Will the Taliban Represent Afghanistan at the UN General Assembly?

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The work of the Credentials Committee of the General Assembly is normally procedural. Typically, the Committee reviews the credentials submitted by state representatives, and ensures they comply with the Assembly’s procedural rules.  The Committee is scarcely ever called upon to consider matters of government legitimacy. 

In stark contrast to this status quo, it seems this year’s Credentials Committee will be called upon to consider not just one, but two, questions of government legitimacy. Not only will it likely be called upon to consider whether to recognise Myanmar’s military junta or National Unity Government as the legitimate representative of Myanmar, but now, it seems likely that the Taliban will submit credentials claiming to be the new government of Afghanistan.   

This post does not seek to review the law relating to credentials, which is extensively described in this recent post by Professor Larry Johnson in Just Security. Rather, this post describes, for illustrative purposes, the way in which the Credentials Committee handled the previous period of Taliban rule, and then reviews the approach taken by the Committee on occasions that have arisen in the past three decades where government legitimacy has been in question. Finally, this post considers the circumstances facing the Credentials Committee now in relation to Afghanistan, and concludes by drawing attention to state obligations in relation to serious breaches of peremptory norms of international law, such as crimes against humanity and violations of the fundamental rules of international humanitarian law.

Afghanistan at the General Assembly, 1996-2001

In September 1996, representatives of Afghanistan’s Rabbani-led government submitted their credentials to the UN Secretariat. Later that month, the Taliban stormed into Kabul and declared themselves the government of Afghanistan.

In October the Taliban wrote to the UN Secretariat, asserting that President Rabanni’s delegation did not represent Afghanistan. The Taliban’s communication did not, however, include a list of new representatives, and as such – in the view of the UN Legal Counsel – did not constitute ‘credentials’. In the meeting of the Credentials Committee that followed, the Netherlands and Russia argued that because the Rabbani government was ‘still the government’, the most ‘reasonable and cautious approach’ would be to accept the credentials of that government’s delegation. Conversely, the US proposed that the Committee should defer its decision.  The Chairman of the Credentials Committee agreed, noting that a deferral would enable Afghanistan’s currently seated representative to continue to provisionally represent Afghanistan. And so it was decided (see the 1996 Report of the Credentials Committee).

From 1997 to 2000, both the Rabbani Government and the Taliban submitted credentials.  The General Assembly continued to defer its decision, allowing President Rabbani’s representatives to ‘continue to participate [provisionally] in the work of the General Assembly’ (see the 1997, 1998, 1999 and 2000 reports of the Credentials Committee). Then in 2001, the Credentials Committee noted that the UN Secretariat had been informed that the Interim Authority for Afghanistan would be taking office in December 2001, and that formal credentials were forthcoming. On that basis, Afghanistan’s credentials were accepted.

Other post-1990 credentials disputes

On occasions in the last three decades, the General Assembly has accepted the credentials of deposed democratically-elected governments. Following military coups in Liberia (1990), Haiti (1991) and Sierra Leone (1996), the military juntas never submitted credentials, and the Credentials Committee continued to recognise the credentials of the deposed governments (see the 1990, 1991 and 1996 reports of the Credentials Committee). Conversely, following the military coup in Guinea and the unconstitutional usurpation of power in Madagascar, both in 2009, the newly incumbent (unconstitutional) governments did submit credentials, and the deposed governments did not. In both cases, the Credentials Committee declined to accept the credentials submitted, on the understanding that the previously-credentialled representatives would retain the right to participate in the Assembly’s work. 

In the rare situations in which the Credentials Committee has received competing credentials claims, it has either deferred its decision, or accepted one set of credentials in preference to the other. Following Hun Sen’s coup in Cambodia in 1997, the Credentials Committee – faced with competing claims from King Sihanouk and Prince Ranariddh – deferred its decision, on the understanding that ‘no one would occupy’ Cambodia’s seat for the time being. In relation to Libya in 2011, faced with competing claims from Gaddafi and the nascent National Transitional Council, the Committee decided to accept the credentials of the latter. 

Afghanistan at the General Assembly in 2021

It remains to be seen whether the Taliban and/or remnants of Ashraf Ghani’s government will submit credentials to the UN Secretariat in September.  What we do know, though, is that the circumstances facing the credentials committee are not exactly as they were in 1996.

