THE SOVIET-AFGHAN WAR: IN HUMANITARIAN LAW

PERSPECTIVE

Author:

MUHAMMAD FIRIZKY HAYQAL

NPM: 6051801219

SUBMITTED IN FULFILLMENT OF THE REQUIREMENT FOR THE INTERNATIONAL

HUMANITARIAN LAW COURSE FINAL EXAMINATION SCORE

PARAHYANGAN CATHOLIC UNIVERSITY

FACULTY OF LAW
BANDUNG
2022
 CHAPTER I

INTRODUCTION

1.1 Background

Afghanistan, a landlocked multiethnic country located in the heart of

south-central Asia. Lying along important trade routes connecting southern
and eastern Asia to Europe and the Middle East, Afghanistan has long
been a prize sought by empire builders, and for millennia great armies
have attempted to subdue it, leaving traces of their efforts in great
monuments now fallen to ruin. The country’s forbidding landscape of
deserts and mountains has laid many imperial ambitions to rest, as has
the tireless resistance of its fiercely independent peoples, so independent
that the country has failed to coalesce into a nation but has instead long
endured as a patchwork of contending ethnic factions and ever-shifting
alliances.
The modern boundaries of Afghanistan were established in the late
19th century in the context of a rivalry between imperial Britain and tsarist
Russia that Rudyard Kipling termed the “Great Game.”1 Modern
Afghanistan became a pawn in struggles over political ideology and
commercial influence. In the last quarter of the 20th century, Afghanistan
suffered the ruinous effects of civil war greatly exacerbated by a military
invasion and occupation by the Soviet Union (1979–89). In subsequent
armed struggles, a surviving Afghan communist regime held out against
Islamic insurgents (1989–92), and, following a brief rule
by mujahideen groups, an austere movement of religious students
the Taliban, rose up against the country’s governing parties and warlords
and established a theocratic regime (1996–2001) that soon fell under the
influence of a group of well-funded Islamists led by an exiled Saudi
Arabian, Osama bin Laden. The Taliban regime collapsed in December
2001 in the wake of a sustained U.S.-dominated military campaign aimed
at the Taliban and fighters of bin Laden’s al-Qaeda organization. Soon
thereafter, anti-Taliban forces agreed to a period of transitional leadership
and an administration that would lead to a new constitution and the
establishment of a democratically elected government.
The capital of Afghanistan is its largest city, Kabul. A serene city of
mosques and gardens during the storied reign of the
emperor Bābur (1526–30), founder of the Mughal dynasty, and for
centuries an important entrepôt on the Silk Road, Kabul lay in ruins
following the long and violent Afghan War. So, too, fared much of the

1
The Great Game and Afghanistan, https://www.loc.gov/ghe/cascade/index.html?
appid=a0930b1f4e424987ba68c28880f088ea , Accessed on 6 April 2022

2
 country, its economy in shambles and its people scattered and
despondent. By the early 21st century an entire generation of Afghans had
come to adulthood knowing nothing but war. 2

One of the major events that shaped the country of Afghanistan as we

know today is The Soviet invasion of Afghanistan, is the invasion of
Afghanistan in late December 1979 by troops from the Soviet Union. The
Soviet Union intervened in support of the Afghan communist government
in its conflict with anti-communist Muslim guerrillas during the Afghan War
(1978–92) and remained in Afghanistan until mid-February 1989.
In April 1978 Afghanistan’s centrist government, headed by Pres.
Mohammad Daud Khan, was overthrown by left-wing military officers led
by Nur Mohammad Taraki. Power was thereafter shared by two Marxist-
Leninist political groups, the People’s (Khalq) Party and the Banner
(Parcham) Party—which had earlier emerged from a single organization,
the People’s Democratic Party of Afghanistan, and had reunited in an
uneasy coalition shortly before the coup. The new government, which had
little popular support, forged close ties with the Soviet Union, launched
ruthless purges of all domestic opposition, and began extensive land and
social reforms that were bitterly resented by the devoutly Muslim and
largely anti-communist population. Insurgencies arose against the
government among both tribal and urban groups, and all of these known
collectively as the mujahideen (Arabic mujāhidūn, “those who engage in
jihad”), were Islamic in orientation.
These uprisings, along with internal fighting and coups within the
government between the People’s and Banner factions, prompted the
Soviets to invade the country on the basis of “invitation” from the Afghan
people on the night of December 24, 1979, sending in some 30,000 troops
and toppling the short-lived presidency of People’s leader Hafizullah Amin.
The aim of the Soviet operation was to prop up their new but faltering
client state, now headed by Banner leader Babrak Karmal, but Karmal was
unable to attain significant popular support. Backed by the United States,
the mujahideen rebellion grew, spreading to all parts of the country. The
Soviets initially left the suppression of the rebellion to the Afghan army, but
the latter was beset by mass desertions and remained largely ineffective
throughout the war.
The war in Afghanistan became a quagmire for what by the late 1980s
was a disintegrating Soviet Union. (The Soviets suffered some 15,000
dead and many more injured.) Despite having failed to implement a
sympathetic regime in Afghanistan, in 1988 the Soviet Union signed an
accord with the United States, Pakistan, and Afghanistan and agreed to

