It has been well over a month since the intra-Afghan talks began with much fanfare. The talks – delayed by wrangling over prisoner exchanges and team compositions – were expected to proceed apace with the first round being concluded within days. After all, the sides were only expected to set a joint agenda and agree on a framework for the substantive issues. A quick conclusion of this round could have helped build much-needed momentum for the negotiations. Instead the talks came to a grinding standstill as the two sides became bogged down in what would seem to be symbolic references in the framework.
At the center of the drama are the disagreements over the reference to the Doha Agreement as well as reference to the Hanafi fiqh, a school of jurisprudence.
Basis for talks
The Taliban have insisted that the Doha Agreement between the United States and the Taliban should be referenced as the basis for the current negotiations. The Taliban argue that if not for this agreement, they would not have sat across the table with a side representing the Republic.
Initially, the government side had suggested that a reference to the Doha Agreement can be made, but only if a similar reference is made to the US-Afghanistan Joint Declaration or the 2020 Loya Jirga decision. The Taliban refused to include such references, hinting that the Joint Declaration did not have the same political status as the Doha Agreement. The language of Taliban interlocutors suggested that unless the Doha Agreement was the sole point of reference, no further progress could be expected in the intra-Afghan negotiations.
The Taliban made these comments in a series of public interviews in which they scolded the government side for leaking details of the ongoing negotiations despite an agreement ensuring that no unauthorised statements would be made.
This sparked diplomatic brinksmanship between the two sides, with National Security Adviser Hamdullah Mohib weighing in and arguing that as the Afghan government was not included in that agreement, the conditions of that agreement could not be imposed on the Afghan people.
A comparison of the Doha Agreement and the Joint Declaration, however, suggests that the Afghan government might have already agreed that the Doha Agreement was the basis for intra-Afghan talks. Interestingly, the Joint Declaration references the Doha Agreement nine times whereas the Doha Agreement makes no mention of the Joint Declaration.
In the Joint Declaration, the government “takes note” of the Doha Agreement “as an important step towards ending the war.” Furthermore, the Joint Declaration also states that the US-Taliban Agreement “paves the way for intra-Afghan negotiations” and the Islamic Republic of Afghanistan “reaffirms its readiness to participate in such negotiations.”
It is unclear if the government was unaware of the implication of the language used in the Joint Declaration, or whether the government's hard line is prompted by other considerations, including the Taliban's insistence that Hanafi fiqh be made the ultimate point of reference for resolving issues arising during the course of intra-Afghan negotiations.
The other sticking point between the negotiating sides is the Taliban's demand that Hanafi fiqh be the ultimate point of reference for disagreements over religious texts. It has been suggested that this demand has a relatively narrow scope, applying only to aspects of the terms and conditions. However, Taliban interlocutors such as Khairullah Khairkhwa and Salam Hanafi have stated in their interviews that “religious texts should be interpreted according to Hanafi fiqh.” This clause would essentially mean that whenever the two sides disagree on substantive issues, then reference will be made to the Hanafi school of jurisprudence to resolve these disputes. In this article, for example, the Taliban rely exclusively on somewhat scant Hanafi jurisprudential opinions to justify the continuation of war post-US withdrawal and reject claims by other Islamic scholars.
Presumably, the Taliban's rationale is that Afghanistan is a Hanafi-majority country and therefore the Hanafi school of jurisprudence should be the authorized point of reference. As clarified in their interviews, this does not mean that minorities will also be subjected to this majority school of thought in their legal dealings. As Khairkhwa pointed out, once the negotiations progress to the constitutional review stage, provisions will be included to allow the country's Shia minority to apply Jafari fiqh in their personal affairs – a provision already incorporated in the current constitution.
The government has so far refused to accept this demand. Publicly expressed concerns around this issue have tended to focus on the implications for minorities such as the country's sizeable Shia population as well as its non-Muslim constituency. Some have even stated that this demand could be acceptable to the government if express reference is also made to the Jafari fiqh school being followed by Afghanistan's Shia population. It can be argued, however, that the government's concern on this issue may run much deeper than a difference of wording.
The compromise on applying Hanafi fiqh to disputed issues is a major concession and one that the government side is unlikely to cede, except in the context of a quid pro quo. As pointed out, applying Hanafi fiqh to disputed issues during the negotiations clearly limits the room to maneuver for the government while negotiating on major issues including the role of women in society, the rights of citizens, the role and responsibilities of government and other major issues.
Article 130 of the current constitution provides for Hanafi fiqh as the law of the land, but its role is supplementary to the constitution and other legal provisions. According to this article, Hanafi fiqh is expected to fill in “gaps” left by legislative provisions to prevent non liquet, rather than act as the primary source of law in the country. What the Taliban is proposing might not just elevate Hanafi fiqh as the preeminent source of law, but essentially as the peremptory source for all political discussions.
