SEMESTER VIII

INTERNATIONAL HUMANITARIAN LAW AND REFUGEE LAW

ARTICLE ON:

“LEGAL OBLIGATION OF STATES WITHDRAWING FROM ARMED

CONFLICTS: A CASE STUDY OF AFGHANISTAN”

SUBMITTED TO:

Prof. AFRIN KHAN

PROFESSOR, NMIMS SCHOOL OF LAW

SUBMITTED BY:

ALVIN JAYMON – C050

FOURTH YEAR BBA LLB

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 TABLE OF CONTENTS

I. ABSTRACT.........................................................................................................................2
II. INTRODUCTION..............................................................................................................3
III. RESEARCH OBJECTIVES..............................................................................................4
IV. AFGHAN NATIONALS V. THE MINISTER FOR IMMIGRATION........................4
V. LEGAL FRAMEWORK PROTECTING AFGHAN TRANSLATORS......................5
VI. LEGAL RESPONSIBILITIES WHEN A PARTY LEAVES........................................6
VII. CONCLUSION...................................................................................................................8

I. ABSTRACT
The paper examines the legal responsibility of the states when they chose to withdraw or in the
process of withdrawing from an armed conflict. The article argues against the popular notion that
the International Humanitarian Law ceases when the armed hostilities stop and argues that a
number of such obligations actually continues even after the state receded from being a party to
an international armed conflict (IAC), the paper analyzes three kinds of obligations

(i) Obligation after participation has been rescinded

(ii) Obligations in transfer of prisoners and detention
(iii) Obligation that exists by virtue of Article 1 common to the four Geneva Convention

The end-of-participation regulations mentioned in this article are of a restricted scope, addressing
just a portion of the issues that arise while departing armed conflicts, much alone those that arise
when establishing post-bellum peace and respect for human rights. Recent events have
demonstrated the need of ending armed conflicts (as well as the catastrophic repercussions that
might occur as a result of doing so) as well as the need for accountability mechanisms.

Keywords: - International armed conflict, Prisoners, Detention, Accountability, Obligation

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II. INTRODUCTION
The Western Intervention in the developing 3rd world countries and the exorbitant growth of the
military-industrial complex in the west has given rise to the problem of Perpetual War. While the
majority of existing literature focuses more on the need of avoiding war or military conflict, now
more attention is being given to the states that are receding from an international military
conflict. United States of America (USA) alone has had problem in ending the participation of
the coalition forces in Afghanistan which finally extricated in late 2021. This paper concentrates
on the international legal obligations that States have when they withdraw from military war
situations. When and how states end military conflicts are just as puzzling and essential to the
persons and communities affected by such decisions as when and how states go to war. While
more emphasis has been given on the obligation of the states specifically when armed conflicts
legally come to an end, little attention is given to the obligation of the state when they withdraw
from ongoing international military conflicts.

When states prematurely exit or withdraw from an armed conflict it can lead to significant loss of
life and unnecessary destruction. Therefore, it becomes imperative to analyze the relevant laws
and rules that oversees such withdrawal. Looking at the withdrawal of a state from active
hostilities from the lenses of International Humanitarian Law (IHL), some scholars has referred
to this scenario as jus ex bello which basically provides for ascertaining when is the right time
for a state to justly withdraw from participating in a armed conflict however, the question of how
a state should withdraw from an international armed conflict has not been discussed in great
lengths. The paper analyzes a November 2021 judgement of the High court of New Zealand has
raised the question of legal responsibility to protect Afghan nationals working for the New
Zealand Defense Force which provides with the opportunity to examine the obligations of a state
when it withdraws from an ongoing military conflict.

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III. RESEARCH OBJECTIVES
1. To understand what obligation, moral or legal, a party state to an IAC have when it
withdraws from it.
2. To analyze Obligations in transfer of prisoners and detention and Obligation that exists by
virtue of Article 1 common to the four Geneva Convention to a withdrawing state.