2
https://www.britannica.com/place/Afghanistan , Accessed on 6 April 2022

3
 withdraw its troops. The Soviet withdrawal was completed on February 15,
1989, and Afghanistan returned to nonaligned status 3.

The Soviet Invasion of Afghanistan in 1979 and the subsequent brutal

military campaign resulted in one of the biggest humanitarian crisis in
modern history, with over five million refugees fleeing to Pakistan and Iran
and another two million displaced internally. 4 The massive exodus of
almost a quarter of the Afghan population, with a majority were women
and children, was a direct consequence of several factors. This included
fear of the Soviet occupying army and the pro-Soviet regime and
widespread destruction of home and livelihoods. Today Afghanistan lies
devastated as one of the poorest nations on earth. Average life
expectancy is 46 years, and mortality among children, who represent
almost 42% of its 26 million population, is extremely high. 5
Most of the civilian and childhood casualties of the prolonged war in
Afghanistan were the direct result of ballistic or landmine injuries.
Compared with Bosnia, Cambodia, and Mozambique, Afghanistan had the
highest population-based rates of landmine injuries and the highest
mortality. In a gruesome demonstration of specific targeting of children by
the Soviets, many of the mines deployed were shaped as colourful toys or
“butterflies.” Despite attempts at demining, there were still close to 10-15
million mines in Afghanistan in 1993.6
Human Rights Watch concluded that the Soviet Red Army and its
communist-allied Afghan Army perpetrated war crimes and crimes against
humanity in Afghanistan, intentionally targeting civilians and civilian areas
for attack, and killing and torturing prisoners. Several historians and
scholars went further, stating the Afghans were victims of genocide by the
Soviet Union.
Helen Fein notes that charges of the U.S. committing genocide during
the Vietnam War were repeated by several prominent intellectuals, yet
comparatively little attention was paid to the allegations of Soviet genocide
against the Afghan people. However, Fein argues that the claims against
the Soviets have considerably stronger evidentiary support. Fein states
that 9% of the Afghan population perished under Soviet occupation
(compared to 3.6% of the 1960 population of Vietnam during the U.S. war
and approximately 10% of non-Jewish Poles during the Nazi occupation of
Poland) and almost half were displaced, with one-third of Afghans fleeing
3
https://www.britannica.com/event/Soviet-invasion-of-Afghanistan, Accessed on 6 April 2022
4
Miller LC, Timouri M, Wijnker J, Schaller JG. Afghan refugee children and mothers. Arch Pediatr Adolesc
Med.  1994;148:704–708., https://jamanetwork.com/journals/jamapediatrics/article-abstract/517203 ,
Accessed on 7 April 2022
5

6
Zulfiqar Ahmed Bhutta, Children of war: the real casualties of the Afghan Conflict,
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1122273/#B1 , Accessed on 7 April 2022

