Image caption - Speakers at the webinar
The Law Faculty of the University of Colombo (UoC) organised a webinar on the “Fall of Kabul (Afghanistan’s Capital): Challenges to International Law” on 18 August 2021. United Nations (UN) University’s Institute of Comparative Regional Integration Studies Peace and Security Programme Head Prof. Ademola Abass and UoC Law Faculty Public and International Law Department Head and Centre for the Study of Human Rights Director Prof. Wasantha Seneviratne conducted the discussion, while UoC Law Faculty Dean Dr. Nishantha Sampath Punchihewa moderated the event and UoC Institute of Human Resource Advancement lecturer (probationary) K.A.A.N. Thilakarathna co-ordinated the programme. It was attended by many academics, students, and others alike, both from Sri Lanka and overseas.
During the discussion, many aspects of international law affecting the situation in Afghanistan were questioned. One of the pertinent questions that arose was as to whether the UN Security Council (SC) could do anything at the moment. Both Prof. Abass and Prof. Seneviratne pointed out that for the UN SC to get involved with the matter, the situation that has arisen in Afghanistan should be of such a nature that it should threaten the peace, breach the peace, or that there should be an act of aggression which would warrant the UN SC to take measures according to Article 39 of the Charter of the UN, as envisaged under Articles 41 and 42 of the same Charter.
Chapter VII of the UN Charter deals with action with respect to threats to the peace, breaches of the peace, and acts of aggression. Article 39 of the same holds that the UN SC shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42 of the same, in order to maintain or restore international peace and security. Article 41 states that the UN SC may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the UN members to apply such measures which may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication and the severance of diplomatic relations, while Article 42 notes that should the UN SC consider that the measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security, and that such action may include demonstrations, blockade, and other operations by air, sea, or land forces of UN members.
It was pointed out that while there may be many instances in which one may feel the need for the intervention of the UN SC, such is not the mandate given to the UN SC when it was established, where the primary objective was to stop the occurrence of a Third World War. It was further noted that even if any resolutions are brought before the UN SC, such would become futile as the US would inevitably object to any measure, which would undermine the 20 years of effort and money spent to bring democracy to Afghanistan. Prof. Abass expressed strong views on the need for a regional mechanism to combat these kinds of situations, drawing examples from Liberia and Sierra Leone where the Economic Community of West African States (ECOWAS) was able to intervene in the civil unrest that occurred in these countries.
Another debate that emerged in this regard is the issue of the recognition of the Taliban Government that came into power as a result of the insurgency. It was noted that while a government may be recognised as a de jure or de facto, as some powerful nations such as China and Russia have shown a willingness to recognise the Taliban Government, such may be followed by other countries as well. It was argued in the discussion that the recognition of a government, which is very much different to the recognition of a State would frequently be dictated by a political agenda, and at any rate, other governments around the world would have to recognise the Taliban Government as the de facto Government of Afghanistan, as they are wielding the factual powers of the Government there.
Concerning the humanitarian crisis which may arise in Afghanistan, it was pointed out that if a non-international armed conflict will occur, Common Article 3 of the Geneva Conventions of 1949, which is supplemented by the Additional Protocol II of 1977, would be applied in addition to the customary rules.
The Convention (I) for the Amelioration of the Condition of the Wounded and the Sick in Armed Forces in the Field, Geneva, 12 August 1949, deals with conflicts which are not of an international character. Common Article 3 states that in the case of an armed conflict not of an international character, occurring in the territory of one of the High Contracting Parties, each party to the conflict is bound to apply the following provisions. These include persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed “hors de combat” by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
Furthermore, with respect to the above-mentioned persons, as per Common Article 3, the following acts are prohibited at any time and place. The prohibited acts include (a) violence to the life and person, in particular, murder of all kinds, mutilation, cruel treatment, and torture; (b) the taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; and (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples.
Moreover, Common Article 3 dictates that the wounded and the sick be collected and cared for. Also, an impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the parties to the conflict. In addition, the parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. It is also noted that the application of the preceding provisions will not affect the legal status of the parties to the conflict.
On the other hand, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, aims to extend the essential rules of the law of armed conflicts to internal wars.
However, both Prof. Abass and Prof. Seneviratne pointed out that humanitarian law will only be applied where there is an armed conflict, and as the Afghan military surrendered without a fight, the current situation does not warrant such application, unless there is such a conflict between the citizens of Afghanistan and the Taliban. Prof. Seneviratne, when questioned about the possibility of a humanitarian intervention, was very reluctant to agree with such an initiative since the law on humanitarian intervention is still unsettled.
When questioned as to whether the situation occurring in Afghanistan is a failure of international law, Prof. Abass denied such claims, and averred: “Far too often, international law has been criticised for what it has failed to achieve and has been measured for its failures than the successes.”
He was of the opinion that even a talk on the challenges to international law on such types of situations as we find with Afghanistan is evident of the relevance of international law on such a situation. Therefore, international law in itself could not be discredited for what happened and is happening in Afghanistan since, as what took place there is a combination of law, politics, and many other factors.
(This article is sourced from the Faculty of Law of the University of Colombo)Fall of Kabul: Challenges to International Law
25 Aug 2021
Fall of Kabul: Challenges to International Law
25 Aug 2021
Image caption - Speakers at the webinar
The Law Faculty of the University of Colombo (UoC) organised a webinar on the “Fall of Kabul (Afghanistan’s Capital): Challenges to International Law” on 18 August 2021. United Nations (UN) University’s Institute of Comparative Regional Integration Studies Peace and Security Programme Head Prof. Ademola Abass and UoC Law Faculty Public and International Law Department Head and Centre for the Study of Human Rights Director Prof. Wasantha Seneviratne conducted the discussion, while UoC Law Faculty Dean Dr. Nishantha Sampath Punchihewa moderated the event and UoC Institute of Human Resource Advancement lecturer (probationary) K.A.A.N. Thilakarathna co-ordinated the programme. It was attended by many academics, students, and others alike, both from Sri Lanka and overseas.
