The fifth anniversary of the agreement highlights its profound impact on Afghanistan’s trajectory. While initially framed as a pathway to peace and a structured withdrawal of U.S. forces, the agreement ultimately facilitated a swift Taliban takeover, resulting in the collapse of the government of Afghanistan and its security forces. Rather than ensuring stability, it has contributed to ongoing political uncertainty, international isolation, and a worsening humanitarian crisis, with millions projected to require assistance in 2025.
As a second Trump administration is now underway, the Doha Agreement and its legal validity should be reconsidered. The U.S. government negotiated the Doha Agreement directly with the Taliban as a non-state armed group while excluding the internationally recognized government of Afghanistan. By excluding the government based in Kabul, the U.S. undermined any hope for settling the war in a manner that would safeguard the rights of the people. The agreement’s design notably lacked substantive protections for fundamental rights, particularly those concerning women’s rights and political freedoms, which are essential for a post-conflict environment conducive to justice and equality.
Moreover, chaotic implementation of the agreement compounded its inherent flaws. The accord was struck without adequate enforcement mechanisms to address non-compliance, thereby undermining international commitments and emboldening the Taliban. To make matters worse, the U.S. did not attempt to enforce the Taliban’s supposed commitments. Despite serious breaches by the Taliban, including heightened violence and continued ties with terrorist groups (namely, al Qaeda), the U.S. executed its full withdrawal from Afghanistan without attempting to make the Taliban live up to its end of the bargain. The agreement also contravened existing legal obligations established under earlier bilateral agreements, including the Strategic Partnership Agreement (SPA) signed in May 2012 and the Bilateral Security Agreement (BSA) signed in September 2014.
The international community should learn from the legal and strategic failures of the Doha Agreement, including the risks associated with excluding key stakeholders, disregarding pre-existing commitments, and neglecting mechanisms to protect fundamental rights. Addressing these shortcomings is essential for the development of more effective and legally sound peace agreements in the future.
Doha Agreement’s Legal Status: A State and Non-State Pact
The binding nature of agreements between states and non-state actors under international law presents a complex and evolving legal framework. Traditionally, international law has focused on relations between states, which are recognized as the primary subjects within the international legal system. This is clearly articulated in the Vienna Convention on the Law of Treaties (1969), which defines a treaty as an international agreement concluded between states in written form and governed by international law.
However, the changing dynamics of international relations have increasingly led to the inclusion of non-state actors, such as armed groups, as parties to international agreements. Although these non-state entities lack the formal capacity to engage in traditional international lawmaking, their inclusion in such agreements can carry significant legal and practical implications.
In particular, agreements between states and non-state armed groups, especially within the context of peace processes, may attain binding status when internationalized through the involvement of third-party states or international organizations acting as mediators, facilitators, witnesses, or guarantors. In addition, these agreements may be recognized as binding when formally incorporated into domestic legislation. Still, the binding effect of such agreements remains a subject of debate and depends heavily on the legal frameworks and contexts in which they are situated.
There has been no definitive decision addressing whether an armed group like the Taliban, which is not recognized as a national liberation movement, can possess international legal standing in the context of peace agreements. A lack of recognition significantly impacts the ability of such groups to negotiate agreements that establish obligations under international law. For instance, the Special Court for Sierra Leone, in its consideration of the Lomé Peace Agreement concluded in 1999 between the Government of Sierra Leone and the armed opposition group Revolutionary United Front (RUF), held that being bound by obligations under common Article 3 of the Geneva Conventions “does not by itself invest the RUF with international personality under international law,” and therefore “the Lomé Agreement cannot be characterized as an international instrument.” Similar sentiments were expressed in the Armed Activities case concerning the Lusaka Agreement, where the International Court of Justice (ICJ) chose not to make a clear pronouncement on the status of the agreement, referring to it as a modus operandi pertaining to the withdrawal process of foreign troops from the territory of the Democratic Republic of Congo.