IV. AFGHAN NATIONALS V. THE MINISTER FOR IMMIGRATION 1

The decision dealt with New Zealand's handling of visa applications for families of Afghan
citizens who had served as translators for the NZDF in Afghanistan or otherwise aided NZDF
forces. Several former NZDF translators have since settled in New Zealand and become citizens.
The appeal was regarding extended family members who were at risk in Afghanistan due to the
current situation, particularly due to their ties to the NZDF. Long before the Taliban overthrew
the Afghan government and control of the took country, the relatives sought for visas to visit
New Zealand. Owing to unexpected Covid 19-related border limitations in New Zealand, these
applications were handled but not finalized. Critical purpose visitor visas, which permitted
waivers from Covid-related border limitations on exceptional humanitarian grounds, were not
issued to applicants after the Taliban overthrew the Afghan government in August 2021. The
Covid-19 global epidemic and the supplemental humanitarian crisis in Afghanistan, Justice
Cooke acknowledged2, coincided with two exceptional circumstances, the erstwhile requiring
people to be precluded from entering New Zealand on public health grounds, and the latter
urging people to be accepted into New Zealand on humanitarian grounds. Immigration New
Zealand's treatment of the residence and humanitarian visa applications had not been in
conformity with New Zealand law, according to the verdict. This comprised the claim that the
inability to render a final decision on their petitions owing to alterations in Immigration
Instructions as a result of the Covid-19 border restrictions was illegal. Immigration New Zealand
was also deemed to have misunderstood the extent of exemptions permitting humanitarian
immigration. The court ordered Immigration New Zealand to review and decide the petitions as
soon as possible. INZ has indicated that it will continue considering offshore residency
applications submitted before to the March 2020 border shutdown, following the Court's

1
[2021] NZHC 3154
2
Ibid.

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decision. INZ had delayed its judgement on such petitions since the installation of New Zealand's
COVID-19 border restrictions. Approximately 2,300 on-hand residence applications would be
affected, as per an INZ press statement.

V. LEGAL FRAMEWORK PROTECTING AFGHAN TRANSLATORS

The security and immigration/asylum status of Afghan citizens who operated as translators with
foreign armed forces are well-known and have been debated by numerous governments.
“Discourse 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
divides3.” The Afghan applicants' lawyers argued that the construction and execution of New
Zealand's Immigration Act and relevant administrative directives should be impacted by New
Zealand's international commitments to safeguard others in similar situations. The claim was
made that where there is a strong causal chain tying the state's responsibilities to the security
concern, the obligations of participants to armed conflict under IHL to protect the innocent
civilians from damage can be regarded to persist. The ruling of the Human Rights Committee in
AS v Italy on the right to life under the ICCPR and Italy's inability to react immediately to a ship
in danger despite the fact that it was not in Italian waters was used as an example. The applicants'
contention, as presented at the court, was that a deeper relationship was formed as a result of the
NZDF's conduct in engaging civilian employees to assist their campaigns, exposing those
persons and their families to the danger of retaliations. That relationship, in turn, necessitated
specific safeguards at the time, as well as an ongoing corrective responsibility on the part of the
New Zealand government to take whatever actions are within its ability to mitigate the danger
posed. The New Zealand government's stance was that no continuing commitment to safeguard
the people could extend to a party to a military conflict after that country's role as a participant
had ended, particularly if those individuals were not within New Zealand's territorial
jurisdiction4. However, citing experts Marko Milanovic, Dieter Fleck, and Emily Crawford, the
judge accepted the broad applicability of IHL and noted that specific IHL requirements persist
even when active hostilities have ended. Finally, the Court determined that the conditions of the

3
Fredric Merget, Intermediate Solidarities: The Case of the Afghan Interpreters, VerfBlog, (Mar. 20, 2022, 22:36),
https://verfassungsblog.de/os1-intermediate-solidarities/.
4
Supra Note 1, at 32.

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families affected by the NZDF's prior combat actions were "too remote" for New Zealand to
have a persisting international commitment to adequately safeguard those still in Afghanistan 5.
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
far6.”

VI. LEGAL RESPONSIBILITIES WHEN A PARTY LEAVES

Although the applicants' IHL representations were eventually unsuccessful, they undoubtedly
supported other portions of the ruling relating to Immigration NZ's interpretation of domestic
immigration law and policy. So since the Court acknowledged that the applicants' safety was
jeopardised "at least in part" as a result of their families' support to New Zealand military in
Afghanistan7. As 'qualifying circumstances,' this created a unique bond with New Zealand and a
moral obligation to them that was distinct from New Zealand's connection with any other
individual suffering or in danger of abuse in Afghanistan or elsewhere 8. The Court's separate
assessment of the applicants' case under human rights law and international humanitarian law, on
the other hand, was articulated in terms of the generalized risk to the populace and did not
address the applicants' allegation of heightened danger caused by the NZDF operations. The
debate of IHL in this judgement continues to raise important inquiries about what appropriate
measures we might expect of a state party to safeguard citizens with whom it has a special
relation or moral responsibility, but also arguably pursuant to the contentious Common Article 1
of the four Geneva Conventions, which requires states to "respect and ensure respect" for IHL.
The concern in this case was not so much about deciding when an NIAC ends as it was about the
prospect of continuing obligations when a government is no more a party to the conflict, whether
or not the conflict continues. Despite the broad language of article 13 AP II, which states that
"the civilian population and individual civilians shall enjoy general protection against the
dangers arising from military operations," the Judge should be proper in concluding that once a
state ceases to be a participant to a non-international armed conflict, the application of IHL to its
activities in the region and vis-à-vis its citizenry shifts to one of strong ongoing moral
responsibility. Recently, Paul Strauch and Beatrice Walton suggested that CA1 may oblige a
departing state to examine foreseeable and seriously damaging implications of its withdrawal,
implying that there are end-of participation duties precisely because of a state's earlier
engagement in an armed war. The investigation and prosecution of war crimes committed during
the conflict is the first such responsibility imposed on retreating States. States are required by the
Geneva Conventions to look for anyone who are believed to have done grave violations of the