During the discussion, many aspects of international law affecting the situation in Afghanistan were questioned. One of the pertinent questions that arose was as to whether the UN Security Council (SC) could do anything at the moment. Both Prof. Abass and Prof. Seneviratne pointed out that for the UN SC to get involved with the matter, the situation that has arisen in Afghanistan should be of such a nature that it should threaten the peace, breach the peace, or that there should be an act of aggression which would warrant the UN SC to take measures according to Article 39 of the Charter of the UN, as envisaged under Articles 41 and 42 of the same Charter.
Chapter VII of the UN Charter deals with action with respect to threats to the peace, breaches of the peace, and acts of aggression. Article 39 of the same holds that the UN SC shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42 of the same, in order to maintain or restore international peace and security. Article 41 states that the UN SC may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the UN members to apply such measures which may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication and the severance of diplomatic relations, while Article 42 notes that should the UN SC consider that the measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security, and that such action may include demonstrations, blockade, and other operations by air, sea, or land forces of UN members.
It was pointed out that while there may be many instances in which one may feel the need for the intervention of the UN SC, such is not the mandate given to the UN SC when it was established, where the primary objective was to stop the occurrence of a Third World War. It was further noted that even if any resolutions are brought before the UN SC, such would become futile as the US would inevitably object to any measure, which would undermine the 20 years of effort and money spent to bring democracy to Afghanistan. Prof. Abass expressed strong views on the need for a regional mechanism to combat these kinds of situations, drawing examples from Liberia and Sierra Leone where the Economic Community of West African States (ECOWAS) was able to intervene in the civil unrest that occurred in these countries.
Another debate that emerged in this regard is the issue of the recognition of the Taliban Government that came into power as a result of the insurgency. It was noted that while a government may be recognised as a de jure or de facto, as some powerful nations such as China and Russia have shown a willingness to recognise the Taliban Government, such may be followed by other countries as well. It was argued in the discussion that the recognition of a government, which is very much different to the recognition of a State would frequently be dictated by a political agenda, and at any rate, other governments around the world would have to recognise the Taliban Government as the de facto Government of Afghanistan, as they are wielding the factual powers of the Government there.
Concerning the humanitarian crisis which may arise in Afghanistan, it was pointed out that if a non-international armed conflict will occur, Common Article 3 of the Geneva Conventions of 1949, which is supplemented by the Additional Protocol II of 1977, would be applied in addition to the customary rules.
The Convention (I) for the Amelioration of the Condition of the Wounded and the Sick in Armed Forces in the Field, Geneva, 12 August 1949, deals with conflicts which are not of an international character. Common Article 3 states that in the case of an armed conflict not of an international character, occurring in the territory of one of the High Contracting Parties, each party to the conflict is bound to apply the following provisions. These include persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed “hors de combat” by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
Furthermore, with respect to the above-mentioned persons, as per Common Article 3, the following acts are prohibited at any time and place. The prohibited acts include (a) violence to the life and person, in particular, murder of all kinds, mutilation, cruel treatment, and torture; (b) the taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; and (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples.
Moreover, Common Article 3 dictates that the wounded and the sick be collected and cared for. Also, an impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the parties to the conflict. In addition, the parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. It is also noted that the application of the preceding provisions will not affect the legal status of the parties to the conflict.
On the other hand, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, aims to extend the essential rules of the law of armed conflicts to internal wars.
However, both Prof. Abass and Prof. Seneviratne pointed out that humanitarian law will only be applied where there is an armed conflict, and as the Afghan military surrendered without a fight, the current situation does not warrant such application, unless there is such a conflict between the citizens of Afghanistan and the Taliban. Prof. Seneviratne, when questioned about the possibility of a humanitarian intervention, was very reluctant to agree with such an initiative since the law on humanitarian intervention is still unsettled.
When questioned as to whether the situation occurring in Afghanistan is a failure of international law, Prof. Abass denied such claims, and averred: “Far too often, international law has been criticised for what it has failed to achieve and has been measured for its failures than the successes.”
He was of the opinion that even a talk on the challenges to international law on such types of situations as we find with Afghanistan is evident of the relevance of international law on such a situation. Therefore, international law in itself could not be discredited for what happened and is happening in Afghanistan since, as what took place there is a combination of law, politics, and many other factors.
(This article is sourced from the Faculty of Law of the University of Colombo)Kapruka
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Discover Kapruka, the leading online shopping platform in Sri Lanka, where you can conveniently send Gifts and Flowers to your loved ones for any event. Explore a wide range of popular Shopping Categories on Kapruka, including Toys, Groceries, Electronics, Birthday Cakes, Fruits, Chocolates, Automobile, Mother and Baby Products, Clothing, and Fashion. Additionally, Kapruka offers unique online services like Money Remittance, Astrology, Medicine Delivery, and access to over 700 Top Brands. Also If you’re interested in selling with Kapruka, Partner Central by Kapruka is the best solution to start with. Moreover, through Kapruka Global Shop, you can also enjoy the convenience of purchasing products from renowned platforms like Amazon and eBay and have them delivered to Sri Lanka.Send love straight to their heart this Valentine's with our thoughtful gifts!