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International  Law  Studies 


Volume  85 


The  War  in  Afghanistan:  A  Legal  Analysis 


Michael  N.  Schmitt 
Editor 


Naval  War  College 

Newport,  Rhode  Island 

2009 


INTERNATIONAL  LAW  STUDIES  SERIES 

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ISBN  978-1-884733-64-2 


International  Law  Studies 


Volume  85 


Library  of  Congress  Cataloging-in-Publication  Data 

The  war  in  Afghanistan  :  a  legal  analysis  /  Michael  N.  Schmitt,  editor, 
p.  cm.  —  (International  law  studies  ;  v.  85) 

Includes  index. 

ISBN  978-1-884733-64-2  (hard  cover) 

1.  Afghan  War,  2001 — Congresses.  2.  War  (International  law) — Congresses. 
3.  Intervention  (International  law) — Congresses.  4.  Humanitarian  law — Con- 
gresses. I.  Schmitt,  Michael  N. 

KZ6355.W37  2009 

341.6— dc22 

2009024594 


IN  MEMORIAM 


This  book  is  dedicated  to  the  memory  of  Professor  Howard  S.  Levie — soldier, 
scholar,  patriot  and  dear  friend. 


Table  of  Contents 


The  War  in  Afghanistan:  A  Legal  Analysis 


Blue  Books xi 

Foreword xix 

Introduction xxi 

Preface xxiii 

Part  I:  The  War  in  Afghanistan  in  Context 

I  Afghanistan  and  International  Security 

Adam  Roberts 3 

II  Terrorism  and  Afghanistan 

Yoram  Dinstein 43 

III  International  Legal  Dynamics  and  the  Design  of  Feasible  Missions: 

The  Case  of  Afghanistan 
W.  Michael  Reisman 59 

Part  II:  The  Legal  Basis  for  Military  Operations 

IV  Afghanistan:  Hard  Choices  and  the  Future  of  International  Law 

John  F.  Murphy 79 

V  The  International  Legality  of  US  Military  Cross-Border  Operations 

from  Afghanistan  into  Pakistan 
Sean  D.  Murphy 109 

VI  Legal  Issues  in  Forming  the  Coalition 

AlanCole 141 


Part  III:  The  Conduct  of  Hostilities 

VII  Afghanistan  and  the  Nature  of  Conflict 

Charles  Garraway 157 

VIII  Making  the  Case  for  Conflict  Bifurcation  in  Afghanistan: 

Transnational  Armed  Conflict,  al  Qaida  and  the  Limits  of  the 
Associated  Militia  Concept 
GeoffreyS.  Corn 181 

IX  Law  of  War  Issues  in  Ground  Hostilities  in  Afghanistan 

GaryD.  Solis 219 

X  Combatants 

W.  HaysParks 247 

XI  Targeting  and  International  Humanitarian  Law  in  Afghanistan 

MichaelN.  Schmitt 307 

Part  IV:  Detention  Operations 

XII  The  Law  of  Armed  Conflict  and  Detention  Operations 

in  Afghanistan 
Matthew  C.  Waxman 343 

XIII  US  Detention  of  Taliban  Fighters:  Some  Legal  Considerations 

Stephane  Ojeda 357 

XIV  Rationales  for  Detention:  Security  Threats  and  Intelligence  Value 

Ryan  Goodman 371 

Part  V:  Stability  Operations 

XV  Jus  ad  Pacem  in  Bello7.  Afghanistan,  Stability  Operations  and  the 

International  Laws  Relating  to  Armed  Conflict 
David  Turns 387 

XVI  Stability  Operations:  A  Guiding  Framework  for  "Small  Wars"  and 

Other  Conflicts  of  the  Twenty-First  Century? 
Kenneth  Watkin 411 


vin 


XVII  The  International  Legal  Framework  for  Stability  Operations: 

When  May  International  Forces  Attack  or  Detain  Someone  in 
Afghanistan? 
Marco  Sassdli 431 

XVIII  Afghanistan  Legal  Lessons  Learned:  Army  Rule  of  Law  Operations 

Eric  Talbot  Jensen  and  Amy  M.  Pomeroy 465 

Part  VI:  Human  Rights  Issues 

XIX  Is  Human  Rights  Law  of  Any  Relevance  to  Military  Operations  in 

Afghanistan? 
FrancoiseJ.  Hampson 485 

XX  Human  Rights  Obligations,  Armed  Conflict  and  Afghanistan: 

Looking  Back  Before  Looking  Ahead 
Stephen  Pomper 525 

Appendix — Contributors 543 

Index 553 


IX 


BLUE  BOOKS 

International  Law 

Studies/Documents/Situations/Decisions/Topics/Discussions 

VOL  84 
International  Law  and  Military  Operations  (Michael  D.  Carsten  ed.,  2008)  (Vol.  84,  US 
Naval  War  College  International  Law  Studies). 

VOL  83 
Global  Legal  Challenges:  Command  of  the  Commons,  Strategic  Communications 
AND  NATURAL  DISASTERS  (Michael  D.  Carsten  ed.,  2007)  (Vol.  83,  US  Naval  War  College  Inter- 
national Law  Studies). 

VOL  82 
The  Law  of  War  in  the  2 1  st  Century:  weapons  and  the  Use  of  Force  (Anthony  M.  Helm 
ed.,  2006)  (Vol.  82,  US  Naval  War  College  International  Law  Studies). 

VOL  81 
International  Law  Challenges:  Homeland  Security  and  Combating  Terrorism 
(Thomas  McK.  Sparks  &  Glenn  M.  Sulmasy  eds.,  2006)  (Vol.  81,  US  Naval  War  College  Interna- 
tional Law  Studies). 

VOL  80 
Issues  in  International  Law  and  Military  Operations  (Richard  B.  Jaques  ed.,  2006)  (Vol. 
80,  US  Naval  War  College  International  Law  Studies). 

VOL  79 
International  Law  and  the  War  on  Terror  (Fred  L.  Borch  &  Paul  S.  Wilson  eds.,  2003) 
(Vol.  79,  US  Naval  War  College  International  Law  Studies). 

VOL  78 
LEGAL  AND  ETHICAL  LESSONS  OF  NATO'S  KOSOVO  CAMPAIGN  (Andru  E.  Wall  ed.,  2002)  (Vol. 
78,  US  Naval  War  College  International  Law  Studies). 

VOL  11 
LILLICH  ON  THE  FORCIBLE  PROTECTION  OF  NATIONALS  ABROAD  (Thomas  C.  Wingfield  & 
James  E.  Meyen  eds.,  2002)  (Vol.  77,  US  Naval  War  College  International  Law  Studies). 

VOL  76 
Computer  Network  Attack  and  International  Law  (Michael  N.  Schmitt  &  Brian  T. 
O'Donnell  eds.,  2002)  (Vol.  76,  US  Naval  War  College  International  Law  Studies). 

VOL  75 
International  Law  across  the  Spectrum  of  Conflict:  Essays  in  Honour  of  Professor 
L.C.  Green  on  the  Occasion  of  His  Eightieth  Birthday  (Michael  N.  Schmitt  ed.,  2000) 
(Vol.  75,  US  Naval  War  College  International  Law  Studies). 

