Operation Nation-Building: How International Humanitarian Law Left Afghanistan Open on the Operating Table

Authors

Nina Griscelli, University of Miami School of Law

Abstract

Military campaigns often carry with them official names and underpinning objectives. In Afghanistan, these campaigns were known as Operation Enduring Freedom in 2001, and later, in 2015, as Operation Freedom Sentinel. In total, the United States and its allies remained in Afghan territory for 7,268 days, twenty years, in support of the “Global War on Terror.” Within that time, the democratic construction of a “free” Afghan society—also known as nation-building, regime change, or transformative military occupation—deeply transformed the status quo of the population. To the West, “Operation Nation-Building” became the most strategic and “hopeful alternative to the vision of the extremists.” Fast forward in 2021, however, this enterprise seemed to have failed entirely, for these very “extremists”—the Taliban—retook power immediately upon military withdrawal. Today, Afghanistan is facing an unprecedented humanitarian crisis with a very real risk of systemic collapse and hu- man catastrophe—thereby reversing what many considered twenty years of societal gains, especially in regard to women’s rights.

As a legal backdrop to this forever war, International Humanitarian Law (“IHL”) and Human Rights Law complementarily attempted to protect civilians and ensure human dignity. This Note will solely focus on IHL. Indeed, by assuming that endings of “occupations” remain conducts that occur during war, the scope of this Note falls well within jus in bello considerations. Accordingly, this Note does not assess the legitimacy of the war itself (jus ad bellum), nor does it suggest precise guidelines on how to terminate war (jus post bellum)—although it might shed light on the manner in which these guidelines should be considered.

Without debating over the legitimacy and legality of nation- building within the framework of IHL, this Note stands for the proposition that foreseeably disastrous endings of nation-building enterprises, once identified, should trigger an additional legal duty under IHL—one of reasonable care— toward the population that is about to be left behind. To back up this logic, this Note will take a hard look at hard law— mainly the Fourth Geneva Convention—and discuss legal vacuums along the way.

Recommended Citation

Nina Griscelli, Operation Nation-Building: How International Humanitarian Law Left Afghanistan Open on the Operating Table, 77 U. Mia. L. Rev. 830 (2023)
Available at: https://repository.law.miami.edu/umlr/vol77/iss3/8