Moral or Legal Responsibilities? Protection in Afghanistan Once a Party Leaves

[Marnie Lloydd is Lecturer and Associate-Director of the New Zealand Centre for Public Law at Te Herenga Waka-Victoria University of Wellington, with extensive experience in the international humanitarian sector.]

Can there be ongoing duties to protect civilians once a state is no longer party to an armed conflict? A November 2021 decision of the High Court of New Zealand raised the possibility of ongoing legal, or at least moral, obligations to protect Afghans associated with the New Zealand Defence Force (NZDF) operations in Afghanistan now New Zealand troops have left the country.

Afghan Nationals v The Minister for Immigration [2021] NZHC 3154

The judgment concerned the handling by New Zealand of visa applications for families of Afghan citizens who had worked as interpreters for the NZDF in Afghanistan or supported NZDF troops in other ways. Many former interpreters working with the NZDF are now resident in and citizens of New Zealand. The application concerned extended family members in danger in the current circumstances in Afghanistan including because of this connection to the NZDF. The family members had applied for visas to come to New Zealand long before the fall of the Afghan government and takeover by the Taliban. These applications had been handled but not completed largely due to intervening Covid 19-related border restrictions in New Zealand. After the fall of the Afghan Government to the Taliban in August 2021, critical purpose visitor visas which provided exemptions to Covid-related border restrictions on exceptional humanitarian grounds were also not granted to the applicants.

The unfortunate effect, and reason for this application, was that the families in question had not been eligible for emergency evacuations carried out from Kabul Airport by NZDF alongside its coalition partners in August 2021 precisely because their visas had not been finalised in the preceding period. They therefore did not have the required paperwork to be considered for evacuation at that time.

Justice Cooke acknowledged that the case involved two exceptional circumstances coinciding – the Covid-19 pandemic and the additional humanitarian crisis in Afghanistan; the former requiring people to be prevented from entering New Zealand on public health grounds, and the latter requiring that people be welcomed into New Zealand on humanitarian grounds (at [137]). The judgment found in favour of the applicants that Immigration NZ’s handling of the residency and humanitarian visa applications had not been in accordance with New Zealand’s law. This included that the failure to make a final determination about their applications because of changes to Immigration Instructions due to Covid-19 border closures was unlawful. Immigration NZ was also found to have misinterpreted the scope of exceptions allowing entry for humanitarian reasons. The Court ordered that the applications be promptly considered and determined by Immigration NZ.

The Protection of Afghan Interpreters – What Legal Frameworks Are Most Relevant?

The issues surrounding protection and immigration/asylum status of Afghan nationals who worked with international military forces as interpreters are well-known and have been being grappled with by many countries – see, for example, here, here and here. Yet, as Frédéric Mégret commented in a recent Verfassungsblog debate:

[d]iscourse around obligations to exfiltrate Afghan interpreters struggles to articulate exactly what the basis for these might be. It has a tendency to fall between the cracks created by competing paradigms, straddling the domestic and international, as well as the private and public divides.

Of interest, therefore, is the discussion within the judgment of possibly relevant IHL issues.

Counsel for the Afghan applicants submitted that the questions regarding the interpretation and application of New Zealand’s Immigration Act and related policy instructions should be influenced by New Zealand’s international obligations to protect people in the position of the applicants. The argument was made that duties of parties to armed conflict under IHL to protect the civilian population from harm might be able to be considered to continue where there is a sufficient causal chain linking the responsibility of the state to the protection concern. Reference was made by way of analogy to the decision of the Human Rights Committee in AS v Italy regarding the right to life under the ICCPR and Italy’s failure to respond promptly to a vessel in distress notwithstanding that it was not in Italian waters (at [29]–[31]). The applicants’ case, as put at the hearing of the case, was that the connection arising from the actions of the NZDF in employing civilian personnel to support their operations, and so exposing those people and their families to the risk of reprisals, created a closer link. That link, in turn, required special measures of protection at the time and – if not taken or not effectual – a continuing remedial obligation upon the New Zealand government to take such steps within its power as may protect against the risk thereby created.

The New Zealand government’s position was, primarily, that no continuing obligation to protect civilians could apply to a party to an armed conflict after that state’s participation as a party had ceased, especially where those persons were not in New Zealand’s territorial jurisdiction (at [32]). The last NZDF soldiers left Afghanistan in the first part of 2021 although NZDF did return briefly to Kabul airport to conduct evacuations after the fall of Kabul.