VOL  74 
George  K.  Walker,  The  Tanker  War,  1980-88:  Law  and  Policy  (2000)  (Vol.  74,  US  Naval 
War  College  International  Law  Studies). 

VOL  73 
ANNOTATED  SUPPLEMENT  TO  THE  COMMANDER'S  HANDBOOK  ON  THE  LAW  OF  NAVAL  OPERA- 
TIONS (A.R.  Thomas  &  James  C.  Duncan  eds.,  1999)  (Vol.  73,  US  Naval  War  College  Interna- 
tional Law  Studies). 


Blue  Books 


VOL  72 
The  Law  of  Military  Operations:  Liber  Amicorum  Professor  Jack  Grunawalt  (Mi- 
chael N.  Schmitt  ed.,  1998)  (Vol.  72,  US  Naval  War  College  International  Law  Studies). 

VOL  71 
The  Law  of  Armed  Conflict:  Into  the  Next  Millennium  (Michael  N.  Schmitt  &  Leslie  C. 
Green  eds.,  1998)  (Vol.  71,  US  Naval  War  College  International  Law  Studies). 

VOL  70 
LEVIE  ON  THE  LAW  OF  WAR  (Michael  N.  Schmitt  &  Leslie  C.  Green  eds.,  1998)  (Vol.  70,  US  Naval 
War  College  International  Law  Studies). 

VOL  69 
Protection  of  the  Environment  during  Armed  Conflict  (Richard  J.  Grunawalt,  John  E. 
King  &  Ronald  S.  McClain  eds.,  1996)  (Vol.  69,  US  Naval  War  College  International  Law 
Studies). 

VOL  68 
Readings  on  International  Law  from  the  Naval  War  College  Review  1978-1994  (John 
Norton  Moore  &  Robert  F.  Turner  eds.,  1995)  (Vol.  68,  US  Naval  War  College  International  Law 
Studies). 

VOL  67 

Legal  and  Moral  Constraints  on  Low-Intensity  Conflict  (Alberto  R.  Coll,  James  S.  Ord 
&  Stephen  A.  Rose  eds.,  1995)  (Vol.  67,  US  Naval  War  College  International  Law  Studies). 

VOL  66 
J.  Ashley  Roach  &  Robert  W.  Smith,  Excessive  Maritime  Claims  (1994)  (Vol.  66,  US  Naval 
War  College  International  Law  Studies). 

VOL  65 

Targeting  Enemy  Merchant  Shipping  (Richard  J.  Grunawalt  ed.,  1993)  (Vol.  65,  US  Naval 
War  College  International  Law  Studies). 

VOL  64 
THE  LAW  OF  NAVAL  OPERATIONS  (Horace  B.  Robertson  ed.,  1991 )  (Vol.  64,  US  Naval  War  Col- 
lege International  Law  Studies). 

VOL  63 
ALFRED  P.  RUBIN,  THE  LAW  OF  PIRACY  (1988)  (Vol.  63,  US  Naval  War  College  International  Law 
Studies). 

VOL  62 
Readings  in  International  Law  from  the  Naval  War  College  Review  1947-1977,  II  The 
Use  of  Force,  Human  Rights  and  General  International  Legal  Issues  (Richard  B.  Lillich  &  John 
Norton  Moore  eds.,  1980)  (Vol.  62,  US  Naval  War  College  International  Law  Studies). 

VOL  61 
Readings  in  International  Law  from  the  Naval  War  College  Review  1947-1977, 1  Role 
of  International  Law  and  an  Evolving  Ocean  Law  (Richard  B.  Lillich  &  John  Norton  Moore  eds., 
1980)  (Vol.  61,  US  Naval  War  College  International  Law  Studies). 

VOL  60 

DOCUMENTS  ON  Prisoners  OF  WAR  (Howard  S.  Levie  ed.,  1979)  (Vol.  60,  US  Naval  War  Col- 
lege International  Law  Studies). 


Xll 


Blue  Books 


VOL  59 

Howard  S.  Levie,  Prisoners  of  War  in  International  Armed  Conflict  (1977)  (Vol.  59, 
US  Naval  War  College  International  Law  Studies). 

VOL  58 
WILLIAM  T.  MALLISON  JR.,  STUDIES  IN  THE  LAW  OF  NAVAL  WARFARE:  SUBMARINES  IN  GENERAL 
AND  LIMITED  WARS  (1966)  (Vol.  58,  US  Naval  War  College  International  Law  Studies). 

VOL  57 
(Not  Published) 

VOL  56 
Neill  H.  Alford  Jr.,  Modern  Economic  Warfare:  Law  and  the  Naval  Participant 
(1963)  (Vol.  56,  US  Naval  War  College  International  Law  Studies). 

VOL  55 
Carl  Q.  Christol,  The  International  Law  of  Outer  Space  (1962)  (Vol.  55,  US  Naval  War 
College  International  Law  Studies). 

VOL  54 
NATO  Agreements  on  Status:  Travaux  Preparatoires  (Joseph  M.  Snee  ed.,  1961)  (Vol. 
54,  US  Naval  War  College  International  Law  Studies). 

VOL  53 

Carl  M.  Franklin,  The  Law  of  the  Sea:  Some  Recent  Developments  (With  Particular 
Reference  to  the  United  Nations  Conference  of  1958)  (1959-60)  (Vol.  53,  US  Naval  War 
College  International  Law  Studies). 

VOL  52 
ROLAND  J.  STANGER,  CRIMINAL  JURISDICTION  OVER  VISITING  ARMED  FORCES  (1957-58)  (Vol. 
52,  US  Naval  War  College  International  Law  Studies). 

VOL  51 

Brunson  MacChesney,  Situation,  Documents  and  Commentary  on  Recent 
Developments  in  the  International  Law  of  the  Sea  (1956)  (Vol.  51,  US  Naval  War  Col- 
lege International  Law  Situation  and  Documents). 

VOL  50 
Robert  W.  Tucker,  The  Law  of  War  and  Neutrality  at  Sea  (1955)  (Vol.  50,  US  Naval  War 
College  International  Law  Studies). 

VOL  49 
Hans  Kelsen,  Collective  Security  under  International  Law  (1954)  (Vol.  49,  US  Naval 
War  College  International  Law  Studies). 

VOL  48 

INTERNATIONAL  LAW  DOCUMENTS  1952-53:  Peace  Treaties;  Defense  Agreements;  European 
Unions  (Manley  O.  Hudson  ed.,  1954)  (Vol.  48,  US  Naval  War  College  International  Law 
Documents). 

VOL  47 

INTERNATIONAL  LAW  DOCUMENTS  1950-51:  The  Protection  of  Victims  of  War  (Parti:  Conven- 
tions before  1949;  Part II:  Geneva  Conventions  of  1949)  (Manley  O.  Hudson  ed.,  1952)  (Vol.  47,  US 
Naval  War  College  International  Law  Documents). 


xill 


Blue  Books 


VOL  46 

INTERNATIONAL  LAW  DOCUMENTS  1948-49:  International  Organization;  Trials  of  War  Crimi- 
nals; Rights  Claimed  by  Littoral  States  in  Adjacent  Seas;  et  al.  (Manley  O.  Hudson  ed.,  1950)  (Vol. 
46,  US  Naval  War  College  International  Law  Documents). 

