This brief analysis examines Pakistan’s airstrikes on Afghan territory and the resulting civilian casualties in light of international humanitarian law and the Rome Statute. It also raises the question of whether, if the necessary elements are met, these attacks could constitute war crimes within the territorial jurisdiction of the International Criminal Court. This analysis does not address the issues of the attacks’ legitimacy or the violation of national sovereignty.
Recent Pakistani airstrikes in parts of Nangarhar and Paktika provinces have once again raised a fundamental question: when a state conducts operations across the border under the banner of “counterterrorism,” yet the result is the killing of women and children and the destruction of civilian homes, how should this situation be assessed under international law? Politically, these events continue the dangerous cycle of “attack, retaliation, attack” between Pakistan and the Taliban as Afghanistan’s de facto authorities. Legally, however, the matter extends beyond an international armed conflict. Targeting civilians or civilian objects, if it violates core principles of humanitarian law, may give rise to the question of war crimes.
According to published reports, Pakistan described the airstrikes conducted on the night of February 21–22, 2026, as “intelligence-driven and targeted operations” against hideouts of the Tehrik-e-Taliban Pakistan (TTP) and affiliated groups. In contrast, de facto Taliban officials and local sources reported that residential areas were hit, resulting in dozens of civilian deaths and injuries. UNAMA, in its preliminary assessment, reported that in the Behsud and Khogyani districts of Nangarhar, at least 13 civilians were killed and seven others wounded. Simultaneously, local sources and some media outlets cited higher figures. Such discrepancies in early reports are not unusual immediately after attacks. What remains undisputed is that civilian casualties from cross-border strikes have been credibly documented, making legal scrutiny unavoidable.
Field images and reports show that the Behsud district, particularly villages such as Gordikes, became a devastating example of the attack, with destroyed homes, ongoing searches for victims under the rubble, and mass burial ceremonies. These images are not only emotionally powerful, but they are also legally significant. They raise crucial questions: What was the precise target of the attack? What was the nature of the location? Was the strike focused on a legitimate military objective? In such cases, the distinction between “security claims” and “legal assessment” is critical.
Previous Incidents: A Recurring Pattern with High Civilian Costs
The recent attack should not be seen as an isolated event. When considered alongside similar past attacks, at least six major waves of cross-border airstrikes and armed incidents can be identified since the Taliban’s return in August 2021, directly or indirectly attributed to Pakistan and repeatedly resulting in civilian casualties. Examples include incidents in April 2022, March 2024, December 2024, October 2025, November 2025, and February 2026. For instance, UNAMA reported that airstrikes in Khost and Kunar in April 2022 caused dozens of civilian deaths, including women and children. In March 2024, UNAMA’s quarterly reports noted cross-border incidents leading to civilian casualties, highlighting the vulnerability of civilians in border areas.
In December 2024, this pattern of civilian deaths was shockingly repeated. UNAMA’s October–December 2024 quarterly report recorded airstrikes in Barmal, Paktika, hitting several villages and leaving dozens dead or wounded, mostly women and children. The same report noted civilian casualties from cross-border shelling in Dand-e-Patan, Paktia. In October and November 2025, a new wave of airstrikes and border clashes occurred, with UNAMA statements reporting heavy civilian casualties, especially during the October fighting, emphasizing the urgent need to respect the principles of distinction, proportionality, and precaution. In a subsequent thematic UNAMA report on civilian casualties from cross-border events, published in February 2026, it was documented that in the last quarter of 2025 alone, 70 civilians were killed and 478 were injured. These figures indicate that the February 2026 attack is part of a chronic pattern in which Afghan civilians repeatedly bear the brunt of the security confrontations between the two sides.
Legal Nature of the Conflict: Why This Situation May Constitute an International Armed Conflict
From the perspective of international humanitarian law, Pakistan’s cross-border airstrikes on Afghan territory and border armed clashes between Pakistani forces and the de facto Afghan authorities can, at least for legal analysis, be considered within the framework of an international armed conflict. The main criterion here is the “use of armed force between two state parties across a border,” regardless of whether war has been formally declared or reached the intensity of conventional wars.
