16. August 2021

Expert: The US blocking commercial flights out of Kabul may be a violation of international law

The US military yesterday closed Kabul airport for commercial flights and now only allows military aircraft that evacuate NATO allies and employees. But it is illegal to prevent Afghans from leaving and to discriminate against refugees on the basis of nationality, says international law expert.

The heartbreaking images from Kabul airport of desperate Afghans trying to escape by clinging to US military planes on the runway show how the NATO alliance is currently operating in violation of international law, leading expert in international law expert and professor at The University of Sydney Law School, Ben Saul, told Danwatch.

Pictures and footage from the airport clearly show that Afghans trying to escape the Taliban cannot leave the country through the US-controlled airport. And that may be a breach of the US and NATO member states’ human rights obligations, said Ben Saul who teaches at Oxford and Harvard Law School.

"If NATO and the US effectively control the airport, then they must respect their human rights obligations towards the Afghans, which includes their right to freely leave their country”, he told Danwatch.

Discrimination based on nationality

According to international news agencies, the US military took control of Kabul airport on Sunday afternoon and announced shortly after that all civil flights from the Afghan airport had been suspended.

Instead, the airport was used for military flights and the evacuation of citizens of NATO member states, including Danish embassy staff, as well as the Afghans who have worked for NATO countries.

Danwatch has asked Ben Saul if it is in accordance with international law to take control of the airport and close it to commercial flights.

“Prioritizing the evacuation of foreigners on military flights, over Afghans on civilian flights, could involve arbitrary, unlawful interference in the right of Afghans to leave their own country, combined with discrimination on the basis of nationality”, he told Danwatch. 

No risk assessments

According to the news agency Reuters, US soldiers have fired warning shots amongst the many Afghan civilians who have sought refuge at the airport. Several media outlets reported casualties on Monday, including among civilians who have clung to planes as they were taking off from the airport.

Ben Saul notes that the US, which controls the airport, does not appear to make any assessment of the security needs of the Afghan civilians arriving at the airport, other than those already designated by NATO member states.

“There does not seem to be any system in place for prioritizing which Afghans who reach the airport need evacuation more than others, other than that some were previously selected by foreign states”, he said.

According to Ben Saul, the possible violations of international law apply regardless of whether the United States and NATO have made an agreement with the Afghan authorities to take control of the airport or not.

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