VOL  45 

INTERNATIONAL  LAW  DOCUMENTS  1946-47:  The  Treaties  of  Peace  of 1947;  Instrument  of  Japa- 
nese Surrender;  et  al  (Manley  O.  Hudson  ed.,  1948)  (Vol.  45,  US  Naval  War  College  International 
Law  Documents). 

VOL  44 
INTERNATIONAL  LAW  DOCUMENTS  1944-45:  Contraband  of  War;  The  Crimea  Conference;  Act  of 
Chapultepec;  et  al  (Payson  S.  Wild  Jr.  ed.,  1946)  (Vol.  44,  US  Naval  War  College  International 
Law  Documents). 

VOL  43 
INTERNATIONAL  LAW  DOCUMENTS  1943:  Visit  and  Search;  Destruction  of  Prizes;  War  Zones;  De- 
fense Zones;  etal.  (Payson  S.  Wild  Jr.  ed.,  1945)  (Vol.  43,  US  Naval  War  College  International  Law 
Documents). 

VOL  42 
INTERNATIONAL  LAW  DOCUMENTS  1942:  Orders  to  American  Military  Forces  in  India;  Crimes 
against  Civilian  Populations  in  Occupied  Countries;  et  al.  (Payson  S.  Wild  Jr.  ed.,  1943)  (Vol.  42, 
US  Naval  War  College  International  Law  Documents). 

VOL  41 
INTERNATIONAL  LAW  DOCUMENTS  1941:  Freezing  of  Japanese  and  Chinese  Assets  in  the  United 
States;  The  Atlantic  Charter;  etal  (Payson  S.  Wild  Jr.  ed.,  1943)  (Vol.  41,  US  Naval  War  College 
International  Law  Documents). 

VOL  40 
INTERNATIONAL  LAW  DOCUMENTS  1940:  Proclamations  and  Regulations  Concerning  Neutrality 
of  the  United  States  in  the  War  between  Germany  and  Norway;  et  al.  (Payson  S.  Wild  Jr.  ed.,  1942) 
(Vol.  40,  US  Naval  War  College  International  Law  Documents). 

VOL  39 

INTERNATIONAL  LAW  SITUATIONS  1939:  Neutral  Duties  and  State  Control  of  Enterprise;  Neutral- 
ity Problems;  Contiguous  Zones;  etal.  (Payson  S.  Wild  Jr.  ed.,  1940)  (Vol.  39,  US  Naval  War  Col- 
lege International  Law  Situations). 

VOL  38 
INTERNATIONAL  LAW  SITUATIONS  1938:  Belligerent  and  Neutral  Rights  in  Regard  to  Aircraft; 
Force  Short  of  War;  et  al  (Payson  S.  Wild  Jr.  ed.,  1940)  (Vol.  38,  US  Naval  War  College  Interna- 
tional Law  Situations). 

VOL  37 
INTERNATIONAL  LAW  SITUATIONS  1937:  Protection  by  Vessels  of  War;  Naval  Protection  during 
Strained  Relations;  et  al.  (George  G.  Wilson  ed.,  1939)  (Vol.  37,  US  Naval  War  College  Interna- 
tional Law  Situations). 

VOL  36 
INTERNATIONAL  Law  SITUATIONS  1936:  Insurrection,  Belligerency,  Statehood;  Visit  by  and  In- 
ternment of  Aircraft;  etal.  (George  G.  Wilson  ed.,  1937)  (Vol.  36,  US  Naval  War  College  Interna- 
tional Law  Situations). 


xiv 


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VOL  35 
INTERNATIONAL  LAW  SITUATIONS  1 935:  Vessels  and  Neutral  Ports;  Action  during  Civil  Strife;  et  al. 
(George  G.  Wilson  ed.,  1936)  (Vol.  35,  US  Naval  War  College  International  Law  Situations). 

VOL  34 
INTERNATIONAL  LAW  SITUATIONS  1934:  Transfer  and  Capture;  Interference  with  Ships;  et  al. 
(George  G.  Wilson  ed.,  1936)  (Vol.  34,  US  Naval  War  College  International  Law  Situations). 

VOL  33 
INTERNATIONAL  LAW  SITUATIONS  1933:  Contraband  and  Blockade;  Independent  Philippine  Is- 
lands; et  al  (George  G.  Wilson  ed.,  1934)  (Vol.  33,  US  Naval  War  College  International  Law 
Situations). 

VOL  32 
INTERNATIONAL  LAW  SITUATIONS  1932:  Belligerents  in  Neutral  Waters;  Artificial  Structures  and 
Maritime  Jurisdiction;  etal.  (George  G.  Wilson  ed.,  1934)  (Vol.  32,  US  Naval  War  College  Inter- 
national Law  Situations). 

VOL  31 
INTERNATIONAL  LAW  SITUATIONS  1931:  Neutrality  and  Aircraft;  Neutrality  and  Territorial  Wa- 
ters; Belligerency  and  Maritime  Jurisdiction  (George  G.  Wilson  ed.,  1932)  (Vol.  31,  US  Naval  War 
College  International  Law  Situations). 

VOL  30 
INTERNATIONAL  LAW  SITUATIONS  1930:  London  Naval  Treaty;  Absence  of  Local  Authority;  Bellig- 
erent Aircraft;  et  al.  (George  G.  Wilson  ed.,  1931)  (Vol.  30,  US  Naval  War  College  International 
Law  Situations). 

VOL  29 
INTERNATIONAL  LAW  SITUATIONS  1929:  Neutrality  and  Vessels;  Status  of  Islands  in  Pacific  Ocean; 
Neutral  Obligations  (George  G.  Wilson  ed.,  1931)  (Vol.  29,  US  Naval  War  College  International 
Law  Situations). 

VOL  28 
INTERNATIONAL  LAW  SITUATIONS  1928:  Maritime  Jurisdiction;  Carriage  of  Mail  in  Time  of  War; 
Enemy  Persons  on  Neutral  Vessels  (George  G.  Wilson  ed.,  1929)  (Vol.  28,  US  Naval  War  College 
International  Law  Situations). 

VOL  27 
INTERNATIONAL  LAW  SITUATIONS  1927:  Goods  on  Neutral  Merchant  Vessels;  Visit  and  Search; 
Armed  Merchant  Vessels  (George  G.  Wilson  ed.,  1929)  (Vol.  27,  US  Naval  War  College  Interna- 
tional Law  Situations). 

VOL  26 
INTERNATIONAL  LAW  SITUATIONS  1926:  Continuous  Voyage;  Submarines;  Angary;  Aircraft  in 
Neutral  Ports  (George  G.  Wilson  ed.,  1928)  (Vol.  26,  US  Naval  War  College  International  Law 
Situations). 

VOL  25 
INTERNATIONAL  LAW  DOCUMENTS  1925:  REGULATION  OF  MARITIME  WARFARE  (George  G. 
Wilson  ed.,  1926)  (Vol.  25,  US  Naval  War  College  International  Law  Documents). 

