India should tread with caution in Afghanistan

It was a brazen display of disregard for diplomacy and negotiated settlement even as the Afghan and non-Afghan negotiators were engaged in the Doha parleys. Ironically, India was kept out of the Doha and Moscow negotiations wherein the rival powers sought to play games on the Afghan chessboard. India was left high and dry, ironically at a time when the country holds the presidency of the UN Security Council.

UNFOLDING DRAMA: India will have to keep a watch on events in Afghanistan. Reuters

Bharat H Desai

jawaharlal Nehru Chair and Professor of International Law, JNU

ON August 15, as India celebrated Independence Day, a renegade terrorist entity overran Afghan territory. As the world watched helplessly and the US and NATO forces remained engaged in a hurried departure after two decades of presence, the Taliban rushed to capture Kabul in a sweep reminiscent of medieval invaders. The return of the Taliban, after their brutal 1996-2001 rule, has defied legality and legitimacy that makes the international system run.

India now faces a serious international law challenge on how to deal with a renegade Taliban for a variety of reasons, including its designation as a group engaged in “violent and terrorist activities” by the UN Security Council resolution 1988 of June 17, 2011. In a replay of their previous brutal reign of terror, the Taliban have seized power by displacing the democratically elected government of President Abdul Ghani. It was a brazen display of disregard for diplomacy and negotiated settlement even as the Afghan and non-Afghan negotiators were engaged in the Doha parleys. Ironically, India was kept out of the Doha and Moscow negotiations wherein the rival powers sought to play games on the Afghan chessboard. India was left high and dry and its famed soft power and huge investments lay in a shambles. It is more ironical since this defiance has taken place in August, when India holds the presidency of the UNSC.

Recognition of a belligerent group such as the Taliban remains a matter of policy and international law. As a person of international law, a state needs to possess (a) permanent population (b) defined territory; (c) government; (d) and the capacity to enter into relations with the other states. In this case, Afghanistan’s statehood is not in question. Hence, India needs to exercise the sovereign prerogative, a politico-diplomatic function in national interest on the basis of key requirements of international law. Now, the Taliban have forcibly captured the Afghan territory and remains a proscribed entity by the UNSC. Based on its horrific past actions, the Taliban’s credentials remain highly suspect. They still have no ‘effective control’ over the territory. In these circumstances, India has to hold the moral high ground as well as for sound legal reasoning, refuse to deal with the Taliban. Most states do not per se recognise ‘governments’, especially when there is a forcible takeover of power like in the case of the Taliban.

In a fluid situation, the Indian approach needs razor-sharp clarity, devoid of perceived fears of Pakistani hand or even concerns for geo-strategic interests. Though it has faded from public memory, one cannot but recall the steadfast handling of the Taliban by the then External Affairs Minister Jaswant Singh. As Prime Minister Vajpayee’s troubleshooter, it was Jaswant Singh’s statesmanship that came to the fore in the December 1999 handling of the hijacked Indian Airlines plane at Kandahar. Jaswant Singh, in his face-off with the Taliban’s so-called foreign minister, made it clear that his shaking hands with the ‘gentleman’ concerned did not amount to Indian recognition of the Taliban. It was not without reason that Strobe Talbott, his US counterpart in the nuclear negotiations, prophesised that: “Awaiting statesmanship in the future that I can only hope, on the Indian side, will approximate the standard set by Jaswant Singh.” It seems we sorely need that statesmanship today in dealing with the Taliban.

The seeds of legitimacy for the Taliban’s violent ways were sown in the unilateral US agreement of February 29, 2020. Ironically designated for “bringing peace to Afghanistan”, the US explicitly termed the other side as the “Islamic Emirate of Afghanistan which is not recognised by the United States as a state and is known as the Taliban”. This was a brazen act flying in the face of grave doubts of other powers and even keeping the UNSC in the dark. Can a permanent member sign an agreement with a non-state actor that the UNSC itself designated as a terror group and imposed sanctions on it?

The shocks resulting from the Taliban’s earlier seizure of power are still fresh. In full glare, the Taliban had pulled out the then Afghan president Najibullah hiding in the UN compound in Kabul and killed him as an exemplar. It entailed not only the killing of a head of the state but also violation of the UN mission. It was followed by a swift edict issued by the Taliban chief Mullah Omar on February 26, 2001, that led to an unprecedented erasing of Afghanistan’s pre-Islamic cultural history, including destruction of the giant Bamiyan Buddha statues. The then UN Secretary-General Kofi Annan’s appeal fell on deaf ears as the Taliban refused to abide by their “previous commitments to protect Afghanistan’s cultural heritage in general, and the two great Buddhist sculptures in Bamiyan in particular.”

“Destroying any relic, any monument, any statue will only prolong the climate of conflict,” Kofi Annan had said. The then UNESCO head, Koichiro Matsuura, expressed distress at the Taliban’s barbaric act and rushed his special envoy Pierre Lafrance to persuade them without success. The Afghan crisis posed a challenge for ensuring effectiveness of international law in 2001 as it does now in 2021. At the time, the Taliban was not recognised by anyone except Pakistan, the UAE and Saudi Arabia. So is the case now.

The Taliban’s rule placed Afghanistan in isolation as it is likely to happen now with the current triumphalism of its backers such as Pakistan. The UNSC-imposed sanctions vide resolution 1267 (1999) continue wherein the Taliban was asked to “stop providing sanctuary and training for international terrorists and their organisations”. These sanctions were further tightened by the SC resolution 1333 (2000). The UNSC had repeatedly underscored respect for the cultural and historical heritage of Afghanistan.

Thus, it will make sense for India not to rush to recognise the Taliban. The scramble at Kabul airport speaks volumes about what lies in store, not only for the diplomatic missions but also the Afghan people who have desperately tried to flee.

India still has a key role to play in adjudging the credentials and fixing the Taliban’s actions. In fact, India can play the card of holding the Taliban accountable by mooting a tailor-made post-conflict justice mechanism, including an ad-hoc criminal tribunal. India needs patience, sagacity and the moral high ground. Any decision in dealing with the Taliban-led government has to be based on the touchstone of international law.