the critical importance of a continued presence of UNAMA […] across Afghanistan, and call[ing] upon all relevant Afghan political actors […] to ensure the safety, security and freedom of movement of United Nations and associated personnel throughout the country”.
[11] As reported in Security Council Meeting Record No. 8997, S/PV.8997, 17 March 2022. See, in particular, pp. 5-6.
[12] Resolution 2626, para. 5.
[13] A related issue in drafting Resolution 2626 concerned how to describe the Taliban administration. Interestingly, the initial decision to refer to them as the “de facto authorities” – as it had also been previously done by the Secretary-General – caused resentment among some members of the Security Council, including the United States. The reason lies in the fact that this designation could have entailed a form of recognition of the Taliban Government and thus somehow legitimized it. In referring to the regime, the final version of the resolution speaks, as mentioned, of “all relevant Afghan political actors and stakeholders, including relevant authorities”.In this respect see the Report on the situation in Afghanistan by Secretary-General of 28 January 2022, A/76/667–S/2022/64, and supra note 11.
[14] As for the Special Rapporteur’s report see supra note 7, “Introduction”. The “appreciation to the de facto authorities for their cooperation” is confirmed by the newly published report of 9 February 2023. As for UNAMA, see the Report “Human rights in Afghanistan – 15 August 2021-15 June 2022”, July 2022, p. 6.
[15] See supra note 11.
[16] Inter alia, see Akande and Tonkin, “International Commissions of Inquiry: A New Form of Adjudication?”, EJIL: Talk!, 6 April 2012; Cassese, “Fostering Increased Conformity with International Standards, Monitoring and Institutional Fact-finding”, in Cassese (ed.), Realizing Utopia: The Future of International Law, Oxford, 2012, p. 295 ff.; Frulli, “Fact-Finding or Paving the Road to Criminal Justice? Some Reflections on United Nations Commissions of Inquiry”, JICJ, 2012, p. 1323 ff.; Van den Herik, “Accountability through Fact-Finding: Appraising Inquiry in the Context of Srebrenica”, NILR, 2015, p. 295 ff.
[17] In this regard see Turrini, “The Scope and Means of Action of the United Nations Security Council as Seen by Italy During Its ‘Shared Membership’”, IYIL, 2018, p. 536 ff.
[18] See supra Response to Question No. 4-05943.
[19] Both the President and Vice President of the Afghan Red Crescent Society are currently Taliban members, see the Society’s webpage here.
[20] See Schindler, The Right to Humanitarian Assistance: Right and/or Obligation?, 1995, pp. 2-3.
[21] General Assembly Resolution A/RES/46/182, 19 December 1991. The principle of independence was added to the other principles by General Assembly Resolution 58/114, 17 December 2003.
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