VOL  24 
International  Law  Documents  1924:  International  Agreements  {Five  Power  Limitation 
of  Naval  Armament;  Nicaraguan  Canal  Route;  Danish  West  Indies;  etal.)  (George  G.  Wilson  ed., 
1926)  (Vol.  24,  US  Naval  War  College  International  Law  Documents). 


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VOL  23 
INTERNATIONAL  LAW  DECISIONS  1923:  Vessels  (TheHaelen,  etc.);  Armed  Vessels  (Submarine  El 4, 
etc.);  Search  in  Port  (The  Bernisse,  etc.);  etal.  (George  G.  Wilson  ed.,  1925)  (Vol.  23,  US  Naval  War 
College  International  Law  Decisions). 

VOL  22 
INTERNATIONAL  LAW  DECISIONS  1922:  The  Berlin;  The  Miramichi;  The  Maria;  etal.  (George  G. 
Wilson  ed.,  1924)  (Vol.  22,  US  Naval  War  College  International  Law  Decisions). 

VOL  21 
INTERNATIONAL  LAW  DOCUMENTS  1921:  CONFERENCE  ON  THE  LIMITATION  OF  ARMAMENT 
(George  G.  Wilson  ed.,  1923)  (Vol.  21,  US  Naval  War  College  International  Law  Documents). 

VOL  20 

International  Law  Documents  1920:  The  Treaties  of  Peace  with  Austria  and  with 
Hungary  and  Protocols  and  Declarations  annexed  Thereto  (George  G.  Wilson  ed., 
1922)  (Vol.  20,  US  Naval  War  College  International  Law  Documents). 

VOL  19 
International  Law  Documents  1919:  The  Treaty  of  Peace  with  Germany  (George  G. 
Wilson  ed.,  1920)  (Vol.  19,  US  Naval  War  College  International  Law  Documents). 

VOL  18 
INTERNATIONAL   LAW   DOCUMENTS    1918:    NEUTRALITY,   CONDUCT  AND   CONCLUSION   OF 
HOSTILITIES  (George  G.  Wilson  ed.,  1919)  (Vol.  18,  US  Naval  War  College  International  Law 
Documents). 

VOL  17 
INTERNATIONAL  LAW  DOCUMENTS  1917:  NEUTRALITY;  BREAKING  OF  DIPLOMATIC  RELATIONS; 
WAR  (George  G.  Wilson  ed.,   1918)  (Vol.   17,  US  Naval  War  College  International  Law 
Documents). 

VOL  16 

International  Law  Topics  1916:  Neutrality  Proclamations  and  Regulations  (George 
G.  Wilson  ed.,  1917)  (Vol.  16,  US  Naval  War  College  International  Law  Topics). 

VOL  15 

International  Law  Topics  1915:  Documents  on  Neutrality  and  War  (George  G.  Wilson 
ed.,  1916)  (Vol.  15,  US  Naval  War  College  International  Law  Topics). 

VOL  14 

INTERNATIONAL  LAW  TOPICS  AND  DISCUSSIONS  19 14:  Classification  of  Public  Vessels;  Regulations 
Relating  to  Foreign  Ships  of  War  in  Waters  under  the  Jurisdiction  of  the  United  States;  et  al.  (George 
G.  Wilson  ed.,  1915)  (Vol.  14,  US  Naval  War  College  International  Law  Topics  and  Discussions). 

VOL  13 

INTERNATIONAL  Law  TOPICS  AND  DISCUSSIONS  19 13:  Marginal  Sea  and  Other  Waters;  Com- 
mencement of  Hostilities;  Limitation  of  Armaments;  etal.  (George  G.  Wilson  ed.,  1914)  (Vol.  13, 
US  Naval  War  College  International  Law  Topics  and  Discussions). 

VOL  12 

INTERNATIONAL  Law  SITUATIONS  1912:  Merchant  Vessels  and  Insurgents;  Air  Craft  in  War;  Cuba 
Neutral;  etal  (George  G.  Wilson  ed.,  1912)  (Vol.  12,  US  Naval  War  College  International  Law 
Situations). 


XVI 


Blue  Books 


VOL  11 

INTERNATIONAL  LAW  SITUATIONS  1911:  Asylum  in  Neutral  Port;  Protection  to  Neutral  Vessels; 
Destruction  of  Neutral  Vessels;  etal.  (George  G.  Wilson  ed.,  191 1)  (Vol.  1 1,  US  Naval  War  College 
International  Law  Situations). 

VOL  10 

INTERNATIONAL  LAW  SITUATIONS  1910:  Coaling  within  Neutral  Jurisdiction;  Declaration  of  War; 
Days  of  Grace;  et  al.  (George  G.  Wilson  ed.,  1911)  (Vol.  10,  US  Naval  War  College  International 
Law  Situations). 

VOL  9 

International  Law  Topics  1909:  The  Declaration  of  London  of  February  26,  1909 
(George  G.  Wilson  ed.,  1910)  (Vol.  9,  US  Naval  War  College  International  Law  Topics). 

VOL  8 
INTERNATIONAL  LAW  SITUATIONS  1908:  Termination  of  Liability  for  Breach  of  Blockade;  The 
Twenty- Four  Hour  Rule;  Sequestration  of  Prize;  etal  (George  G.  Wilson  ed.,  1909)  (Vol.  8,  US  Na- 
val War  College  International  Law  Situations). 

VOL  7 
INTERNATIONAL  LAW  SITUATIONS  1907:  Fugitive  from  Cuban  Justice  at  Guantanamo;  Status  of 
United  States  Auxiliary  Collier  in  Foreign  Harbor;  etal.  (George  G.  Wilson  ed.,  1908)  (Vol.  7,  US 
Naval  War  College  International  Law  Situations). 

VOL  6 
International  Law  Topics  and  Discussions  1906:  Use  of  False  Colors;  Transfer  of  Flag  of 
Merchant  Vessels  during  or  in  Anticipation  of  War;  etal.  (George  G.  Wilson  ed.,  1907)  (Vol.  6,  US 
Naval  War  College  International  Law  Topics  and  Discussions). 

VOL  5 

INTERNATIONAL  LAW  TOPICS  AND  DISCUSSIONS  1905:  Inviolability  of  Private  Property  at  Sea; 
Contraband  of  War;  Restriction  of  Visit  and  Search;  etal.  (George  G.  Wilson  ed.,  1906)  (Vol.  5,  US 
Naval  War  College  International  Law  Topics  and  Discussions). 

VOL  4 
INTERNATIONAL  Law  SITUATIONS  1904:  Merchant  Vessels  Adapted  for  Conversion  into  Auxiliary 
Cruisers;  Rights  of  Foreigner  under  Martial  Law;  Asylum  for  Insurgent  Troops  on  War  Vessel;  et  al. 
(George  G.  Wilson  ed.,  1905)  (Vol.  4,  US  Naval  War  College  International  Law  Situations). 

VOL  3 

INTERNATIONAL  LAW  DISCUSSIONS  1903:  THE  UNITED  STATES  NAVAL  WAR  CODE  OF  1900 
(George  G.  Wilson  ed.,  1904)  (Vol.  3,  US  Naval  War  College  International  Law  Discussions). 

