The Afghan War and the Responsibility to Rebuild

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1. The fall of Kabul and Joe Biden’s speech of 16 August 2021

With the fall of Kabul on August 15, 2021 and US troops hastily withdrawing from Afghanistan, a process still ongoing at the time of writing this contribution (17 August 2021) an intervention and also an experiment lasting almost two decades has come to an end. This endeavor that had been extremely risky and enormous hopes were attached to it. While it must be left to future historians and political analysts to assess this intervention as a whole, the chaotic and heart-wrenching scenes at Kabul airport and the embarrassing and disconcerting responses coming from government palaces all over the world do not bode well for the outcome of this future judgment.

Here the legal aspects of the last chapter of the Afghanistan intervention and of the withdrawal shall stand at the center of the attention. While much has been written about the International Law aspects of the intervention in this country, the perception could be that International Law has less to say about the ensuing consequences. This view is mistaken as it neglects a rich body of pronunciations, documents and activities on the international level that, while maybe not yet constituting “hard norms” of firmly binding character, form nonetheless a mass of authoritative statements that have found wide support on highest institutional level. They relate to the “Responsibility to Rebuild” as part of the “Responsibility to Protect” (R2?).

How far the present political positions are from these pledges and assurances given in the past is echoed by President Biden´s Remarks on Afghanistan made on August 16, 2021, one day after the collapse of the Afghan Government. There, he stated i.a. the following:

“Our mission in Afghanistan was never supposed to have been nation-building. It was never supposed to be creating a unified, centralized democracy. Our only vital national interest in Afghanistan remains today what it has always been: preventing a terrorist attack on American homeland.”

And he continued: “I´ve argued for many years that our mission should be narrowly focused on counterterrorism, not counterinsurgency or nation-building.”

2. The Responsibility to Rebuild as inherent part of the Responsibility to Protect

Admittedly, as political analysts have stated in the immediate aftermath of this speech, these words were primarily directed to the American people, for “home consumption”. They should reassure them that notwithstanding the dramatic pictures they are seeing on their TV screens that the decision to withdraw speedily was taken in the best interest of the American people and it is for their interest the US President has primarily to take care for. This way, however, International Law aspects are widely disregarded and so are possible long-term effects of such a neglect the relevant International Law documents were intended to harness.

Already in 1992, UN Secretary-General Boutros Ghali emphasized in his “Agenda for Peace” the importance of post-conflict peace-building as part and parcel of an effective, comprehensive peace-diplomacy: “Preventive diplomacy is to avoid a crisis, post-conflict peace-building is to prevent a recurrence.”

It was, however, the Yugoslav war, an uprooting ethnic and religious strife, unprecedented after WW II in Europe, that evidenced the need to look for more fundamental, more structured conflict-resolution approaches on the international level. The concept of R2P introduced by the ICISS Report of 2001 was designed to make a difference by recurring to an understanding of responsibility that would be divided into three sub-branches (responsibility to prevent, to react and to rebuild) with these ramifications interacting reciprocally in a continuous way (see P. Hilpold, in: idem, ed., The Responsibility to Protect, Leiden/Boston 2015, 1 ss.). Against all odds, the concept of R2P was also integrated in the Outcome Document of the World Summit of 2005, although in the relevant para. 138 and 139 no mention was made of the “Responsibility to Rebuild”. In para. 97 of the Outcome Document the introduction of a “Peacebuilding Commission” was envisaged. It was effectively created, but only as a forum for discussing and organizing peacebuilding activities rather than as a directly operative instrument.

As is well known, in the immediate aftermath to the World Summit of 2005, the R2P concept was widely welcomed and applauded. It became part of UN parlance, it penetrated more and more UN documents, UN Secretary-Generals advocated strongly for a corresponding change of UN practice that would fully endorse R2P. International law doctrine engaged strongly in this field, in the true conviction that R2P was more than a new buzzword, but rather a change of paradigm towards a more “people-centred”, a more “humanized” international legal order. The Libya intervention of 2011, ending up in a protracted civil war after NATO troops withdraw following a quick military victory against President Ghaddafi´s troops and the UN Security Council´s blockade in front of an ever more gruesome civil war in Syria starting in 2011 overshadowed the R2P idea. Wrongly, as the growing number of academics specializing in the field of R2P were adamant to prove. It was rather the case that the R2P concept was not applied correctly or that abusive recourse to force was falsely attributed to R2P.

Over the last decade, the more academic interest has grown for R2P, the more it had become clear that all pillars of this concept were closely interlinked. Awareness consolidated that these pillars could not be identified with three successive temporal stages leading from a pre-war situation to war to (definite) peace. It is rather the case that every stage bears in itself elements both for progress and for regress. Only a comprehensive take can make sure that all three stages make full circle and lasting peace in a functioning society sets it (see P. Hilpold, Jus Post Bellum and the Responsibility to Rebuild – Identifying the Contours of an Ever More Important Aspect of R2P, in: 6 Journal of International Humanitarian Legal Studies 2/2015, pp. 284-305).

3. What went wrong in Afghanistan?

The extreme speediness with which the Kabul regime crumbled in the first two weeks of August 2021 caught most observers and governments with absolute surprise. President Biden criticized in his speech the lack of willingness by the Afghan military to fight. As analysts (see the overview of expert statements in the “Intelligencer” of 17 August 2021) have revealed in the aftermath, reality on the ground was far more complex: In this 20 years period the interveners not only missed the opportunity to build up a somewhat working civil administration of the country, reigning in corruption and mismanagement, they were not even capable of building up an Afghan army able to operate autonomously and without foreign air support and help by contractors servicing helicopters and air planes.

Afghanistan could therefore be seen as a case study for the need of the “Responsibility to Rebuild” to be taken seriously and it gives prove of the fact that without rebuilding a working societal structure even the “Responsibility to React” (the military intervention in the stricter sense) will ultimately fail. Of course, in Afghanistan the challenge was enormous. The far-reaching destruction of the educational system in the years before the intervention and in particular also the systematic discrimination of women in education and broader society have resulted in a situation where not only civil government but also the Afghan military lacked the foundations for the recruitment of a sufficient number of well-instructed technicians indispensable for running a somewhat modern civil and military administration. Even if the US government had fully gasped this problem it could hardly be argued that the US government would have been responsible to stem all the ensuing costs. There may be a presumption that the intervening states are the first be called to contribute to the costs of the rebuilding but how these costs are ultimately to be distributed, to what extent the international community is called to participate, is a widely open question (see C. Focarelli, in P. Hilpold, R2P, 2015, p. 423 ss.).

4. Conclusions

Thus it can be argued that President Biden´s speech of 16 August 2021 is to be criticized when it seems fo fully ignore the concept of R2P with the Responsibility to Rebuild as an essential part of it and when it casts blame for the eventual failure of this intervention on the Afghans themselves. On the other hand, however, it is neither possible to require the United States to shoulder all the costs of the rebuilding process with no limit as to time and amount. If the mission in Afghanistan was to fight one of the pernicious sources of international terrorism this fight was carried out also in the interest of the entire state community and this should have had, at least partial consequences also for the distribution of the costs. It could be argued that the state community should have been confronted with these facts at a much earlier stage, for example in the context of an international Afghanistan conference. R2P is not dead and neither could it be argued that the Responsibility to Rebuild would be an utopian endeavor. Quite the contrary: The consequences of this responsibility not taken in Afghanistan are before our eyes.

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