This article belongs to the debate » 9/11 und die Völkerrechtsordnung
04 Oktober 2021

Intermediate Solidarities: The Case of the Afghan Interpreters

The Western imaginary of solidarity to distant others has long dominated discussions of Afghanistan: it was, for example, supposedly to save Afghan women that the invasion and occupation of the country was sometimes justified. This sort of solidarity is in a largely cosmopolitan vein, genuine or not. At the same time, the fate of troop members and veterans has long evidenced a much more national and communitarian type of solidarity: toward service members who have made sacrifices in the pursuit of the US’s defense, or at least national interest.

This commentary looks, instead, at what might be described as intermediary solidarities which have been much in the news of late: neither national nor cosmopolitan but occupying a place in between that borrows characteristics of both. The 20 years following 9/11 have drawn on a wide range of local suppletives who have put themselves in harm’s way to aid foreign interventions. I suggest as a case study the now emblematic predicament of Afghan interpreters, formerly employed by Western armies (most notably the US, the UK and Canada). I contrast a sense of patriotic noblesse oblige to former allies with a more critical international evaluation of the status of interpreters. In doing so, I hope to at least problematize a sort of reflex solidarity with Western allies (even if it were consistent and up to the occasion) as the be-all and end-all of moral horizons in the post-occupation Afghan hellscape.

The Poverty of Transnational Imaginings of Solidarity

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 divides.

International law does not furnish categories of privileged personnel for the purposes of post-war relocation. One can see how one might want to concoct such a regime from a notion of the just post bellum. From a broad Just War theory perspective, it might be contended that, having failed to implement one’s war goals, one should at least not leave persons who directly assisted in the pursuit of those goals in a worse position than they were at the outset. Michael Walzer and others have specifically hinted at this.

Be that as it may, the reality is that international humanitarian law, for example, is focused on duties towards former enemies, not former allies. From the perspective of international human rights law, foreign troops hardly have ‘jurisdiction’ over their former employees that would inform direct obligations towards them. Their fate essentially falls to be regulated, if anything, by the default regime of refugee law. Under that heading, Afghan interpreters are certainly at risk of persecution, and as such may be eligible for asylum. Unlike some of the rationales for relocation explored below in relation to the US, this has the advantage of being a claim that is exercisable, very theoretically, in any country. But this broad international refugee framing has two drawbacks. First, it renders them vulnerable to all the complications associated with seeking refugee status. Second, it banalizes their specificity, merely putting them in line with a host of persons from which one may think they differ in some respects.

Instead, the obligation to Afghan interpreters, such as it is, may need to be framed on a transnational basis between the Afghan interpreters themselves and the US. This is independent of the fact that US veterans may feel and act as if they have their own personal duties to their former aides, or the possibility that at some point in the future the Afghan government would conclude some kind of agreement with the US to facilitate their departure (this is highly unlikely at present but something along those lines was once negotiated with the Vietnamese government by the OHCH in the form of the “orderly departure program”).

If not International Law, then…

Rather than the broad framework of international law, then, the decisive site may be domestic law and policies with a transnational dimension. It remains, of course, possible for states as a matter of their own immigration law to foreground the claims of particular, somehow meritorious individuals. In effect, this is what the US, Canada and the UK have done through special visa programs, cumbersome and not up to the task as they have proved in the circumstances. Such regimes do fast track applicants, although they are also promoted on a merely humanitarian and ex gratia basis. They therefore do not provide a particularly strong basis for a notion of an obligation towards one’s former aides.

It may be useful here to think instead in terms of private law, at least by very rough analogy given the complexity of jurisdictional issues and the unlikeliness of conventional adjudication. To the best of this author’s knowledge, no contract recruiting local staff in Afghanistan included an actual promise of exfiltration and resettlement into the country of employment, if things turned sour. It does not seem that such a promise could be implied without more, as a matter of ordinary contractual interpretation, since it is hardly an ordinary feature of employment contracts.

One track might be to think of the relation between interpreters and the US as a form of quasi-contract, preventing a party from unfairly benefiting from a situation at the other’s expense. Yet this is an awkward construction given the existence of actual contracts of employment in this case. A somewhat similar track would be to consider that a kind of promissory estoppel is involved, perhaps on the margins of actual contracts, in that specific representations were made by the US executive and military to Afghan employees that they would be taken care of. Those concerned might thus assert that they reasonably relied on such a promise (working with the US) and stand to suffer (death) if that promise is broken.

Alternatively, the situation has occasionally been said to give rise to a fiduciary obligation on Western states to act in the best interest of Afghan interpreters. Fiduciary obligations involve a duty of loyalty and care by agents with the ability to exercise discretion or power unilaterally in ways that can affect a beneficiary’s interest. They arise when a person places trust in another to act in their best interest, which arguably Afghan employees have in relation to their US employer. A breach of fiduciary duty would result from the US having failed to act responsibly towards Afghans, for example, by not anticipating the risks to them or adequately speeding up the processing of their applications, or by displaying carelessness in protecting the confidentiality of employment records.

“Traduttore, Traditore”?

Imagining the duty as one owed by the state that employed them to former employees, however, provides only a truncated picture of where Afghan employees stand in the world, based on a particular, hypertrophied vision of US national interest and duties. A famous Italian aphorism has it that “to translate is to betray.” This is of course concerned with a rather inoffensive form of linguistic betrayal. The question bears asking, however, how one should conceptualize the role of Afghan “interpreters” in the broader scheme of things and whether their translating, regardless of its linguistic fidelity, constituted a political betrayal of a deeper kind. I use “interpreters” here in the strict sense but also in the broader meaning of persons acting as go-betweens and facilitators for US occupation in Afghanistan.