VOL  2 

INTERNATIONAL  Law  SITUATIONS  1902:  Submarine  Telegraphic  Cables  in  Time  of  War;  Asylum 
on  Ships  of  War;  Waters  of  Leased  Territory;  etal.  (George  G.  Wilson  ed.,  1903)  (Vol.  2,  US  Naval 
War  College  International  Law  Situations). 

VOL1 
INTERNATIONAL  LAW  SITUATIONS  1901:  Coast  Warfare;  Contraband;  Transportation  of  Military 
Persons;  et  al.  (John  B.  Moore  ed.,  1901)  (Vol.  1,  US  Naval  War  College  International  Law 
Situations). 


xvn 


Foreword 


From  June  25  to  27, 2008,  the  Naval  War  College  had  the  honor  to  convene  an 
International  Law  Expert's  Workshop,  "The  War  in  Afghanistan  -  A  Legal 
Analysis."  This  volume  captures  the  legal  lessons  of  the  war  in  Afghanistan  as  re- 
ported, studied  and  debated  by  a  rare  gathering  of  eminent  scholars  and  practitio- 
ners of  international  law. 

The  workshop's  mission  was  to  provide  a  comprehensive  legal  examination  of 
the  Afghan  conflict — from  the  decision  to  use  force,  to  the  manner  with  which 
force  was  employed,  to  the  legal  construct  for  the  evolution  of  military  operations 
transitioning  away  from  the  use  of  force.  Renowned  international  academics  and 
legal  advisers,  both  military  and  civilian,  representing  military,  diplomatic,  non- 
governmental and  academic  institutions  from  throughout  the  world  contributed 
to  the  workshop  and  this  volume. 

The  historic  International  Law  Studies  "Blue  Book"  series  was  initiated  by  the  Na- 
val War  College  in  1901  to  publish  essays,  treatises  and  articles  that  contribute  to  the 
broader  understanding  of  international  law.  Dedicated  to  the  memory  of  professor, 
US  Army  colonel  and  esteemed  friend  of  the  College  Howard  S.  Levie,  this  eighty- 
fifth  entry  in  the  series  stands  as  a  proud  exemplar  of  that  tradition.  Readers  and  re- 
searchers will  find  herein  a  meticulous  study  of  the  Afghanistan  conflict,  as  well  as  its 
profound  implications  for  the  future  of  international  law  and  military  operations. 

The  workshop  and  this  "Blue  Book"  were  made  possible  with  generous  support 
from  the  Naval  War  College  Foundation  and  the  Israel  Yearbook  on  Human  Rights. 
The  International  Law  Department  of  the  Center  for  Naval  Warfare  Studies,  Naval 
War  College,  hosted  the  workshop. 

On  behalf  of  the  Secretary  of  the  Navy,  the  Chief  of  Naval  Operations  and  the 
Commandant  of  the  Marine  Corps,  I  extend  our  thanks  and  gratitude  to  all  the  par- 
ticipants, contributing  authors  and  supporters.  Your  invaluable  contributions  to  this 
project  and  to  the  better  understanding  of  the  complex  legal  issues  involved  have 
prepared  us  to  better  meet  and  respond  to  future  global  operational  challenges. 


JAMES  P.  WISECUP 
Rear  Admiral,  U.S.  Navy 
President,  Naval  War  College 


Introduction 


On  October  7,  2001  the  United  States  commenced  Operation  Enduring 
Freedom,  striking  terrorist  training  camps  and  infrastructure  in  Afghani- 
stan to  dismantle  the  threat  posed  by  Al  Qaeda  and  its  supporters.  Over  the  ensuing 
seven  years,  the  United  States,  NATO  allies  and  coalition  partners  saw  the  evolu- 
tion of  the  Afghan  conflict  reveal  not  only  an  entirely  new  paradigm  of  warfare,  but 
a  test  of  the  very  structure  and  ability  of  international  law  to  regulate  armed  con- 
flicts in  the  new  millennium. 

Since  its  founding  in  1884,  the  US  Naval  War  College  has  pioneered  the  study 
and  teaching  of  the  law  impacting  military  operations.  For  three  days  in  June  2008 
the  College  convened  a  unique  colloquium  of  experts  to  take  another  leap  forward 
in  the  development  and  understanding  of  international  law.  The  workshop,  "The 
War  in  Afghanistan — A  Legal  Analysis,"  drew  together  fifty  of  the  world's  most 
distinguished  academics  and  elite  practitioners  of  international  law  to  provide  a 
comprehensive  debate  and  explication  of  the  conflict.  Panelists  and  participants 
engaged  in  thorough  discussions  germane  to  both  the  Afghan  war  and  future  mili- 
tary operations  involving  the  legal  basis  for  the  conflict,  the  law  governing  the  con- 
duct of  hostilities  and  the  emerging  legal  framework  to  transition  from  hostilities 
to  a  stable  peace. 

This  edition  of  the  Naval  War  College's  internationally  acclaimed  International 
Law  Studies  ("Blue  Book")  series  captures  the  insights  and  lessons  shared  by  the 
workshop  participants.  Employing  the  Naval  War  College's  Decision  Support 
Center  resources,  panelists  were  able  to  access  participant  notes  from  their  presen- 
tations, augmenting  and  strengthening  their  own  written  work.  The  fruits  of  these 
discussions  are  contained  in  the  eminent  scholarship  found  in  this  volume. 

The  workshop  was  organized  by  Major  Michael  D.  Carsten,  US  Marine  Corps, 
of  the  International  Law  Department,  assisted  by  Ms.  Heidi  Eldridge  and  Mrs. 
Jayne  Van  Petten.  The  workshop  was  made  possible  through  the  support  of  the  Na- 
val War  College  Foundation  and  the  Israel  Yearbook  on  Human  Rights.  Without  the 
dedicated  efforts  and  support  of  these  individuals  and  organizations,  the  workshop 
would  not  have  taken  place. 

I  give  thanks  to  Marshall  Center  Dean  Michael  N.  Schmitt,  the  2008-09 
Stockton  Professor  of  International  Law,  for  serving  as  the  editor  of  this  volume, 
and  to  Jack  Grunawalt  and  Captain  Ralph  Thomas,  JAGC,  US  Navy  (Ret.),  who 
undertook  the  lion's  share  of  the  editing  process  with  the  assistance  of  Captain 


Robert  Huard,  JAGC,  US  Navy  Reserve  (Ret.),  and  the  staff  of  the  College's  Desk- 
top Publishing  Department.  I  also  extend  thanks  to  Captain  Charles  T.  Passaglia, 
JAGC,  US  Navy  Reserve,  Commanding  Officer,  NR  Naval  War  College  (Law) — 
the  reserve  unit  assigned  to  the  International  Law  Department.  His  willingness  to 
assist,  often  at  a  moment's  notice,  made  this  publication  possible.  Although  I  am 
grateful  to  all  the  officers  of  the  reserve  unit,  a  special  note  of  thanks  goes  to  Com- 
mander Eric  M.  Hurt,  JAGC,  US  Navy  Reserve,  for  his  work  in  preparing  the  in- 
dex. This  publication  is  a  testament  to  their  tireless  efforts  and  devotion  to  the 
Naval  War  College  and  to  the  International  Law  Studies  series. 