4
 the country. (By contrast, the sustained refugee flows out of Vietnam
occurred after the 1975 defeat of South Vietnam, although millions of
Vietnamese were internally displaced by the war.) Furthermore,
statements by Soviet soldiers and DRA officials (e.g., "We don't need the
people, we need the land!"; "if only 1 million people were left in the
country, they would be more than enough to start a new society") and the
actual effect of Soviet military actions suggest that depopulation of rural,
predominantly Pashtun areas was carried out deliberately in order to
deprive the mujahideen of support: 97% of all refugees were from rural
areas; Pashtuns decreased from 39% to 22% of the population. The U.S.
likely committed war crimes in Vietnam through inconsistent application of
its rules of engagement and disproportionate bombardment, but it at least
attempted to hold individual soldiers accountable for murder, especially in
the case of the only confirmed large-scale massacre committed by U.S.
troops (the Mỹ Lai massacre). By contrast, Fein cites two dozen
"corroborated" massacres perpetrated by the Soviets in Afghanistan,
which went unpunished, adding that in some instances "Soviet defectors
have said that there were sanctions against not killing civilians." This policy
went beyond collective punishment of villages thought to house
mujahideen insurgents, which itself be a war crime. 7
Irrigation systems, crucial to agriculture in Afghanistan's arid climate,
were destroyed by aerial bombing and strafing by Soviet or government
forces. In the worst year of the war, 1985, well over half of all the farmers
who remained in Afghanistan had their fields bombed, and over one
quarter had their irrigation systems destroyed and their livestock shot by
Soviet or government troops, according to a survey conducted by Swedish
relief experts. Everything was the target in the country, from cities,
villages, up to schools, hospitals, roads, bridges, factories and orchards.
Soviet tactics included targeting areas which showed support for the
Mujahideen, and forcing the populace to flee the rural territories the
communists were unable to control. Half of Afghanistan's 24,000 villages
were destroyed by the end of the war.8
International Community felt the greater need of observance and
compliance with International Humanitarian Laws (hereinafter referred to
as “IHL”) in a great crisis that Afghanistan was facing until the recent
years. Concerning the constant abuse of Human Rights that is happening
in Afghanistan.
Human Rights are natural rights and inseparable from every human
being. Human Rights as natural rights of all human being are widely
accepted as customary principle of International Law. 9 When it its
customary principle of International Law, nation states cannot deviate from
it. For instance, laws of war were a long matter of customary law before
they were codified in the Geneva Conventions and other treaties.

7
https://en.wikipedia.org/wiki/Soviet%E2%80%93Afghan_War#cite_note-256 , Accessed on 7 April 2022
8
Op cit.
9
http://www.crimesofwar.org/thebook/customary-law.html, Accessed on 6 April 2022

5
 The role of law during the wars and armed conflicts is emphasized by
Hugo Grotius in a writing in the 17 th century. After observing the wars
between the different sects of Christianity, he wrote a book “De jure belli
ae pacis libri tres” (On the Laws of War and Peace) which was first
published in 1625. The book is focusing on the humanitarian treatment of
civilians at that time where he mentioned,

“I Observed that men rush to arms for slight causes, or no

cause at all, and that when arms have once been taken up there is no
longer any respect for law, divine or human: it is as if, in accordance with a
general decree, frenzy had openly been let loose for the committing of all
crimes.10”

The law of wars and armed conflicts is also can be traced back from the
medieval times. St. Augustine in the book City of God writes,

“They who have waged war in obedience to the divine command, or in

conformity with His laws, have represented in their persons the public
justice or the wisdom of government, and in this capacity have put to
death wicked men; such persons have by no means violated the
commandment, "Thou shalt not kill.”
It wouldn’t be until 900 years later that Thomas Aquinas, would explicitly
lay out the criteria that constitute a just war. According to him:

1) wars can only be waged by a legitimate authority

2) wars should only be conducted for a good purpose, not for gain or as a
show of power
3) even during the fighting, no matter how bad it gets, achieving peace
should always be the central goal.11
Therefore, it seems that violation of humanitarian laws was prevalent in
the past as much as today and the urgency to have a set of regulations
during armed conflicts was felt a long time ago.
International Law, is perceived as a soft law in contrast to hard law
enforced by definite sovereigns. But, international law are not always
administered and enforced in the same way as municipal law. Most of the
international law cast an obligation on the state parties, organization and
individuals to perform certain duties. And not always, non-performance or
non-compliance to the international law will be sanctioned by any court.
Although there are certain ways by which sanction can be imposed like
bringing the matter before the International Court of Justice. 12 In this
paper, an attempt is made to highlight the major legal events happened