In simple terms, when a state deploys air and military force into Afghan territory, resulting in armed conflict and civilian casualties, the rules governing conduct in international armed conflicts, including distinction, proportionality, and precaution in attack, are fully engaged. This classification is critical because it provides the foundational element for the potential commission of war crimes, transforming it into a concrete legal question: Were the binding rules for protecting civilians in armed conflict observed?
Even if there is debate over the precise classification of certain attacks, such disagreement does not diminish the core issue. Fundamental rules protecting civilians, particularly the prohibition on directing attacks against civilians, prohibitions on disproportionate attacks, and the obligation to take necessary precautions, remain central to any assessment. Consequently, the legal argument regarding the attack is reinforced both by its classification as an international armed conflict and by general and customary principles of humanitarian law.
Legal Framework: The Geneva Conventions and Core Principles for Protecting Civilians
In this context, three fundamental principles, distinction, proportionality, and precaution, must guide any legal analysis.
First, the principle of distinction: Parties to a conflict must differentiate between military objectives and civilian persons or objects. In practical terms, homes, schools, civilian infrastructure, and civilian populations are presumed protected unless they have been specifically and verifiably transformed into military objectives. The mere claim that an armed group is present in an area does not automatically justify an attack. A legal assessment must ask: What exactly was the target? How was it identified? Was there sufficient information to determine the military nature of the target?
Second, the principle of proportionality: Even if a target is deemed military, an attack may be unlawful if the anticipated civilian harm is “clearly excessive” relative to the expected military advantage. This principle is particularly relevant for airstrikes, where operational distance, reliance on intelligence, and the destructive radius of munitions increase the risk to civilians. Verified reports of civilian deaths, including children and women, automatically place proportionality at the center of the legal inquiry.
Third, the principle of precaution in attack: Humanitarian law does not evaluate only the outcome of an operation; it also examines the decision-making process and conduct of the attack. Was the target verified to the greatest extent possible before striking? Were the timing and method of attack chosen to minimize civilian harm? If the risk to civilians was high, should the strike have been delayed or canceled?
UNAMA, in response to the recent strikes, emphasized these three principles, even without explicitly labeling the situation as an armed conflict. Therefore, the legal discussion today is not merely about “who said what.” It concerns whether these binding standards were observed. The significance of this legal analysis is that it prevents the victims’ narrative from being overshadowed by the political and security narratives of the parties involved.
Can these attacks constitute a war crime?
Legally, it is possible, but a definitive determination requires independent, evidence-based investigation.
Under the Rome Statute, war crimes in international armed conflicts include: intentionally directing attacks against the civilian population, deliberately targeting civilian objects, or conducting attacks with knowledge that civilian casualties would be clearly excessive relative to the military advantage. Therefore, if independent investigations show that the recent strikes were conducted without adherence to distinction, proportionality, and precaution, or that civilian sites were deliberately or unjustifiably targeted, the question of “war crime” becomes both serious and legally grounded.
Several elements in the current context heighten legal suspicion: first, UNAMA’s credible documentation of civilian casualties; second, field reports of strikes hitting residential areas; and third, the stark discrepancy between Pakistan’s official narrative and local/Taliban accounts. However, moving from “legal suspicion” to a formal case requires additional evidence, including the type of munitions used, precise impact locations, weapon remnants, witness testimony, hospital records, and analysis of the alleged targets.
Afghanistan and the Jurisdiction of the International Criminal Court
Afghanistan has been a state party to the ICC since May 1, 2003. Under the Rome Statute, crimes committed on the territory of member states fall within the Court’s jurisdiction, regardless of the perpetrator’s nationality.
In other words, if one or more of Pakistan’s airstrikes in Afghan territory satisfy the elements of a war crime, the ICC’s “legal gateway” for exercising territorial jurisdiction is potentially open. Jurisdiction alone, however, is not sufficient; practical ability to prosecute requires evidence, access, cooperation, and investigative prioritization. Nonetheless, the existence of legal jurisdiction elevates the discussion beyond moral condemnation or political rhetoric into the realm of international criminal accountability.
