Small conflicts with big impact: The Tajik-Kyrgyz war no one talks about

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The whole world is shaken by the tragic events happening along Ukrainian frontlines. Other conflicts, however, including those which might be profoundly important for regional, and perhaps even global security remain overlooked. One such conflict is the recent escalation of violence on the Tajik-Kyrgyz border that remained mostly uncovered by international media. The exchange of fire between the two Central Asian states is nothing new, yet, the September 2022 escalation should trigger much more concerns within the international community. There is, on the one hand, Tajikistan which positions itself as a “security guard” keeping Eurasia separated from Afghanistan and Kyrgyzstan, on the other, that benefits from various international border security assistance programs as well as economic partnerships with China. The narrative used by those few international actors that talk about the conflict is built around the term “border clashes”. While the use of this term might well be a policy-driven decision in order to avoid the escalation of the situation, there should be more clarity with regard to its international legal qualification. Therefore, this piece aims at discussing whether the Tajik-Kyrgyz border conflict has risen to an international armed conflict and whether parties could invoke the right of self-defence.

On September 14, 2022, Tajik and Kyrgyz forces exchanged gunfire along different points of the border, including civilian-populated villages and towns. Both countries have traded blame for initiating the fighting. Despite the attempts to secure a ceasefire, artillery shelling escalated on September 16 and enlarged from border areas into the undisputed Kyrgyz territory, in particular the city of Batken. The fighting involved hard weaponry including tanks and rocket launchers.  As a result, at least 62 people, including civilians, died on the Kyrgyz side and 140,000 had to leave their homes. Hundreds of houses and other civilian infrastructure in Kyrgyzstan were set on fire and destroyed. The Tajik government so far has claimed 35 deaths.

Tensions along the non-demarcated borders in Central Asia are not new. The Tajik-Kyrgyz conflict has a long and complex history. The border between the two states is nearly 1000 km long, yet approximately half of it has not been demarcated since 1991. The Ferghana Valley region is densely populated by three major ethnic groups – Tajiks, Uzbeks, and Kyrgyz, who co-exist on the territory where ethnic and political borders do not coincide. Additionally, the Ferghana Valley map is marked by territorial units – enclaves, which aggravate land and water disputes.

 

Since 1991, the two countries have continuously exchanged fire (in 2000, 2003, 2005, 2008, 2011, 2014, 2015). Some reports show that in the span of two years between 2011 and 2013, 63 violent incidents happened on the Kyrgyz-Tajik border, ranging from small fights to hostage-taking.

In April 2021, the conflict intensified. Big-scale fighting began in at least a dozen of Kyrgyz villages in districts of Batken and Leilek – territories bordering Tajikistan, including the enclave Vorukh. The reason for the escalation was the instalment of surveillance cameras at a water distribution point near Vorukh. As a result, at least 41 people died and hundreds were wounded on both sides.

The escalation of violence in the last two years is a worrisome development. The 2021 events triggered an unprecedented reaction within the Kyrgyz civil society. In June 2021, Kyrgyz academics together with multiple NGOs and CSOs sent a communication to the International Criminal Court asking to initiate an investigation into alleged war crimes committed by Tajik governmental officials. Kyrgyzstan did not ratify the Rome Statute. However, Tajikistan ratified the document back in May 2000, allowing the Court to exercise territorial jurisdiction. This initiative, however, did not receive support from the Kyrgyz president, who stated that all disputes between the two states should be resolved via other channels.

The ICC communication is not available online, which makes it hard to check the rationale that the Kyrgyz side tried to advocate for in the document. Therefore, one of the goals of this piece is to analyze whether the escalation of violence on the border between Kyrgyzstan and Tajikistan could be qualified as an international armed conflict and whether any party could invoke the right to self-defence.

The very few international media outlets that covered the news about the conflict and certain international and non-governmental organizations still use the term “border clash” to describe the situation. Yet, it is not a legal term of art, which makes the legal analysis of the situation at least not straightforward. It is hard to confirm or refute the evidence provided by Kyrgyzstan and Tajikistan as both sides produce contradictory accounts. Moreover, non of the relevant IOs and international media are present in the region to conduct fact-finding. The situation aggravates by the fact that the Tajik media is heavily controlled by the government and the civil society is relatively weak when compared to Kyrgyzstan. Thus, the following analysis will be based on the available and confirmed data by independent regional journalists.