Special  thanks  go  to  Rear  Admirals  Jacob  Shuford  and  Philip  Wisecup,  past  and 
current  Presidents  of  the  Naval  War  College,  and  Professor  Barney  Rubel,  Dean  of 
the  Center  for  Naval  Warfare  Studies,  for  their  leadership  and  support  in  the  plan- 
ning and  conduct  of  the  workshop,  and  the  publication  of  this  volume. 

The  International  Law  Studies  series  is  published  by  the  Naval  War  College  and 
distributed  worldwide  to  US  and  international  military  organizations,  academic 
institutions  and  libraries.  This  year  we  have  added  a  catalog  of  all  previous  "Blue 
Books"  right  after  the  table  of  contents  to  facilitate  research.  Volumes  59-85  of  the 
International  Law  Studies  series  are  available  electronically  at  http://www.usnwc 
.edu/cnws/ild/ild.aspx.  This  "Blue  Book,"  like  its  predecessors,  exhibits  the  Naval 
War  College's  long-standing  dedication  to  the  scholarly  discourse  and  understand- 
ing of  legal  issues  at  the  strategic,  operational  and  tactical  levels. 

Finally,  and  most  importantly,  we  once  again  thank  our  friend  and  mentor  Pro- 
fessor Howard  Levie,  to  whom  this  volume  is  dedicated,  for  his  many  enduring 
contributions  to  the  Naval  War  College. 


DENNIS  L.  MANDSAGER 
Professor  of  Law  &  Chairman 
International  Law  Department 


xxn 


Preface 


It  has  become  fashionable  in  law  of  armed  conflict  (LOAC)  circles  to  claim  that 
whatever  "war"  one  is  considering,  it  is  a  new  form  of  conflict,  one  that  chal- 
lenges existing  LOAC  norms,  uncovers  lacunae  in  the  law  or  reveals  where  extant 
norms  have  fallen  into  desuetude.  Hybrid  warfare,  three-block  war,  postmodern 
war,  asymmetrical  war,  the  global  war  on  terrorism — all  have  their  proponents  and 
detractors,  the  latter  claiming,  often  accurately,  that  the  packaging  of  the  conflict  as 
this  or  that  form  of  warfare  is  nothing  more  than  old  wine  in  new  bottles.  The  dis- 
covery of  new  forms  of  warfare  has  become  a  cottage  industry,  one  that  is  equally 
fascinating  . . .  and  distracting. 

Such  is  the  case  with  the  war  in  Afghanistan  and  its  attendant  relationship  with 
transnational  terrorism,  thrust  into  the  global  spotlight  by  the  al  Qaeda  attacks  of 
September  11,  2001  against  the  United  States.  Indeed,  the  conflict  does  exhibit 
seemingly  new  features.  Among  these,  the  nexus  with  transnational  counter- 
terrorism  is  perhaps  most  prominent.  The  nexus  has  perplexed  international  law 
practitioners  and  scholars  considering  such  matters  as  the  juridical  character  of  the 
conflict,  the  status  of  its  participants  and  the  existence  (or  the  lack  thereof)  of 
belligerent  occupation.  Other  unique  normative  issues  are  raised  by  the  complex 
matrix  of  forces  found  in  Afghanistan — the  Taliban,  armed  opposition  groups 
such  as  the  Northern  Alliance,  transnational  terrorists,  the  US-led  coalition  com- 
prising Operation  Enduring  Freedom,  Pakistani  security  forces  operating  in  the 
tribal  areas  and  NATO,  participating  as  the  UN-sanctioned  International  Security 
Assistance  Force  (ISAF).  Further,  the  conflict  has  generated  vibrant  doctrinal  de- 
bates over,  inter  alia,  counterinsurgency,  counterterrorism  and  stability  opera- 
tions, which  have  thus  far  been  somewhat  starved  for  serious  analysis  by  the 
broader  international  legal  community. 

This  book  attempts  to  begin  painting  the  normative  backdrop  to  the  conflict.  To 
do  so,  the  Naval  War  College's  International  Law  Department  brought  together  a 
select  group  of  international  scholars  and  practitioners  who  have  either  particular 
expertise  in  the  issues  it  raises  or  experience  in  providing  legal  advice  to  those  re- 
sponsible for  conducting  operations.  This  combination  created  a  particularly  fer- 
tile environment  in  which  to  deconstruct  and  analyze  the  events  of  the  past  seven 
years  from  both  a  practical  and  scholarly  perspective.  The  chapters  that  follow  are 
the  product  of  that  sophisticated  dialogue. 


Preface 

Part  I  sketches  the  conflict  and  its  legal  issues  in  the  broad  sense.  Professor  Sir 
Adam  Roberts  explores  Afghanistan  in  the  context  of  international  security.  In 
particular,  he  addresses  challenges  posed  by  fitting  Western  military  doctrines, 
practices  and  institutions  to  Afghan  realities.  Professor  Roberts  concludes  with  a 
discussion  of  actual  and  possible  future  effects  of  the  war  on  international  security, 
including  that  on  the  United  Nations  and  NATO,  and  offers  a  summary  of 
potential  responsive  policy  choices. 

Professor  Yoram  Dinstein  addresses  terrorism  in  the  context  of  the  conflict.  He 
distinguishes  terrorism  that  is  purely  internal  from  that  launched  from  a  foreign 
country  and  perhaps  warranting  action  in  or  against  that  foreign  country.  Of  par- 
ticular note,  he  deals  with  the  issue  of  attacks  by  non-State  actors  and  the  question, 
seemingly  settled  in  the  aftermath  of  the  attacks  of  9/1 1  but  thrust  into  controversy 
by  the  International  Court  of  Justice's  Wall  Advisory  Opinion,  of  whether  they 
constitute  "armed  attacks"  under  Article  51  of  the  UN  Charter.  Professor  Dinstein 
focuses  on  action  against  terrorists  within  a  foreign  country.  He  deals  with  action 
taken  with  the  consent  of  that  State,  with  action  taken  against  the  State  itself  and 
with  the  timely  issue  of  "extraterritorial  law  enforcement."  Also  of  particular  note 
is  his  conclusion  that  the  inter-State  war  that  began  on  October  7,  2001  continues 
unabated. 

Part  I  concludes  with  a  contribution  by  Professor  Michael  Reisman  which  con- 
siders the  relationship  between  the  missions  assigned  by  the  political  branches  of 
government  and  international  law.  He  suggests  that  the  feasibility  of  such  missions 
and  the  costs  to  the  nation  in  terms  of  life  and  treasure  will  be  affected  by  the  degree 
of  their  compliance  with  the  requirements  of  international  law.  Thus,  Professor 
Reisman  argues,  international  law  is  directly  relevant  to  the  design  of  such  mis- 
sions, suggesting  that  a  "less-is-more"  approach  may  be  merited  when  interna- 
tional expectations  of  lawfulness  appear  unlikely  to  support  broader  missions. 