10
The Law of War and Peace, trans. Francis Kelsey (Carnegie edition, 1925), Prol. Sect. 28: Cited from
https://en.wikipedia.org/wiki/Hugo_Grotius#De_Jure_Belli_ac_Pacis, Accessed on 6 April 2022
11
Autonomous weapons are changing 1500 years of Catholic thinking on war
,https://timeline.com/autonomous-weapons-are-changing-1500-years-of-catholic-thinking-on-war-
f546f8b2308d : Accessed on 6 April 2022

6
 during the Soviet Invasion of Afghanistan, and to analyze their conformity
and which law is applicable in the perspective of International
Humanitarian Law.

1.2 PROBLEM FORMULATION

From what has been stated above, the questions of this paper is as
follows:

1. Does the Soviet-Afghan War can be classified as an international

armed conflict?

2. Which laws is applicable and can be sanctioned to the parties in the

Soviet-Afghan War in the International Human Law perspective?

1.3 THE OBJECTIVES OF THE RESEARCH

The research objectives are as follows:

1. To create legal certainty to the actions committed during the Soviet-

Afghan War.

1.4 PROPOSED RESEARCH METHODOLOGY

The research method that will be used to examine the legal issues
above will use the normative juridical law method. According to Soerjono
Soekanto, this legal research is carried out by examining library materials
or mere secondary data, which can be called normative research or library
law research.13
The collection of data sources will be carried out by means of a literature
study, namely the search for library data. From the library data search will
produce two legal materials, namely:

1. Primary Legal Source, by way of explanation is the main source of

the law, the main source of law that will be studied in this research
is the The Hague Conventions and the Geneva Conventions

2. Secondary Legal Source, by way of explanation is legal writings

that have been processed in such a way by researchers or other
legal experts that are relevant to the primary legal sources which
include books and related legal journals.

12
International Humanitarian Law in Nepal – A Case Study,
https://www.researchgate.net/publication/228191476_International_Humanitarian_Law_in_Nepal_-
_A_Case_Study , Accessed on 6 April 2022
13
Soerjono Soekanto & Sri Murjadi, Penelitian Hukum Normatif Suatu Tinjauan Singkat, (CV. Rajawali Jakarta)
1985, Page. 13

7
 CHAPTER II

DISCUSSION

2.1 Classification of Armed Conflicts

The Geneva Conventions of August 12, 1949, provide in great detail for
the protection of the diverse victims of war. Each Convention deals with a
different category of victim. The third and fourth Conventions cover the
treatment of prisoners of war and the protection of civilians in time of war.
The four Conventions have several General Provisions in common, in
particular, common provisions setting out the contingencies for their
application. Common Article 2 establishes the criteria for the application of
the Conventions to armed conflict. It states:

“In addition to the provisions which shall be implemented in peacetime,

the present Convention shall apply to all cases of declared war or of any
other armed conflict which may arise between two or more of the High
Contracting Parties, even if the state of war is not recognized by one of
them.

The Convention shall also apply to all cases of partial or total

occupation of the territory of a High Contracting Party, even if the said
occupation meets with no armed resistance.”

According to this provision, International Armed Conflicts are those

which oppose "High Contracting Parties", meaning States. An International
Armed Conflicts occurs when one or more States have recourse to armed
force against another State, regardless of the reasons or the intensity of
this confrontation. Relevant rules of IHL may be applicable even in the
absence of open hostilities. Moreover, no formal declaration of war or
recognition of the situation is required. The existence of an International
Armed Conflicts, and as a consequence, the possibility to apply
International Humanitarian Law to this situation, depends on what actually
happens on the ground. It is based on factual conditions. For example,
there may be an International Armed Conflicts, even though one of the
belligerents does not recognize the government of the adverse party. The
Commentary of the Geneva Conventions of 1949 confirms that "any
difference arising between two States and leading to the intervention of
armed forces is an armed conflict within the meaning of Article 2, even if
one of the Parties denies the existence of a state of war. It makes no
difference how long the conflict lasts, or how much slaughter takes place. 14