The Doha Agreement, which was negotiated and signed by the U.S. (as a state actor) and the Taliban (as a non-state armed group), raises several issues concerning compliance, enforcement, legal status and binding effect. The complexity of this situation stems from the distinct roles and capacities of the parties involved. The U.S., as a recognized sovereign state, operates within the established framework of international law. But the Taliban’s lack of formal statehood and accompanying legal status created significant challenges in terms of enforcing the agreement’s terms and ensuring compliance. Furthermore, the agreement was not embedded into the domestic legal system of the former Islamic Republic of Afghanistan. The absence of a legal foundation for its implementation and enforcement hindered the agreement’s effectiveness. The Doha Agreement also does not align with the legal structure governing unilateral declarations, as it was negotiated and concluded between the U.S. and the Taliban. While unilateral declarations can create legal obligations for the declaring state, they generally do not impose obligations on third parties unless those parties explicitly accept them.
Classifying the Doha Agreement as a formal “peace treaty” raises additional significant conceptual and legal challenges. Unlike a traditional peace treaty—which functions as a binding legal instrument that conclusively resolves an armed conflict and establishes durable commitments—the Doha Agreement aligns more closely with what is commonly referred to as a “pre-negotiation agreement.” Such agreements primarily serve as preparatory frameworks, facilitating future negotiations by outlining procedural steps, identifying shared interests, and establishing preliminary terms. Indeed, the Doha Agreement appears to have been intended to serve as a foundational instrument, as it outlined the basic structure of what a “comprehensive peace agreement” would entail after “intra-Afghan dialogue.” From the Americans’ perspective, this dialogue was intended to involve the primary stakeholders in the conflict, including the then-government of Afghanistan, which was excluded as a direct signatory to the agreement. Therefore, the Doha Agreement lacks the legal enforceability that characterizes traditional peace treaties and cannot be imposed on non-parties, such as the former government of Afghanistan. The involvement of the U.S. and the endorsement by international actors, including the U.N. Security Council, may confer a certain level of international recognition. Nonetheless, the absence of direct participation by the former government of Afghanistan as a party to the Doha Agreement, coupled with the lack of a clear legal mechanism to establish its binding effect, introduces significant uncertainties and legal ambiguity concerning its status. The contested character of the agreement reflects the broader challenges associated with the involvement of non-state actors in international legal processes.
The Terrorism Label and the Taliban’s Treaty-Making Capacity
The majority of recent conflicts have involved at least one non-state armed group, leading to their inclusion in most contemporary peace agreements. This trend—along with the relatively ambiguous status of non-state actors under international law, particularly the designation of certain groups as “terrorist” entities—raises complex questions about the implications of such designations on their participation in peace processes. The answers to these questions seem to hinge on whether the group has been designated as such under international or domestic law.
Under international law, various mechanisms allow for the designation of armed groups as “terrorist” entities, subjecting them to legal sanctions. The U.N. Security Council Committee designates entities and individuals under Resolutions 1267, 1989, and 2253. In addition, the European Union (EU) lists individuals, groups, and entities involved in terrorist activities and subject to restrictive measures. While these measures impose strict sanctions on designated entities, they do not explicitly prohibit engagement with listed groups for the purpose of peace negotiations.
On the other hand, considering the range of potential sanctions, the impact of a terrorist designation under domestic law may be particularly decisive and significant. Many countries have enacted legislation designating specific groups as terrorist organizations, which can result in the freezing of assets, imposition of travel restrictions, and even the criminal prosecution of individuals associated with these groups. For example, the U.S. prohibition on “providing material support for terrorists” explicitly forbids the provision of support or resources to entities deemed to engage in terrorist activities. As established by the U.S. Supreme Court in Holder v. Humanitarian Law Project, the provision extends to all entities that engage with a designated terrorist organization with the knowledge that the group is so designated. The application of this provision is thus not confined to those who intend to advance the illegal activities of a foreign terrorist organization.
