BACKGROUND

A. Historical context
13. The armed conflict in Afghanistan has its roots in the 1978 coup d’état that brought to
power the communist People’s Democratic Party of Afghanistan (“PDPA”). The PDPA’s brief
rule was characterised by massive repression, sparking local revolts and mutinies within the
army.8 These uprisings, together with internal fighting and coups within the government
between rival factions, prompted the Union of Soviet Socialist Republics (“USSR”/“Soviet
Union”), with whom the PDPA had forged close ties, to invade Afghanistan in December
1979 in order to prop-up its faltering and unpopular client state.9 The invasion sparked a
nationwide resistance movement among both tribal and urban groups – known collectively
as the mujahideen – while the ensuing counter-insurgency campaign drove millions of
Afghans into exile as refugees, mostly to the neighbouring states of the Islamic Republic of
Pakistan (“Pakistan”) and the Islamic Republic of Iran (“Iran”).10 Over time, the insurgent
groups received significant assistance, notably in the form of weaponry, from the US and
other states.11 The USSR withdrew its forces from Afghanistan pursuant to the 1988
Geneva Accords, although the US and the USSR continued to provide military and economic
aid to their respective clients, the Afghan Government increasingly relied for its defence on
regional militias, paying for their loyalty with Soviet-provided cash and weapons.12 Following
the collapse of the Soviet-backed Government of President Najibullah in 1992, a civil war
broke out in Afghanistan between rival mujahideen groups.
14. Between 1992 and 1996, Afghanistan’s capital, Kabul, was engulfed in a violent power
struggle among rival mujahideen groups. These groups engaged in indiscriminate attacks
and excessive use of force that left tens of thousands of civilians dead and destroyed large
portions of the city.14 The Taliban (meaning “students” in Pashto) emerged from this period
of lawlessness, first taking control of Kandahar, the main city in southern Afghanistan, in
1994.15 By September 1996 they had captured Kabul,16 and in 1998, Mazar-i-Sharif, one of
the main cities in northern Afghanistan.17
15. In response to the attacks of 11 September 2001 on Washington D.C. and New York
City, on 7 October 2001 the United States launched military Operation Enduring Freedom’
(“OEF”) in Afghanistan.
The purpose of the operation was to fight Al Qaeda and the Taliban Government that
harboured Al Qaeda and its leadership.18 As part of the initial phase of the operation, the
US organised and armed Afghan anti-Taliban groups operating under the coalition known as
the ‘Northern Alliance’. By the end of the year, the Taliban were ousted from power.
16. In order to establish permanent governance institutions, a number of Afghan leaders
started talks under the auspices of the UN. The 2-5 December 2001 Bonn Conference
resulted in the Agreement on Provisional Arrangements in Afghanistan Pending the Re-
Establishment of Permanent Government Institutions, otherwise known as the Bonn
Agreement.19 The Bonn Agreement envisaged the Afghan Interim Authority to govern
Afghanistan during a six-month period. Hamid Karzai was selected at the Bonn Conference
to serve as Chairman of the Interim Authority. 20 Another body established by the
Agreement, the Emergency Loya Jirga,21 to be convened within six months of the
establishment of the Interim Authority, was mandated to elect a Head of the State for the
Transitional Administration, pending the election of a fully representative government to be
elected within a further two years; and to approve proposals for the structure of the
Transitional Administration and its key personnel.22
17. The Bonn Agreement also requested the UN Security Council (“UNSC”) to establish a
UN mandated force to assist in the maintenance of security for Kabul and its surrounding
areas until the new Afghan security and armed forces were fully constituted and
functioning.23 On 20 December 2001, the UNSC adopted resolution 1386 establishing an
International Security Assistance Force (“ISAF”).24 In parallel to the ISAF mission, US
forces continued military operations pursuant to OEF against supporters of the Al Qaeda
network.
18. In tandem with the process of establishing Afghan governing institutions, the security
situation continued to deteriorate, primarily due to the increasing level of insurgency. This
was largely attributable to the Taliban movement which began to rebuild its influence starting
in 2002.25
19. The three largest anti-government armed groups operating in Afghanistan historically
have been the Taliban, the Haqqani Network, and Hezb-e- Islami Gulbuddin (“HIG”). Al
Qaeda also remains a focus of military operations by international forces in Afghanistan.26
Since 2015, groups calling themselves Daesh/Islamic State Khorasan Province
(“Daesh/ISKP”) have emerged and have been held responsible (or claimed responsibility)
for a number of attacks against civilians in Kabul as well in Nangarhar province.27
20. The number of international forces deployed to support the Afghan Government peaked
at over 100,000 in 2010-2011, the majority of which were US armed forces. Approximately
50 other countries contributed troops to ISAF, including states that are not members of the
North Atlantic Treaty Organization (“NATO”). The US-led OEF continued in Afghanistan
alongside the NATO-led ISAF mission until the end of December 2014, when both combat
missions officially concluded, and were replaced by Operation Freedom’s Sentinel and
Operation Resolute Support, respectively.28 The new missions are focused primarily on
training, advising and assisting the ANSF, although Operation Freedom’s Sentinel also
conducts counter-terrorism operations against the remnants of Al Qaeda. Currently there are
approximately 13,500 international forces deployed as part of NATO’s Resolute Support
Mission29 and approximately 8,400 U.S. troops (6,900 of which operate as part of the NATO
Mission),30 supporting a 352,000-strong ANSF.
21. Security in Afghanistan has also deteriorated due to the challenge of subordinating the
influence of regional leaders and their militias to central government control. Such militias
are typically controlled at the local level by individuals responsible for small units covering
one or several villages or strategic points. Local commanders are generally loyal to a mid-
level commander, who may control a substantial portion of a province and in turn is usually
affiliated with a regional entity, party or organisation led by a recognised personality, who
have sometimes been labelled as ‘warlords’, ‘powerbrokers’ or ‘strongmen.32 In 2010,
coalition forces sought to regularise some of these groups by providing them with official
governmental status under the banner of the ‘Afghan Local Police’ (“ALP”).