5
Supra Note 1, at 33
6
Id.
7
Supra Note 1, at 107
8
Supra Note 1, at 101

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Conventions and bring them before their national tribunals. "States must investigate war crimes
allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate,
prosecute the suspects," according to Rule 158 of the ICRC Customary Law Study, that implies
that "States must investigate war crimes allegedly committed by their nationals or armed forces,
or on their territory, and, if appropriate, prosecute the suspects," and that "States must investigate
other war crimes over which they have jurisdiction." Although this is a "peacetime" commitment
in the view that it compels a State not involved in a war to prosecute people on its territory who
have perpetrated IHL violations, it applies with special force to states who have been involved in
a conflict. Indeed, conflict participants are more likely to have a thorough understanding of what
happened and greater access to important facts. A State "shall take action when it is in a position
to investigate and gather evidence, expecting that either it or a third State, through legal help,
would benefit from this evidence at a later time," according to the GC I Commentary 9. Other
end-of-participation requirements that work similarly to the responsibility to investigate and
prosecute are the obligations to seek for missing individuals, aid with family reunions, and
preserve gravesites. Indeed, unlike the responsibility to investigate and punish, these
requirements are not addressed directly in the broad paragraphs detailing the Geneva
Conventions and Additional Protocols' temporal scope. Instead, the execution of each rule in
light of its underlying aims appears to be the source of their post-conflict significance.
Nonetheless, some related responsibilities include more clear allusions to their duration. For
example, GC IV Article 24 requires States to take measures “in all circumstances” to assist
children who are separated from their families, while AP I Article 74 obligates States to
“facilitate in every possible way” the reunion of dispersed families10. In comparison to such
rules, the responsibilities to search for missing individuals, as laid forth in several sections of the
Geneva Conventions and Additional Protocols, are more implicitly continuous in nature, as there
is no express time limit on their implementation. The responsibility to search for missing
individuals is thought to be established tacitly under the Geneva Conventions, as the
Conventions require parties to create an information bureau to collect and convey information
concerning protected persons, as well as to reply to inquiries. Whereas AP I Article 33(1)
establishes a starting point for the need to search, the provisions, like the ICRC's counterpart
articulation of the customary obligation on States to search for missing persons, is not restricted
in time11. Whereas these rules in relation to missing persons are often referred to as "peacetime"
obligations, it is worth remembering that they envisage State action as soon as possible during an
armed conflict, even if that action is likely to be carried out towards the end of hostilities or a
conflict.

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9Paul Strauch, Jus ex bello and international humanitarian law: States’ obligations when withdrawing from armed
conflict, International Review,( Mar. 20, 2022, 22:36), https://international-review.icrc.org/articles/jusex-bello-and-
ihl-withdrawing-from-armed-conflict-914#footnoteref9_srlxnd0.
10
Id.
11
Beatrice Walton, Three Lingering Questions about the Legality of Withdrawal from Syria: Part II – Duty to
Ensure Respect & Releasing ISIS Detainees, OpinioJuris,( Mar. 20, 2022, 22:36),
http://opiniojuris.org/2020/01/08/three-lingering-questions-about-the-legality-of-withdrawal-from-syria-partii-duty-
to-ensure-respect-releasing-isis-detainees/

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VII. CONCLUSION
States must abandon armed confrontations as frequently as they engage them. Withdrawals from
conflicts in recent years have highlighted the necessity for states to think about how they do so.
The rules of armed conflict are pertinent to this subject, since they impose a number of long-term
duties aimed at preventing unnecessary suffering and securing some basic levels of
accountability, as demonstrated in this article. Some of these responsibilities are tied to specific
timeframes in IHL treaties, while others are just more implicitly applicable during, and even
after, withdrawal. When transitioning between the in bello and post bellum stages of armed
conflict, such principles provide the minimal content of States' IHL duties. Finally, and most
crucially, this paper encourages deeper consideration of the IHL norms that correspond to jus ex
bello principles. By beginning to operationalize the IHL rules pertaining to the end of
participation, this article has accordingly sought to better understand their application to
challenging factual situations, and by doing so, encourage future efforts aimed at their
improvement.