14
ICRC Opinion Paper, How is the Term "Armed Conflict" Defined in International Humanitarian Law?,
International Committee of the Red Cross (ICRC) Opinion Paper, March 2008

8
 Common Article 3 applies to "armed conflicts not of an international
character occurring in the territory of one of the High Contracting Parties".
These include armed conflicts in which one or more non-governmental
armed groups are involved. Depending on the situation, hostilities may
occur between governmental armed forces and non-governmental armed
groups or between such groups only. As the four Geneva Conventions
have universally been ratified now, the requirement that the armed conflict
must occur "in the territory of one of the High Contracting Parties" has lost
its importance in practice. Indeed, any armed conflict between
governmental armed forces and armed groups or between such groups
cannot but take place on the territory of one of the Parties to the
Convention.

In order to distinguish an armed conflict, in the meaning of common

Article 3, from less serious forms of violence, such as internal disturbances
and tensions, riots or acts of banditry, the situation must reach a certain
threshold of confrontation. It has been generally accepted that the lower
threshold found in Article 1(2) of APII, which excludes internal
disturbances and tensions from the definition of Non-International Armed
Conflicts (herein after referred to as NIAC), also applies to common Article
3. Two criteria are usually used in this regard: 15
 First, the hostilities must reach a minimum level of intensity. This
may be the case, for example, when the hostilities are of a
collective character or when the government is obliged to use
military force against the insurgents, instead of mere police forces.
 Second, non-governmental groups involved in the conflict must be
considered as "parties to the conflict", meaning that they possess
organized armed forces. This means for example that these forces
have to be under a certain command structure and have the
capacity to sustain military operations.

A more restrictive definition of NIAC was adopted for the specific

purpose of Additional Protocol II. This instrument applies to armed
conflicts "which take place in the territory of a High Contracting Party
between its armed forces and dissident armed forces or other organized
armed groups which, under responsible command, exercise such control
over a part of its territory as to enable them to carry out sustained and
concerted military operations and to implement this Protocol". 16

This definition is narrower than the notion of NIAC under common

Article 3 in two aspects. Firstly, it introduces a requirement of territorial
control, by providing that non-governmental parties must exercise such
territorial control "as to enable them to carry out sustained and concerted
military operations and to implement this Protocol". Secondly, Additional
Protocol II expressly applies only to armed conflicts between State armed
forces and dissident armed forces or other organised armed groups.
Contrary to common Article 3, the Protocol does not apply to armed
15
Op Cit.
16
Op Cit.

9
 conflicts occurring only between non-State armed groups. In this context, it
must be reminded that Additional Protocol II "develops and supplements"
common Article 3 "without modifying its existing conditions of
application".14 This means that this restrictive definition is relevant for the
application of Protocol II only, but does not extend to the law of NIAC in
general. The Statute of the International Criminal Court, in its article 8,
para. 2 (f), confirms the existence of a definition of a non-international
armed conflict not fulfilling the criteria of Protocol II.

Although one of the Powers in conflict may not be a party to the

present Convention, the Powers who are parties thereto shall remain
bound by it in their mutual relations. They shall furthermore be bound by
the Convention in relation to the said Power, if the latter accepts and
applies the provisions thereof.

In spite of the obviously substantial role of Soviet forces in the Afghan

war as stated above, the question whether or not the conflict can be called
international for purposes of applying international humanitarian law has
not been resolved decisively.

2.2 Applicability of The International Humanitarian Law to The Soviet-

Afghan War.

From the writer’s perspective, the armed conflict in Afghanistan is

subject to the plenary application of the Geneva and Hague laws, by virtue
of common Article 2, paragraph 1, or, alternatively, common Article 2,
paragraph 2. There is no way of excluding the operation of common Article
2, paragraph 1, together with the body of the Hague law, in the Afghan
situation. No matter how the facts are viewed, forces of the Soviet Union
entered Afghanistan and engaged in combat with loyal Afghan government
forces, which brought about a change of government. The claim that the
existing Amin Government invited Soviet troops to bring about its own
downfall lacks any credibility. The Soviet Union quickly expanded its role in
fighting the Afghan resistance forces until that role was not only
predominant, but, in terms of administration and command, nearly
complete. Thus, the situation in Afghanistan must be characterized as an
armed conflict that became an occupation.