Following their assumption of power in 1996, one of the Taliban’s first acts was to drag former president Najibullah out of the UN compound and hang him in the street. They banned music and television, closed girls’ schools, banned women from working, stoned women for adultery, staged mass executions, and provided sanctuary to Al-Qaeda.  The Taliban controlled most of the country, but the combined forces of Ahmed Shah Masood, Rabbani’s military commander, and General Abdul Rashid Dostam (the Northern Alliance) controlled some of the north-eastern provinces.  Rabbani fled Kabul, but remained in the country, and continued to claim to represent the Afghan Government.  In short, the Taliban ruled, but did not appear very serious about international recognition, and the civil conflict persisted, and there was a rival government with a claim to power. 

Now, however, as Tess Bridgeman and Ryan Goodman wrote recently, ‘what is clear is that elected President of Afghanistan Ashraf Ghani … is not claiming he is still in charge’. Indeed, Ghani has seemingly recognised the Taliban as the new rulers of Afghanistan, saying they have ‘won victory’. The Taliban, for its part, has said it will form an ‘open, inclusive and Islamic government’. However horrified we may be by this turn of events, and for all the rightful scepticism regarding the Taliban’s claims to inclusivity and human rights (and, abundant evidence to the contrary), it does appear that on this occasion the Taliban are seeking international recognition, and there is a question regarding the availability of an alternative.

If neither the Taliban nor other Afghan authority submit credentials this year, the Credentials Committee will obviously not be called upon to make a decision. The Assembly’s procedural rules do not say that where a member state fails to submit credentials, the previously-credentialled representative remains provisionally seated; as such, in such a scenario Afghanistan’s seat at the General Assembly would presumably go temporarily unoccupied. Conversely, if either the Taliban and/or other authority claiming to represent Afghanistan submit credentials, based on the above precedent, it would appear most likely that the Assembly will defer its decision. This could be on the understanding that, as for Afghanistan in 1996-2000, Afghanistan’s previously-credentialled representative continues to participate in the work of the General Assembly; alternatively, as for Cambodia in 1997, it could be on the understanding that Afghanistan’s seat will go temporarily unoccupied.

State obligations in relation to crimes against humanity and violations of international humanitarian law

Whatever the Assembly’s procedural rules may say about the credentials process, from a human rights perspective, the Taliban is still a pariah regime. As recently expressed by human rights experts, the Taliban’s military offensive has been ‘marked by a relentless campaign of direct targeting of civilians, civil society and journalists, summary executions, assassination of human rights defenders, arbitrary detention, mass executions of civilians, and unlawful restrictions on the human rights of women and girls.’ That statement urged states to have the ‘moral courage’ to act, as the Taliban ‘overruns … Afghanistan and engages in acts that may amount to war crimes and crimes against humanity’.

According to the International Law Commission (ILC), states have an obligation to cooperate to end serious breaches of peremptory norms of international law. It is reasonably well established that the prohibition of crimes against humanity is a peremptory norm (see here and here), as are the basic rules of international humanitarian law (here and here). As such, if states have reason to believe that the Taliban are seriously breaching those norms, they are obliged to cooperate to bring those breaches to an end. International law provides scarce guidance regarding precisely what states are obliged to do to fulfil their obligation to cooperate, however the ILC has said that ‘where an international organisation has discretion to act, the obligation to cooperate imposes a duty on the members of that international organisation to act with a view to the organisation exercising that discretion in a manner to bring to an end the breach of a peremptory norm of international law.’

When the time comes to consider whether to accord the Taliban the privilege of representing Afghanistan in the General Assembly, states should be mindful of this obligation. Of course, it is unlikely that refusing to recognise the Taliban’s credentials would in itself suffice to stop the Taliban committing heinous crimes. However, if the Taliban is indeed seeking international recognition, it seems reasonable to suppose that denying them a seat at the table at the General Assembly might be one thing the international community could do to incentivise better adherence to international human rights and humanitarian law.

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Comments

Emmanuella Chika Ezeonwu says

September 1, 2021

Hi Rebecca, your article is well thought and written. However, my question is what type of government should the government of the Taliban in Afghanistan be called since it is not a military coup? Thank you!

Moshe Hirsch says

September 3, 2021

Thanks for your excellent post.
In light of the competing interests, and the need to have some sort of ‘conditionality’, perhaps it’s desirable to defer the decision for one year or two (without any representative) and examine this issue again in the Committee after having some evidence regarding compliance with human rights law?

Grant Rennie says

September 8, 2021

The previous govt. supplied credentials back in July for Ghulam M. Isaczai.
https://www.un.org/press/en/2021/bio5408.doc.htm
Would these not be considered by the Credentials Committee at this session?
If so, the Taliban would need to submit credentials, or challenge them, to keep him out.