Because the issue could be resolved in the applicants’ favour on other grounds, no final determination had to be made on the relevance (or not) of IHL duties towards the applicants. The judge accepted, though, the general relevance of IHL and acknowledged that certain IHL obligations continue after the cessation of active hostilities, citing scholars Marko Milanovic, Dieter Fleck and Emily Crawford.  Ultimately, the decision found that the circumstances of the families connected with the NZDF’s previous military operations would be ‘too remote for there to be any continuing international obligation on New Zealand to effectively protect those remaining in Afghanistan’ (at [33]). The judge stated that ‘New Zealand might be thought to have a form of moral responsibility for the citizens of Afghanistan who assisted them in the years while they were there, but the suggestion there is an international obligation to the wider family of those persons after hostilities had ceased stretches the argument on international humanitarian law obligations too far’ (at [33]). This was contrasted with the situation in AS v Italy which the judge considered demonstrated a closer connection between the actions of Italy and those whose lives were at risk (at [35]).

Protection Once a Party Leaves – Moral or Legal Responsibilities?

It is rare for IHL questions to arise in New Zealand court decisions, although as I discuss in a forthcoming chapter, immigration and asylum are precisely areas of New Zealand’s domestic law in which IHL and ICL prove particularly relevant. The submissions for the applicants based on IHL, although ultimately not successful, arguably bolstered other parts of the judgment related to the interpretation by Immigration NZ of domestic Immigration law and policy. This was due to the Court’s acknowledgement that the peril of the applicants was ‘faced at least in part because of the applicants’ families’ assistance to New Zealand forces in Afghanistan’ (at [107]). This gave rise to a specific link to New Zealand and a moral responsibility to them (at [101]) as ‘qualifying circumstances’ different to New Zealand’s relationship to any other person suffering or in danger of abuse in Afghanistan or elsewhere (at [103]). The Court’s separate discussion of the applicants’ claim under human rights law and IHL was, by contrast, framed in terms of the general risk to the civilian population (at [35]) and did not mention the applicants’ claim of particular risk occasioned by the NZDF actions.

To my mind, the short IHL discussion in this decision raises pertinent questions about the reasonable actions we might demand of a state party to protect civilians to whom it has a special connection or moral responsibility, as well as potentially pursuant to the ever-disputed Common Article 1 to the four Geneva Conventions requiring states to ‘respect and ensure respect’ for IHL. The issue as discussed in this judgment was not so much about determining the end of a NIAC but the possibility of ongoing duties after a party is no longer a party to that conflict, whether or not that conflict continues.

Despite the broad language of article 13 AP II: ‘The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations’, the Court must have been correct in finding that once a state is no longer a party to a non-international armed conflict, the resulting end of the applicability of IHL to its actions in the country and vis-à-vis its civilian population would shift to one of strong ongoing moral responsibility. Yet, I still have questions. In a similar vein, Paul Strauch and Beatrice Walton recently argued regarding jus ex bello that CA1 might require a departing state to consider forseeable and severely harmful effects of its withdrawl, i.e. that there are end-of-participation obligations precisely because of a state’s prior involvement in the armed conflict. See also their earlier OpinioJuris post regarding withdrawal and ISIS detainees in Syria, asking when do Common Article 1 (duty to ensure respect) obligations end?

Given complex partnering and support relations in contemporary conflicts, and not ignoring the diverse opinions about the legal content of the duty set out in Common Article 1, is there any possibility of ongoing shared duties between coalition partners when one partner leaves? More specifically on the facts in question, if we imagine that the connection to the foreign force’s operations arose in, say, 2016 and the affected persons applied for visas in 2018, then duties to protect under IHL would still be applicable at the times those visa applications were being handled given that the foreign forces were still present in Afghanistan and party to the ongoing armed conflict at the time. What might be made of the remedial obligation – that is, if IHL duties of protection are not met, what follows – that the applicants raised? In short, we typically think of the protection of civilians as actions taken on the battlefield, but in such special circumstances where there is an acknowledged special connection between the civilians in question and the state, could bureaucratic actions taken at home such as the proper handling of a visa application, also be considered a diligent action contributing to the respect for IHL and the protection of the civilian population?

What does an IHL analysis illuminate?

The overarching point of interest is the extent to which arguments within an IHL framework might be able to bolster (or not) arguments surrounding the protection of people at risk due to working or being otherwise connected with foreign forces. Understandably, these cases tend to be discussed primarily in immigration/asylum terms or as a matter of moral responsibility towards allies and people perceived as veterans. What additional light could an IHL analysis offer in terms of reflecting upon the web of international military deployments and their knock-on effects on protection needs? What problematic paths could a more critical evaluation of the application of an IHL analysis also open up?

The author is grateful for discussion with Ben Keith and Eve Massingham while preparing this post.