Video footage from both sides suggests that Tajikistan used heavy weaponry and military personnel on September 14, which might prove that this was a planned military operation by the Tajik forces. Moreover, photo and video evidence shows that Tajikistan targeted civilian infrastructure, including in undisputed territories such as the airport in the city of Batken and a strategically important bridge that connected several villages in the Batken region. The Kyrgyz side has also reported indiscriminate shelling on its territory, which was the main reason for evacuating those 140,000 who are now internally displaced. The civil movement Bashtan Bashta, initiated by the youth in Kyrgyzstan, analyzed NASA maps that recorded fires and found out that almost all large-scale destructions occurred on the territory of Kyrgyzstan.

While both sides do not take responsibility for the initial attack and no independent investigation has been conducted, one fact is clear – both states have used force against each other. The question here is whether the use of force rose to the level of armed attack as Kyrgyzstan insisted that it used retaliatory measures solely for the purpose of self-defence, invoking Article 51 or the UN Charter. Yet, neither Kyrgyzstan nor Tajikistan sent an official Article 51 letter to the President of the Security Council justifying their military actions.

Article 51 is triggered “if an armed attack occurs” and requires a state sponsor of the armed attack. As known, the threshold for qualifying a hostile action as an armed attack is rather high. The ICJ jurisprudence tends to focus on particular elements of a potential armed attack, namely its gravity, scale and effects. In the Nicaragua case, the ICJ suggested (para 195) that a “mere frontier incident” does not rise to the level of an armed attack. The Eritrea-Ethiopia Claims Commission similarly ruled that “geographically limited clashes … along a remote, unmarked, and disputed border … were not of a magnitude to constitute an armed attack” and “[l]ocalized border encounters between small infantry units, even those involving the loss of life, do not constitute an armed attack for purposes of the Charter.” Yet, while elaborating on the illustrative examples of what could constitute an armed attack, the ICJ stated (para 195) that deploying regular armed forces, irregular militias or other armed groups across the border will generally satisfy the threshold for an armed attack. Additionally, customary practice suggests that uses of force with sufficient gravity to constitute an armed attack are those resulting in death or destruction. As described above, the escalation of violence in September 2022 resulted in at least 62 deaths on the Kyrgyz side.

While defining whether the right to self-defence could be triggered is subject to debate, a more straightforward issue here is whether international humanitarian law applies in the given situation. The threshold for acknowledging that the situation between two (or more) states has reached the level of an international armed conflict is low. The Geneva Conventions do not provide for the definition of an armed conflict. However, the Commentary to the Geneva Conventions explains that “[a]ny difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2.” It further adds, “[i]t makes no difference how long the conflict lasts, how much slaughter takes place, or how numerous are the participating forces[…].” Therefore, there is little doubt that at least April 2021 and September 2022 events on the Tajik-Kyrgyz border could be qualified as an international armed conflict. Yet, given that both parties sought ceasefire, concluded peace agreements (both in 2021 and already in 2022) and it seems that combat-related manoeuvres have ended, the international armed conflict between them might have already ended.

Nevertheless, labelling the Tajik-Kyrgyz conflict merely as “border clashes” or “border skirmish” might pose some risks as the incorrect qualification creates an illusion that the situation does not require a serious reaction from the international community, which might transform sporadic and rapid escalations of violence into “unstoppable cycle of force and counterforce.” Folding the conflict and its 2021 and 2022 escalations into a narrative of “clashes” implies that the tensions between the two states will inevitably continue as no international organization or other states try to condemn the violence. The term “clashes” also suggests that it is normal to use heavy weapons and an official army to destroy civilian infrastructure to resolve local disputes. Most importantly, the wrong classification fails to hold those who authorized the use of force accountable – a very dangerous practice (as seen in the situation with Russia). Lastly, the existence of an armed conflict has an important impact on the operation of international law, namely the application of international humanitarian law. This could, for instance, give those fleeing the conflict region the right to asylum.

Language is a powerful tool in times of conflict. Language frames conflicts. The deliberate use of certain terms instead of others has the potential to neglect the scale of events as well as the political context and its historical repercussions. Many people have already died in the Tajik-Kyrgyz conflict and hundreds of houses and businesses were destroyed. The international community should get more involved in the discussions about the conflict. Preventing further escalations is key for the region and it appears to be difficult without the acknowledgment of the armed conflict and the urgent need to stop it.

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