Furthermore, the Taliban has remained classified as a terrorist entity in the U.S. under Executive Order 13224 since its enactment on September 23, 2001, less than two weeks after the September 11th attacks. The executive order, designed to target terrorist organizations and individuals associated with terrorism, explicitly listed the Taliban in its annex. Similarly, Australia enforces a special sanction regime targeting the Taliban by integrating the U.N. Security Council sanctions into its domestic sanctions law. Likewise, the EU and Canada have implemented restrictive measures against individuals and entities designated as being part of the Taliban, along with associated individuals, groups, undertakings, and entities.
The designation of the Taliban as a “terrorist entity” complicates its capacity to enter into binding agreements. However, this designation does not eliminate the possibility of engaging with the Taliban, particularly in the context of negotiations that are intended to lead to legitimate peace talks. While the Taliban’s ability to enter binding treaties may be constrained, its involvement in capacity-building initiatives aimed at facilitating a peace process is a different matter. This nuanced approach takes account of the legal limitations imposed by the “terrorist” designation, while also recognizing the practical necessity of including key actors in negotiations to achieve a lasting and sustainable peace.
It is also important to note that the classification of the Taliban as a terrorist organization under the former Afghan Republic’s domestic laws might have implications for the legal validity and binding nature of the Doha Agreement as an agreement between a state and a non-state armed group. This classification is particularly relevant given the predominant characterization of the conflict as a non-international armed conflict. Although the designation of groups as international terrorist organizations remains a contentious and complex issue under international law, the domestic terrorist designation could further complicate the recognition and enforcement of any obligations arising from such agreements.
Core Components and Legal Dimensions
The Doha Agreement encompassed four interrelated elements: the withdrawal of U.S. troops, the Taliban’s supposed counterterrorism assurances, the initiation of intra-Afghan negotiations, and the establishment of a comprehensive ceasefire. Specifically, the agreement outlined a phased withdrawal of U.S. forces from Afghanistan. In return, the Taliban committed to ensuring that neither its members, nor any other individuals or terrorist groups, would use the territory of Afghanistan to threaten the security of the U.S. and its allies. The Taliban was required to “send a clear message that those who pose a threat to the security of the United States and its allies have no place in Afghanistan,” and to “instruct” its members “not to cooperate with groups or individuals threatening the security of the United States and its allies.” The Taliban was also required to “prevent” terrorist groups that threaten the U.S. and its allies “from recruiting, training, and fundraising,” agreeing that it “will not host” such groups nor provide them with international travel paperwork for their members. Furthermore, the Taliban pledged to engage in intra-Afghan negotiations and to take steps to reduce violence as part of the broader peace process.
The agreement not only established a timeline for the withdrawal of U.S. forces but also imposed specific obligations on both the United States and the Taliban. The withdrawal of American troops was to be conducted in accordance with the agreement, contingent upon the Taliban severing ties with international terrorist organizations, including al Qaeda, and making meaningful progress in direct negotiations with the Islamic Republic of Afghanistan. From the American perspective, these negotiations were intended to lead to a comprehensive ceasefire and a political settlement.
The Doha Agreement thus embodied a framework of interconnected conditionality, linking the withdrawal of U.S. forces to the fulfillment of the Taliban’s commitments. However, the U.S. government failed to rigorously enforce the agreement or ensure that the Taliban complied with its terms. In particular, the U.S. government’s hasty withdrawal of troops meant the Taliban had no incentive to live up to its commitments under the agreement. Instead, the withdrawal of U.S. and NATO forces only further emboldened the Taliban, while fatally weakening the internationally recognized government of Afghanistan. Instead of engaging in meaningful “intra-Afghan dialogue,” the Taliban took control of the country, seizing the capital, Kabul, on August 15, 2021.
The Doha Agreement’s Inherent Weaknesses
When compared to notable peace accords, the Doha Agreement has significant shortcomings in design and normative content. For example, previous agreements between the Nepalese Government and the Communist Party of Nepal–Maoist, the Government of Indonesia and the Free Aceh Movement, as well as various accords in Sierra Leone, Myanmar, the Philippines, Northern Ireland, Guatemala, and Sudan, all included well-defined obligations, including explicit duties and safeguards for the protection of human rights and the establishment of a robust legal framework. In contrast, the Doha Agreement does not incorporate such guarantees and enforceability measures.
