Blog Post | The Taliban in Kabul: some diplomatic challenges
The occupation of the Afghan capital Kabul by the radical Taliban movement on 15 August 2021 received enormous international attention, not least because of the crisis that soon enveloped Kabul airport as desperate Afghans sought to flee the country on evacuation flights mounted by the United States and its allies. Beyond these dramatic and tragic scenes, however, a range of complex questions about Afghanistan’s future remain unaddressed. One particularly troubling area relates to diplomatic engagement with Afghanistan and the various political actors that populate its territory.
The diplomatic landscape had begun to unravel in Afghanistan even before the August 2021 crisis. Australia had closed at Embassy in the Afghan capital on 28 May, although this did not involve any severance of diplomatic relations. With the crisis, however, many more countries evacuated their diplomatic personnel, and in some cases also their locally-employed staff. The ongoing status of diplomatic premises in Kabul remains unclear, although media reports have appeared of Taliban fighters entering the premises of several Nordic missions. The Vienna Convention on Diplomatic Relations of 1961 does not usefully address the question of when protections of inviolability cease once premises are no longer in use,1 but the deeper question in this case is whether the physical evacuation of premises is the same as the abandonment of diplomatic engagement. This matters in particular for states such as Norway, which recognise states but not governments. There is a precedent for missions operating in Kabul even without a government being recognised de jure: the United States maintained its embassy under a chargé d’affaires between 1979 and 1989 even though it did not recognise the regime put in place by the Soviet invasion of Afghanistan in December 1979. For that reason, the Taliban entry into embassy premises might be seen as a violation of Article 22 of the Vienna Convention, although hardly on a scale comparable to the occupation of the US Embassy in Tehran from 1979 to 1981.
A range of additional issues arise for the Taliban as they seek to enhance their international status. In international organisations, the occupancy of seats of particular states will typically be determined through a credentials process, which in the United Nations in particular has an elaborate history. Between 1996 and 2001, the Taliban consistently failed to wrest control of Afghanistan’s UN seat from its opponents, not least because General Assembly resolution 396(v) of 14 December 1950 provided that in the event of contestation over credentials the question should be considered ‘in the light of the Purposes and Principles of the Charter and the circumstances of each case’. Since the Taliban had shown little respect for ‘the Purposes and Principles of the Charter’, it was poorly positioned to secure Afghanistan’s seat, and that may remain the case, with a number of its ‘cabinet ministers’ currently included on the sanctions list compiled pursuant to Security Council Resolution 1988 of 17 June 2011.
Recognition lies within the sovereign discretion of states, and they are free to decide if and when to grant or withhold de jure recognition. Where recognition is concerned, it may matter whether the practice of other states is to recognise states only, or to recognise both states and governments. In the former case, states may act to engage pragmatically with the Taliban over issues such as humanitarian assistance, without taking any steps that might give even the appearance of according them formal legal status or legitimacy. For states that follow the practice of recognising governments as well as states, there may be significant obstacles for the Taliban to overcome. The big prize, of course, is recognition by the United States, but the Taliban decision to appoint as interior minister an FBI-listed terrorist would make such recognition potentially awkward for a US administration. Moreover, it is indeed difficult to see what any state in the wider world might gain by granting de jure recognition to the Taliban as a government in days where resident diplomats are no longer indispensable as plenipotentiaries, and pragmatic communications can be maintained by other means. The Taliban would clearly like to exploit looming humanitarian and human rights crises to demand recognition from states committed to assisting the Afghan people, but given the Taliban’s disposition to give little or nothing in return for concessions, it would be dangerous to go down this path. Furthermore, the Taliban have access to hundreds of millions of dollars from customs revenues at border posts that they should be encouraged to use to alleviate humanitarian concerns.
How long existing Afghan embassies, outside Taliban control, can continue to function will likely have much to do with what budgeted funds they have in place to sustain ongoing activity, but there is no obvious reason why states should interfere with their operations. In particular, exiled Afghan communities may look to such missions for consular support through the issuing of passports and notarisation of documents. It is far from clear that such communities would be even remotely comfortable interacting with embassies containing Taliban personnel. Moreover, the Taliban are simply not like most insurgent groups that seize power. One experienced observer has described them as a ‘multinational criminal cartel’; but they might just as easily, and accurately, be described as a terrorist group. For these reasons, it may be in the interest of a wide range of actors to retain the status quo.
William Maley is Emeritus Professor of Diplomacy at The Australian National University, and author most recently of The Afghanistan Wars (3rd edition, 2021) and Diplomacy, Communication and Peace: Selected Essays (2021).
1. See Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (Oxford: Oxford University Press, 2016) pp.145-146.