Because their fate is currently so precarious, problematizing Afghan staffs’ position may appear to be unhelpful and ungenerous. And because the Taliban have themselves been in cahoots with various foreign secret services and transnational terrorist networks, for example, they seem to be in no position to blame anyone for foreign acquaintances. Certainly, many who have worked for US forces have done so for no other reason than because they needed to make a living. Whatever their status, of course, nothing justifies that they be treated unlawfully and in violation of their rights.

But a certain patriotic US discourse of solidarity with individuals who risked their lives “for the US”, based on sentimental stories of camaraderie between soldiers and their helpers, can blind us to the reality that prima facie working for occupying troops has long been seen as problematic, and not just by the Taliban. This is especially so when an occupation results from an illegal invasion (as in the case of Iraq, for example), overstays its welcome, props up an illegitimate puppet regime, or is problematic from a humanitarian point of view. One may come to be seen nationally, in ways that are at least prima facie plausible, as a traitor. The fact that one assisted a foreign power for lack of other professional opportunities, as a result of difficult circumstances or in an apolitical way has evidently not been a defense in other contexts. During the Second World War French collaborateurs, Jewish Kappos, and various quislings have gone down as being on the wrong side of history and in some cases far worse. Closer to us, the fate of the Algerian harki has opened up a gaping wound in France-Algeria relations.

This suggests that simply “having served the West” does not per se and unproblematically give a free pass without at least attention to the nature of one’s involvement. For example, the emphasis on “interpreters” in public discourse masks the extent to which many who worked with and for the US had less neutral civilian roles, and in their military capacity also occasionally exhibited harshness and excess, with protection from occupying forces. In fact, behind the image of the meek interpreter lies a more complex reality where some were not only fully embedded in problematic US commandos (for example in assisting interrogations), but engaged in their own criminal initiatives. The occupation also thrived on indecent amounts of war profiteering. In other circumstances, a change of regime might be an opportunity to prosecute some of those associated with it.

International law as such does not really have any obvious stake in the definition of treason, but it can set the stage against which it might be evaluated. The argument that working for the Americans is not treachery can be made, but it is necessarily complex and cannot be engaged in without, in effect, critically re-litigating 20 years of US wars in Afghanistan. The invasion of Afghanistan was on much more solid grounds than the invasion of Iraq. The Americans, after a time, evidently left way to an Afghan government that allowed their presence with the blessing of the Security Council. Working for foreign powers was thus validated, from a security or legal point of view, by the Afghan state as it then was. Moreover, an argument might be made that whatever the errors of American presence in Afghanistan, the occupation served the broad purpose of rebuilding the country and gave cover to all kinds of worthy civil society initiatives. That it did so whilst at least partly usurping Afghan sovereignty does not mean, the argument might go, that, in working for the Americans, Afghan staff were not in a deeper way working for their own country.

Nonetheless, this requires taking the US and international narrative about the invasion of Afghanistan at face value. It remains that the Afghan government was largely propped up by the international presence. It served ambiguous ends. It was deeply corrupt. The Taliban may be a wretched, tyrannical and fanatic group but at least they cannot be accused of being a foreign invader. Their “victory” in reclaiming Afghanistan is less a validation of their political legitimacy than it is a complete disavowal of the previous Afghan regime, which simply melted away and never found the courage to stand up for itself. Western states also served their own ends by prolonging the occupation, often inflicting relentless misery through drone warfare and the like. Their very failure to do away with the Taliban reflects the vanity and futility of the occupation.

Conclusion: The problem with intermediary solidarities

The demand made on behalf of US Afghan personnel, to be clear, is often not only for an objective treatment: it is also for all intents and purposes for a preferential treatment, in that among the tens of thousands (if not more), who would like to flee Afghanistan, it foregrounds the fate of a minority who have most directly aided Western designs in the country. This may be required from a humanitarian perspective because of the immediate threats that exist against them – and one can certainly have sympathy for individual cases.

Nonetheless, one of the regrettable ironies of privileging the fate of Afghan suppletives may be that it is those who in some cases have most deeply been compromised in US imperial ventures who are singled out for evacuation. It drowns our understanding of the complexities involved into a groundswell of provincial patriotism. That patriotism, expressed as a form of fidelity to one’s friends, is certainly not indefensible on its own terms; but it ultimately has little to do with the values of international law.

Although as it turns out, lack of strategic foresight, poor intelligence and administrative incompetence have made the evacuation of even close US allies difficult, this should not blind us to the colossal failure of 20 years of occupation of Afghanistan. Not challenging the implicit narrative that “if only we could save our allies, then everything could be made right” (or that the worst thing about US occupation was its pullout), is one more failed opportunity to problematize the US invasion and occupation of Afghanistan, its broader connection to the “War On Terror,” and responsibilities therein. What is true of Afghanistan may well be true a fortiori of Iraq.

Tales of solidarity with Afghan allies, then, should be tempered by an attention to how they can perversely deproblematize their role, and make less visible no less meritorious aspirations to flee by persons who are vulnerable because of who they are rather than because of the choices they made.


SUGGESTED CITATION  Mégret, Fréderic: Intermediate Solidarities: The Case of the Afghan Interpreters, VerfBlog, 2021/10/04, https://verfassungsblog.de/os1-intermediate-solidarities/, DOI: 10.17176/20211004-124858-0.

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