The U.S. government’s direct engagement with the Taliban, which served to elevate the group’s status to that of a legitimate negotiating party, also circumvented American obligations under the Strategic Partnership Agreement (SPA) and the Bilateral Security Agreement (BSA). These agreements were designed to support Afghanistan’s constitutional order, state institutions, and long-term economic and social development. These U.S. government commitments are explicitly articulated in the text of the agreements, particularly within the preamble of the BSA. Paragraph II reaffirms that “the Parties are committed to strengthen long-term strategic cooperation in areas of mutual interest, including: advancing peace, security, and stability; strengthening state institutions; supporting Afghanistan’s long-term economic and social development; and encouraging regional cooperation.” Furthermore, Paragraph VI pledges that the U.S. continue “to foster close cooperation concerning defense and security arrangements in order to strengthen security and stability in Afghanistan, contribute to regional and international peace and stability, combat terrorism, achieve a region which is no longer a safe haven for [al Qaeda] and its affiliates, and enhance the ability of Afghanistan to deter threats against its sovereignty, security, and territorial integrity.”
However, the U.S. government’s direct engagement with the Taliban excluded the government of Afghanistan from substantive negotiations, thereby undermining its existing obligations to that partner government. The U.S. government’s negotiations with the Taliban were also at odds with the international legal obligation to obtain the consent of a recognized sovereign in negotiating arrangements affecting that sovereign’s territory.
These flaws were further exacerbated by the premature withdrawal of U.S. troops from Afghanistan, leaving the recognized government without the resources for its own defense. The combination of an agreement with the Taliban that excluded the government of Afghanistan, as well as the withdrawal of the military assistance on which that government depended, emboldened the Taliban and paved the way for the group to seize power. Consequently, negotiations that were aimed at producing a sustainable peace process ultimately resulted in the Taliban’s victory.
The repercussions of the Taliban’s takeover have been severe, especially for women and girls. The Taliban dismantled the Islamic Republic of Afghanistan, which had been established nearly two decades earlier, and imposed a gender-apartheid regime in its place.
In the end, the failures of the Doha negotiations and resulting agreement impart several lessons for future would-be peacemakers. The Doha Agreement’s shortcomings demonstrate the need for inclusive peace negotiations that engage all relevant stakeholders, integrate normative safeguards for human rights and gender equality, establish robust enforcement mechanisms, and adhere to pre-existing legal obligations.
Although the first Trump administration negotiated the Doha Agreement, the second Trump administration should repudiate it. The United States need not expend military, political, or financial resources in a campaign to reverse the Taliban’s takeover. But repudiating the Doha Agreement would send a powerful message to the international community. The Taliban never complied with its counterterrorism assurances and violates the terms of the agreement to this day. For example, a U.N. Security Council report published last month confirmed that the Taliban’s intelligence service continues to shelter and protect al Qaeda leaders and members in Kabul and elsewhere. The Taliban’s own spokesman also recently stated that the group was “no longer moving forward based on that agreement.”
The new Trump administration’s repudiation of the Doha Agreement would not only recognize these realities but also serve as a warning to other armed groups, underscoring that the United States and its allies will not endorse or legitimize the acquisition of power through unconstitutional means. In addition, the Trump administration should cease all engagement with the Taliban and advocate for the closure of the group’s political office in Doha. This step would lay the groundwork for a new strategy aimed at isolating the Taliban regime and curbing its diplomatic expansion, which has facilitated the establishment of its embassies across the region and beyond.
By severing all forms of legitimacy and recognition, the U.S. can significantly undermine the Taliban’s ability to operate effectively on the global stage. This approach would not only hinder the Taliban’s diplomatic ambitions but also reinforce international norms that reject the recognition of regimes established through force and unconstitutional practices.
– Fawad Poya, Published courtesy of Just Security.