From the government's perspective, this would severely limit their ability to defend principles of the current political order. It could also set the stage for making Hanafi fiqh the preeminent source of law once negotiations progress to the constitution review phase. It would therefore seem more appropriate that the discussion on the role of Hanafi fiqh should be discussed at the substantive phase of negotiations and likely in the context of bilateral concessions rather than this preliminary procedural phase.
Perhaps, as a compromise, the Taliban can specify exactly how it envisions Hanafi fiqh to be applicable to the negotiations and spell out the exact areas in which Hanafi fiqh would act as a point of reference, rather than demanding that it becomes a blanket monopoly on all issues. By specifying issues and highlighting which aspects of Hanafi fiqh would be relevant to those issues, the two sides could progress with more certainty.
For now, the two sides continue to be at loggerheads over these two issues. Initial restraint and diplomatic etiquette quickly gave way to acrimonious media statements. Supporters of the Republic insist that the Taliban are negotiating in bad faith and simply buying time until foreign troops withdraw so that they can push for a military victory. Most recently, President Ashraf Ghani stated that the Taliban have no religious justificaton for their war and are suffering from a false perception of being the victors. The Taliban has accused the government of bad faith and of using delaying tactics in the hope that the US presidential elections will bring a change in US policy. The Taliban insist that the government’s demand for a long-term ceasefire is akin to surrender and something that the Republic side intends to use to eventually walk away from the negotiating table.
Despite the attempts of various outside actors, such as religious scholars and international diplomats, the two sides have been unable to achieve a breakthrough. As progress stalled in negotiations, the two sides reverted to ramping up violence as a means of military pressure that would force the other side to make concessions on the table. This was a common characteristic of both the US and Taliban in the negotiation phase leading up to the Doha Agreement. Resolute Support commanders have confirmed that military and political pressure was the key to a political settlement.
So, in the subsequent round, the two sides again reverted to this policy, ramping up military pressure to extract concessions at the negotiating table. But then the Taliban did the unthinkable. It launched an offensive on the provincial capital of Helmand. It also launched attacks in Badakhshan's capital, Faizabad. A car bomb in Ghor's provincial capital was not claimed by any group.
It is difficult to fathom Taliban intentions when it comes to Lashkargah. It seems unlikely the Taliban intended to advance and take over Lashkargah proper, as this would not only have jeopardized the US-Taliban Agreement, but derailed the entire peace process. It is likely that, as in Badakhshan, the Taliban planned to pressure the outskirts of Lashkargah as a means of placing pressure on the government side. But because of the demoralized state of ANDSF in the province, the latter withdrew without offering any serious resistance.
Regardless of its intentions, the Taliban's advance towards Lashkargah's PD4 district drew a sharp response, with US airpower intervening to prevent any further advances by pummelling Taliban positions in southern Helmand districts.
Divergent interpretations of a deal
US Special Representative Khalilzad met with Taliban officials and tweeted that a 're-set' was achieved, with both sides agreeing to strictly adhere to the Doha Agreement. This would mean, he said in the tweet, a reduced number of operations, and expectations that violence-related deaths would drop significantly. (Incidentally, the corresponding Taliban statement on this meeting makes no mention of an expected reduction of violence nor of reductions in operations.)
Interestingly, the tweet makes no reference to any of the above attacks. However, it is telling that US airpower was scrambled to halt the US advance in Helmand but no such actions were taken in Badakhshan, based on publicly available information. If that is the case, then it will confirm that “urban centers” in the US-Taliban agreement does not cover all provincial capitals. What is unclear is whether the US and Taliban have a shared understanding of which provincial capitals are urban centers and off-limits to the Taliban.
Differences over interpretation of the deal again came to the fore when the Taliban issued a statement blaming the US for violations of the agreement by bombing Taliban positions outside the immediate vicinity of fighting. US officials immediately rejected these accusations, claiming their actions were consistent with the agreement. Khalilzad also stressed the need to avoid inflammatory rhetoric, and to adhere to the letter and spirit of what was negotiated. Similar claims and counter-claims have also been made with ISAF bombardment of Taliban positions in Farah and Wardak provinces. At this stage it is unclear if the accusations of violations are prompted by political considerations or if the US has reverted to its earlier policy of applying military pressure to match the Taliban's battlefield diplomacy.
Amid the spate of violence, it is still not clear whether there is an agreement on a reduction of violence or on the overall number of operations. So far, the Taliban has consistently avoided denying or confirming whether a gradual reduction of violence was a condition agreed on in the Doha deal, or just a verbal promise between the sides. It may have simply been an expectation—not an agreement--that a reduction in violence would naturally follow from a negotiation process.
So far, what is clear is that both sides have adopted a policy of battlefield diplomacy as a means to pressure the other side into making concessions at the negotiating table. As the arduous talks drag on and challenging questions are brought to the table, it seems likely that extreme levels of violence will be exercised whenever an impasse occurs.
Ibraheem Bahiss is an independent analyst. His academic background is in international law, international relations and security studies. He is a long-time observer of Afghan politics. @Afghan_Policy
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