Investigations and Prioritization of Ongoing Crimes
The ICC Prosecutor’s Office has been investigating the situation in Afghanistan since October 2022. According to the Prosecutor’s decision, ongoing crimes listed in Article 5 of the Rome Statute take investigative priority, while crimes occurring since May 1, 2003, but no longer ongoing, remain under review but are not prioritized. While investigations are confidential, public statements have indicated that crimes against Afghan women and girls are under examination. In July 2025, the ICC obtained arrest warrants for Mullah Hibatullah Akhundzada and Mawlawi Abdul Hakim Haqqani, identifying them as high-level suspects. Within the framework of ongoing crimes, if civilian casualties from Taliban airstrikes satisfy the elements of war crimes and are properly documented and shared with the ICC, they could potentially attract prompt preliminary examination.
In practice, the Prosecutor faces constraints of resources, security, and cooperation, necessitating prioritization. Factors such as severity, risk of recurrence, feasibility of documentation, and potential deterrent impact influence investigative focus. Repeated cross-border strikes resulting in civilian casualties should, at a minimum, trigger legal warnings, documentation, and preliminary review, especially when UNAMA reports indicate a pattern of significant casualties over short periods.
Key Challenge: Taliban Non-Cooperation and Contradictory Positions
Alongside legal discussions, a major practical obstacle is the Taliban’s lack of cooperation with the ICC. On one hand, they legally denounce Pakistani strikes as violations of sovereignty and international law. On the other hand, they refuse to cooperate with the ICC, the principal international institution empowered to address crimes in Afghan territory. This contradiction is stark. When the ICC issued arrest warrants for senior Taliban leaders, the Taliban spokesperson declared that Afghanistan does not recognize ICC membership. While this does not alter Afghanistan’s membership, it clearly signals non-cooperation.
If the Taliban genuinely seek to protect Afghan civilians, they must prioritize three legitimate legal actions: granting access for independent documentation, preserving crime scenes and evidence, and supporting witnesses and victims’ families. Blanket rejection of international justice mechanisms ultimately harms victims most, as in the absence of reliable domestic investigative institutions, blocking international accountability perpetuates impunity.
What Should Be Done? From Documentation to Deterrent Action
First: Documentation. At this stage, preserving and standardizing evidence is more critical than political condemnation. If these strikes are to be examined in any domestic or international forum in the future, baseline information must be recorded today. Essential data include victims’ names and ages, precise strike locations, time of attack, images and videos, hospital records, eyewitness testimony, and technical documentation of munitions when possible. Experience shows that delays in recording such data can permanently distort the truth in airstrike cases.
However, there is a serious political obstacle: the Taliban not only fail to cooperate with international mechanisms but have weakened key domestic investigative and accountability capacities. In 2022, the Taliban dissolved the Independent Human Rights Commission of Afghanistan. In 2023, they abolished the Attorney General’s office, replacing it with an institution focused on executing directives from Mullah Hibatullah rather than independent investigation or prosecution. In this context, credible, independent investigation and documentation are currently extremely limited.
Media access is also restricted, making it difficult for journalists to reach sensitive areas. UNAMA reports on media freedom note arbitrary detentions, intimidation, and pressure on journalists. Regarding Pakistani airstrikes in Afghanistan, sufficient credible documentation reflecting victims’ and eyewitnesses’ accounts is not yet publicly available.
Second: Deterrent Legal Statements. While documentation proceeds, the ICC Prosecutor can issue clear legal reminders to all parties that attacks on civilians, disproportionate attacks, and violations of precautionary measures may fall within ICC jurisdiction if elements of war crimes are met. Such statements do not replace investigation but have two key effects: first, deterrence of future decisions by conflict actors; second, signaling to victims that their suffering is recognized and can be formally documented.
Conclusion
Pakistan’s recent strikes on Nangarhar and Paktika should not be framed merely as “counterterrorism” or “border conflict.” Repeated airstrikes and cross-border clashes, potentially constituting an international armed conflict, and civilian casualties, potentially constituting war crimes, place the issue squarely within international humanitarian and criminal law. Within this framework, the central legal question is clear: Did Pakistan observe the principles of distinction, proportionality, and precaution in these strikes? If not, are the elements of war crimes met?
The final determination requires independent investigation. But even now, credible legal suspicion exists and must not be overshadowed by security claims or political rhetoric. Afghanistan suffers from a lack of victim-centered narratives and justice. If the Taliban genuinely care for civilian lives, they must open the path for investigation and cooperation. And if the ICC intends to play a serious deterrent role in Afghanistan, now is the moment to issue a clear legal statement explaining the consequences of this deadly cycle to the conflict parties.
