KABUL, Afghanistan — The Taliban’s reestablishment of control over Afghanistan following their seizure of Kabul on August 15, 2021, has raised questions about their legitimacy as a government under international law. The Taliban’s dismal record on human rights, particularly their discriminatory gender policies, has drawn criticism from legal scholars who argue that these policies disqualify them from being recognized as the country’s legitimate government.
According to Afghan legal scholar Haroun Rahimi, the Taliban’s ability to be recognized as a government hinges on their willingness to adhere to modern-day international human rights law. However, their commitment to the Hanafi brand of Islamic jurisprudence, which is non-derogable in their eyes, may fundamentally prevent them from accommodating Afghanistan’s international human rights obligations. The Taliban regime promotes the near absolutism of state sovereignty within its borders, seeking inclusion in the international legal system without undertaking domestic legal reforms.
Afghanistan has seen a shift in its government structure since the Taliban’s rise to power. The internationally sponsored Islamic Republic of Afghanistan (IRA) has been replaced by the Islamic Emirate of Afghanistan (IEA). The last president and vice president of the IRA argue that, per the IRA constitution, the leadership of the old regime still possesses the legal authority to represent the Afghan state due to the absence of a legal transfer of power. However, many states, including the United States, have refused to recognize Afghanistan’s government since August 2021.
The Taliban’s human rights record, particularly their gender policies, has been a major factor in the international community’s reluctance to recognize them as a legitimate government. The Taliban’s treatment of women and gender-based discrimination have been deemed as violating basic human rights. Critics argue that international law has evolved to favor democratic or constitutional rule and respect for human rights as criteria for recognizing a government. The severity of the Taliban’s gender policies, which have been compared to gender apartheid, may disqualify them from international recognition based on a norm that prohibits extreme forms of gender-based discrimination.
Another factor influencing the recognition of the Taliban government is the United Nations Security Council (UNSC) sanctions imposed on the group. While being subject to sanctions does not automatically disqualify an entity from being considered a government under international law, the UNSC sanctions limit interactions with a Taliban-controlled government. The sanctions have created barriers to vital humanitarian and aid assistance to Afghanistan.
The Taliban’s approach to international law further complicates their recognition as a government. They reject the authority of international human rights laws, asserting that their interpretation of Islam supersedes any obligations imposed by international law. The Taliban’s stance on human rights laws and their robust relations with transnational terrorist groups have raised concerns among neighboring states.
The question of whether the Taliban government can be recognized internationally depends on their willingness to comply with modern-day international law and human rights standards. If the international community continues to refuse recognition based on the Taliban’s discriminatory gender policies, Afghanistan may face significant challenges in dealing with its numerous crises. However, regardless of recognition, the de facto authorities in Afghanistan are still obligated to adhere to international human rights and humanitarian laws.
In conclusion, the Taliban’s controversial human rights record, their rejection of international human rights laws, and the UNSC sanctions have cast doubts on their recognition as a legitimate government under international law. The international community’s refusal to recognize them may reflect an evolving norm that prohibits extreme gender-based discrimination. The question of recognition is crucial for Afghanistan as it grapples with internal and external challenges.