Part  II  addresses  the  legal  basis  for  the  military  operations  that  have  been  con- 
ducted. Professor  John  Murphy  argues  that  many  of  the  issues  raised  with  regard  to 
Afghanistan  constitute  major  challenges  to  international  law  and  international  in- 
stitutions. They  will  require  the  United  States  and  other  members  of  the  world 
community  to  make  hard  choices  that  will  alter  the  future  of  international  law.  In 
support  of  his  thesis,  he  examines  the  jus  ad  helium,  jus  in  hello,  governance,  the 
roles  of  the  United  Nations  and  NATO,  problems  created  by  the  use  of  the  tribal  ar- 
eas in  Pakistan  as  a  safe  haven  by  the  Taliban  and  al  Qaeda,  and  the  impact  of  Af- 
ghanistan on  the  current  unstable  political  situation  in  Pakistan. 

An  examination  of  the  international  legality  of  US  cross-border  operations 
from  Afghanistan  into  Pakistan  by  Professor  Sean  Murphy  follows.  He  assesses 
their  consistency  with  the  jus  ad  helium  norms  enshrined  in  Articles  2(4)  and  51  of 


xxiv 


Michael  N.  Schmitt 


the  UN  Charter,  an  issue  of  relevance  not  only  to  events  in  that  region,  but  to  anal- 
ogous operations  elsewhere,  for  instance  the  Turkish  operations  in  northern  Iraq 
and  Colombia's  forays  into  Ecuador.  According  to  Professor  Murphy,  self-defense 
provides  a  basis  for  those  operations  that  respond  to  raids  by  militants  from  Paki- 
stan into  Afghanistan,  so  long  as  the  US  operations  remain  necessary  and  propor- 
tionate and  the  Afghan  government  consents  to  the  presence  of  US  forces. 
However,  a  broader  right  of  self-defense  against  al  Qaeda  targets  in  Pakistan  based 
on  the  attacks  of  9/1 1  is,  for  Professor  Murphy,  far  more  problematic. 

Part  II  concludes  with  a  discussion  by  Commander  Alan  Cole  of  the  Royal  Navy 
as  to  the  legal  issues  surrounding  the  formation  of  the  ad  hoc  coalition  established 
to  conduct  operations  in  Afghanistan.  He  distinguishes  the  coalition  created  for 
Operation  Enduring  Freedom  from  the  NATO-led  ISAF.  Commander  Cole  con- 
cludes that  operating  two  separate  missions  at  two  different  tempos  in  the  same 
country  in  an  attempt  to  suppress  the  same  enemy  is  a  recipe  for  a  conflict  of  laws. 
Nevertheless,  he  also  concludes  that  the  countries  that  contribute  to  the  missions 
have  accommodated  their  legal  differences  in  pursuit  of  mission  success. 

In  Part  III,  attention  turns  to  jus  in  hello  conduct  of  hostilities  issues.  Professor 
Charles  Garraway  begins  by  analyzing  the  character  of  the  conflict,  asking  whether 
the  situation  in  Afghanistan,  considered  in  the  wider  context  of  the  war  on  terror, 
constituted  a  new  paradigm  which  removed  it  from  the  extant  law  of  war  or 
whether  it  was  a  mutation  of  an  existing  normative  structure  capable  of  accommo- 
dation within  the  current  legal  framework.  He  discusses  the  positions  of  the  vari- 
ous US  agencies  in  their  attempts  to  fashion  a  coherent  policy  for  the  United  States, 
pointing  out  that  adoption  of  the  State  Department  approach  might  have  nar- 
rowed discussion  to  combatancy,  thereby  avoiding  much  of  the  controversy  that 
ensued  on  the  characterization  issue. 

Professor  Geoffrey  Corn  also  tackles  the  characterization  of  conflict  issue,  not- 
ing that  characterization  is  an  essential  first  step  in  determining  the  norms  that 
govern  a  conflict.  He  notes  the  difficulty  of  applying  the  traditional  categories  of  ei- 
ther international  or  non-international  armed  conflict.  Professor  Corn  considers 
and  develops  a  possible  third  category  to  address  the  situation  of  extraterritorial 
military  operations  conducted  by  States  against  non-State  actors,  one  he  labels 
"transnational  armed  conflicts." 

Three  pieces  addressing  traditional  law  of  war  issues  follow.  Professor  Gary  Solis 
surveys  various  LOAC  issues  encountered  during  US  ground  combat  in  Afghani- 
stan. He  focuses  on  those  that  recurrently  surfaced  during  the  conference — status 
of  the  conflict,  status  of  actors,  detention,  targeted  killings,  Guantanamo  and  war 
crimes  prosecution. 


xxv 


Preface 

Mr.  W.  Hays  Parks  of  the  Office  of  the  General  Counsel  at  the  US  Department  of 
Defense  takes  on  the  issue  of  combatants,  surely  one  of  the  most  controversial  em- 
anating from  the  conflict.  He  analyzes  the  Taliban's  status  as  a  government  and  the 
combatant  status  of  Taliban  and  al  Qaeda  fighters,  explores  the  US  administra- 
tion's legal  rationale  for  denial  of  prisoner  of  war  status  to  captured  al  Qaeda  and 
Taliban  personnel,  and  considers  the  law  of  war  issue  of  special  operations  forces' 
wear  of  indigenous  attire.  Mr.  Parks  concludes  with  an  evaluation  of  the 
administration's  findings  on  these  issues. 

Professor  Michael  Schmitt's  contribution  identifies  and  analyzes  targeting  is- 
sues during  the  conflict.  He  examines  practices,  with  particular  emphasis  on  coun- 
terinsurgency  doctrine,  concluding  that  the  policy  restrictions  necessary  to 
conduct  such  operations  effectively  greatly  exceed  those  required  by  the  law  of 
armed  conflict. 

Part  IV  looks  at  detention  operations  during  the  conflict.  Professor  Matthew 
Waxman  dissects  three  issues — the  minimum  baseline  treatment  standards  re- 
quired as  a  matter  of  international  law,  the  adjudicative  processes  international  law 
requires  for  determining  who  may  be  detained  and  how  foreign  military  forces  op- 
erating in  a  counterinsurgency  transition  detention  operations  to  effective  civilian 
institutions.  He  also  thoughtfully  presents  reflective  observations  regarding  the 
convergence  of  law  and  strategy. 

Mr.  Stephane  Ojeda  of  the  International  Committee  of  the  Red  Cross  surveys 
the  law  applicable  to  detention  during  armed  conflict  before  turning  to  the  specific 
issue  of  the  detention  of  Taliban  fighters.  He  distinguishes  detention  during  the 
period  before  the  establishment  of  the  Afghan  transitional  government  in  June 
2002  from  that  occurring  thereafter.  His  analysis  is  premised  on  the  existence  of  an 
international  armed  conflict  before  June  2002  and  a  non-international  armed  con- 
flict thereafter.  Mr.  Ojeda  concludes  by  suggesting  that  international  humanitarian 
law,  properly  implemented,  adequately  addresses  the  various  situations  present 
during  the  conflict  vis-a-vis  detention. 

