PAKISTAN: A LEGAL PERSPECTIVE
The United States’ (US) withdrawal from Afghanistan was completed by the 30th of August 2021, despite the Taliban toppling the government earlier in the month. The Pentagon reached this decision as they realised the humanitarian and economic strain the War on Terror was having. However, it was announced after the killing of Osama bin Laden in 2011 that the eventual process of demilitarising Afghanistan would begin.
In December 2018, it was decided between the US government and the Taliban that the US would eventually demilitarise Afghanistan, completely erasing its presence in Afghanistan. On 29th February 2020, the US and the Taliban signed a peace agreement. It detailed a complete withdrawal of US troops over fourteen months. Along with other particulars, this agreement specified that the Taliban would prevent affiliates of Al-Qaeda and other militant non-state actors from operating within Afghanistan. It has been over two years since the complete withdrawal of US troops from Afghanistan, and this exercise has led to several issues developing both within the state and, most recently, in the region.
As early as March 2023, reports of US-made arms and ammunition finding their way into Pakistan’s black market emerged. These reports found merit in the fact that the Pentagon had, a year earlier in its report to Congress, estimated that at least “US$ 7.2 billion worth of aircrafts, guns, vehicles, ammunition, and specialised equipment such as night vision goggles, biometric devices…,” were left behind in Afghanistan. The Tehreek-e-Taliban Pakistan’s (TTP) attacks have increased by 27% since the Taliban takeover of Afghanistan. This is extremely alarming for Pakistan’s national security.
The US, like any other state, has a responsibility to ensure that no civilian population is harmed when engaging in armed conflict. Furthermore, under the agreement to bring peace to Afghanistan, one can argue that the US remains responsible for areas previously under their control until negotiations and dialogue determine a new post-settlement Afghan government.
Though the US claims not to have left behind any weapons, ammunition, and explosives post-withdrawal, this claim is mitigated by the Secretary General’s Report. It is clarified that these weapons being used for cross-border terrorism are indeed those previously belonging to former Afghan National Defence and Security Forces (ANDSF). It should be noted that former ANDSF have been formally trained by the US and North Atlantic Treaty Organisation (NATO).
Furthermore, a report by the US Institute of Peace claims that “The ANDSF have long been dependent on US financial and operational assistance, as well as support from NATO. They are expected to remain dependent on foreign aid for many years”.
Thus, the US and NATO can be held responsible for the increase in non-state militant attacks in Pakistan and cross-border terrorism since they essentially did leave behind weapons with the ANDSF, who were trained and aided solely by them. These weapons were then acquired by militants and made their way across into Pakistan, which was left to deal with increased attacks by such entities, as well as national security risks. The fact that non-state actors have easily accessed arms and ammunition from neighbouring Afghanistan and are carrying out attacks frequently illustrates that the security of Pakistan has indeed been compromised.
The US has a responsibility under the United Nations (UN) Security Council Resolution passed in 2001, which asserts that all states must help eliminate the supply of weapons to terrorists. By leaving behind arms and ammunition in Afghanistan, the US has directly and indirectly helped supply weapons to non-state terrorist organisations in Afghanistan. It should be noted that under the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices 1996 (Amended Protocol II), the US is obligated to remove all weapons, ammunition, and explosives at the cessation of hostile activities.
Pakistan is responsible to its citizens to ensure that they are not harmed in any way, as enshrined in the Constitution of the Islamic Republic of Pakistan 1973.
Afghanistan has a responsibility, in keeping with its obligations under the Doha Accord 2020, that no non-state actors or militant groups are armed or trained or have access to influence in any way. The weapons, ammunition, and explosives that have made their way into Pakistan once belonged to the ANDSF, who were trained, supervised, and aided by the US and its allies, including NATO. Under the agreement for bringing peace to Afghanistan 2020, Afghanistan has the responsibility to ensure that no harm or terrorist attacks take place originating from Afghan soil, targeting the US or its allies, which includes Pakistan.
Afghanistan has a responsibility to recognise the fact that these attacks are a regional issue and not just an internal one, as they claim. The TTP has no legitimate links with the state of Pakistan and is a non-state actor that cannot be curbed and controlled in a way one can with a democratic institution. The TTP is inherently linked to Kabul and has often claimed to be the Pakistani Chapter of the Taliban.
At this point, there is no concrete framework to deal with the issue at hand. Still, there are some measures one can take to reduce the likelihood of attacks carried out by non-state actors who have access to arms and ammunition left behind by the US and its allies.
A substantive measure would be strengthening one’s borders under conventions such as the UN Convention against Transnational Organised Crime 2000. This details a complex framework that includes cooperation between border control agencies, establishing direct communication channels, etc. Another course of action would be raising the issue on international platforms such as the UN, as Ambassador Munir Akram, Islamabad’s permanent representative to the UN, is doing. This would, of course, include appealing to international forums and exerting diplomatic pressure to hold the US and its allies accountable for breaching their obligations and requesting the UN to conduct an impartial and thorough investigation through one of its agencies, such as the United Nations Assistance Mission in Afghanistan (UNAMA), which has a liaison office in the capital of Pakistan also. Its mission states explicitly that it will take all necessary steps to “encourage regional partners to contribute to a stable and prosperous Afghanistan, which would benefit the region’s stability and development”. After such an investigation, a report should be drafted so that one can identify the exact mechanism and route through which arms and ammunition came into possession of the TTP and other non-state militants.
Another course of action that can be pursued would be passing a Presidential Ordinance to regulate arms within Pakistan further, thus making it more difficult for individuals to bear arms without being adequately regulated. Public awareness campaigns dispelling misinformation and propaganda being spread by non-state actors, militant groups, etc., are also vital, significantly narrowing the sphere of influence of such actors. However, structuring a decisive strategy and framework for eliminating these non-state actors’ presence in Pakistan is of the utmost importance. This step is within Pakistan’s rights and obligations to its citizens.