Where the forces of one state enter the territory of another, engage in
hostilities, however limited, with the forces of that state's government and
install a new, compliant government, an international conflict is constituted.
When the outside forces transform their role into one of occupation,

10
paragraph 1 of common Article 2 continues to operate according to its
terms.

Common Article 2, paragraph 2 of the Conventions brings into

operation the plenary law of war in cases of partial or. total occupation of a
contracting state's territory even if there is no resistance. If state A's
military forces occupy part of the territory of state B without resistance
from the government of state B, the situation would not fulfill the
contingency of common Article 2, paragraph 1, because it is not a
"declared war," or any other armed conflict, between two or more of the
high contracting parties. As a result, the situation would not call into
operation the plenary laws of war under Article 2, paragraph 1. But this
situation would meet the requirement of common Article 2, paragraph 2,
whose operation would achieve the same effect as the operation of
paragraph 1.

CHAPTER III

11
 CONCLUSION

3.1 Conclusion

Based on the explanation above, the writer thinks and concludes that
key facts of the actions conducted during the Soviet intervention in
Afghanistan do, realistically, make the conflict an international one
according to the provisions of common Article 2 of the Conventions.
Therefore, the Conventions in their entirety, together with the ensemble of
law of armed conflict, are applicable for judging the conduct of the parties
to the conflict.

The Soviet forces invaded Afghanistan and dismantle the Amin

Administration Government from power. They were met with fierce
resistance by the loyal Afghan Government troops. Second, the Soviet
participation in the conflict against the resistance absorbed the Afghan
army's participation. All accounts of the increase in Soviet troop strength
following the intervention in December 1979 and the parallel disintegration
of the Afghan army, as well as the control of the army and civilian
ministries by Soviet advisers, lead to one conclusion: the Soviet presence
in Afghanistan, whether or not there was an invitation by the existing
Afghan Government, has been an occupation of the territory of another
state within the meaning of common Article 2. Therefore, the Conventions
are applicable.

12
BIBLIOGRAPHY

1. The Great Game and Afghanistan,

https://www.loc.gov/ghe/cascade/index.html?
appid=a0930b1f4e424987ba68c28880f088ea , Accessed on 6 April
2022
2. https://www.britannica.com/place/Afghanistan
3. https://www.britannica.com/event/Soviet-invasion-of-Afghanistan
4. Miller LC, Timouri M, Wijnker J, Schaller JG. Afghan refugee
children and mothers. Arch Pediatr Adolesc Med. 1994;148:704–
708., https://jamanetwork.com/journals/jamapediatrics/article-
abstract/517203
5. Zulfiqar Ahmed Bhutta, Children of war: the real casualties of the
Afghan Conflict,
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1122273/#B1
6. https://en.wikipedia.org/wiki/Soviet
%E2%80%93Afghan_War#cite_note-256
7. http://www.crimesofwar.org/thebook/customary-law.html
8. The Law of War and Peace, trans. Francis Kelsey (Carnegie
edition, 1925), Prol. Sect. 28: Cited from
https://en.wikipedia.org/wiki/Hugo_Grotius#De_Jure_Belli_ac_Pacis
9. Autonomous weapons are changing 1500 years of Catholic thinking
on war ,https://timeline.com/autonomous-weapons-are-changing-
1500-years-of-catholic-thinking-on-war-f546f8b2308d
10. International Humanitarian Law in Nepal – A Case Study,
https://www.researchgate.net/publication/228191476_International_
Humanitarian_Law_in_Nepal_-_A_Case_Study
11. Soerjono Soekanto & Sri Murjadi, Penelitian Hukum Normatif Suatu
Tinjauan Singkat, (CV. Rajawali Jakarta), 1985
12. ICRC Opinion Paper, How is the Term "Armed Conflict" Defined in
International Humanitarian Law?, International Committee of the
Red Cross (ICRC) Opinion Paper, March 2008

13