Professor  Ryan  Goodman  next  delves  into  the  rationales  suggested  for  deten- 
tion during  the  conflict,  focusing  on  security  threats  and  intelligence  value.  He  be- 
gins by  affirming  the  applicability  of  the  law  of  armed  conflict  to  non-international 
armed  conflicts.  Professor  Goodman  then  turns  to  two  central  questions:  ( 1 )  is  it 
lawful  to  detain  civilians  who  have  not  directly  participated  in  hostilities  and  (2)  is 
it  lawful  to  detain  individuals  for  a  long  or  indefinite  period  for  the  purpose  of 
gathering  intelligence?  As  to  the  first,  he  notes  that  the  law  of  armed  conflict  allows 
such  detentions  in  appropriate  circumstances,  but  cautions  that  US  law  may  im- 
pose additional  requirements.  Regarding  the  second,  he  rejects  the  premise  that 


xxvi 


Michael  N.  Schmitt 


individuals  may  be  detained  for  long  or  indefinite  periods  solely  for  the  purpose  of 
gathering  intelligence. 

The  final  operational  practice  examined  during  the  conference,  stability  opera- 
tions, is  addressed  in  Part  V.  Mr.  David  Turns  of  the  UK  Defence  Academy  opens 
by  surveying  the  place  of  stability  operations  within  international  law,  specifically 
the  jus  ad  bellum  and  the  jus  in  bello,  and,  within  the  latter,  the  law  applicable  in  in- 
ternational and  non-international  armed  conflicts.  He  discusses  application  of  the 
law  of  armed  conflict  to  stability  operations,  including  such  issues  as  the  status, 
treatment  and  targeting  of  insurgents.  Mr.  Turns  pays  particular  attention  to  UK 
practices  and  policies. 

Brigadier  General  Kenneth  Watkin  of  the  Canadian  Forces  offers  a  second  coali- 
tion perspective,  although  his  contribution  is  widely  applicable  to  any  forces  en- 
gaged in  such  operations.  He  starts  by  outlining  the  definition,  scope  and  purpose 
of  stability  operations,  asking  whether  such  operations  are  "new"  or  simply  a 
catch-all  category  for  a  variety  of  missions  that  have  already  challenged  doctrine 
writers  and  lawyers.  General  Watkin  next  tackles  operations  at  the  lower  end  of  the 
spectrum  of  conflict  in  an  effort  to  ascertain  the  degree  to  which  international  law 
has  adapted  to  them.  He  continues  by  considering  stability  operations  in  the  con- 
text of  a  coalition  environment.  General  Watkin  concludes  by  reflecting  on  the 
American  doctrinal  approach  to  "war  amongst  the  people." 

Professor  Marco  Sassoli  offers  a  comprehensive  analysis  of  the  international 
legal  framework  for  stability  operations,  specifically  addressing  the  issue  of  when 
international  forces  can  conduct  attacks  or  detain  individuals  in  these  operations. 
He  usefully  addresses  these  matters  in  the  context  of  both  the  LOAC  and  interna- 
tional human  rights  law,  examining  which  prevails  in  the  event  they  lead  to  dif- 
ferent results.  For  Professor  Sassoli,  the  answer  to  the  question  is  tied  to  the 
specific  circumstances  attendant  to  a  particular  situation  in  which  these  laws 
apply. 

Finally,  the  focus  on  stability  operations  narrows  as  Lieutenant  Colonel  Eric 
Jensen  of  the  US  Army  and  Ms.  Amy  Pomeroy  describe  and  discuss  US  Army  rule 
of  law  operations.  They  highlight  three  lessons  learned:  ( 1 )  the  need  to  integrate 
rule  of  law  operations  into  all  phases  and  aspects  of  military  operations;  (2)  the 
need  to  coordinate  and  synchronize  the  rule  of  law  efforts  of  various  actors,  in- 
cluding the  host  nation;  and  (3)  the  need  for  rule  of  law  operations  to  be  effects- 
based. 

The  book  concludes  in  Part  VI  by  focusing  on  a  topic  of  particular  importance 
in  operations  such  as  those  conducted  in  Afghanistan — human  rights  law.  Profes- 
sor Hampson  begins  consideration  of  the  topic  by  asking  whether  human  rights 
law  is  of  any  relevance  to  operations  in  Afghanistan.  She  analyzes  five  key  issues: 


xxvn 


Preface 

( 1 )  whether  human  rights  law  remains  applicable  when  the  law  of  armed  conflict 
applies,  (2)  whether  human  rights  law  obligations  apply  extraterritorially,  (3)  the 
impact  of  the  territorial  State's  human  rights  obligations  for  other  States  assisting 
it,  (4)  the  effect  of  a  Security  Council  mandate  on  legal  obligations  that  would  oth- 
erwise be  applicable,  and  (5)  whether  human  rights  notions  offer  useful  guidance 
to  armed  forces,  whether  or  not  human  rights  law  is  applicable  de  jure. 

The  final  chapter  of  the  book,  by  Mr.  Stephen  Pomper  of  the  US  State  Depart- 
ment, examines  the  US  government's  approach  to  human  rights  obligations  dur- 
ing the  conflict  in  Afghanistan,  pointing  to  issues  with  which  the  new 
administration  will  have  to  grapple.  The  Bush  administration  took  the  view  that 
the  law  of  war  did  not  provide  an  adequate  framework  for  addressing  those  legal  is- 
sues that  arise  during  a  conflict  with  a  non-State  group,  but  argued  that  legal  and 
policy  considerations  weighed  against  filling  the  lacunae  by  resort  to  human  rights 
law.  He  explores  the  topic  by  looking  to,  inter  alia,  the  argumentation  of  the  Bush 
administration,  including  that  bearing  on  International  Court  of  Justice  opinions 
and  other  case  law,  as  well  as  Canadian  litigation.  Mr.  Pomper  suggests  that  the 
Obama  administration  would  be  well  served  by  considering  this  history  in 
fashioning  its  own  approach  to  the  subject. 

As  the  book  was  being  finalized,  the  international  law  community  was  saddened  to 
learn  that  one  of  its  giants,  Professor  Howard  Levie,  had  passed  away  at  the  age  of 
101.  Professor  Levie  had  a  long  and  distinguished  service  as  a  judge  advocate  in  the 
US  Army,  including  acting  as  a  key  drafter  of  the  Korean  War  Armistice  Agree- 
ment, before  becoming  a  renowned  academic  at  Saint  Louis  University.  He  served 
as  the  Charles  H.  Stockton  Professor  at  the  Naval  War  College  in  1971-72  and  re- 
mained active  as  a  frequent  lecturer  at  the  College  following  his  retirement  as  Pro- 
fessor Emeritus  from  Saint  Louis  and  his  move  to  Newport,  Rhode  Island.  Over  the 
decades,  Professor  Levie  mentored  many  young  judge  advocates  and  scholars;  it 
was  my  honor  to  be  among  them. 

In  1998,  the  Naval  War  College  published  Levie  on  the  Law  of  War  to  honor  Pro- 
fessor Levie  and  to  recognize  the  enormous  impact  of  his  writings  on  the  law  appli- 
cable during  armed  conflict.  In  the  book's  Foreword,  Professor  Emeritus  Richard  J. 
Grunawalt,  the  current  Stockton  Professor  and  former  head  of  the  Oceans  Law  and 
Policy  Department  at  the  Naval  War  College,  observed: 

Once  in  a  great  while,  someone  comes  along  who  makes  a  significant  and  lasting 
contribution  to  his  or  her  chosen  profession,  a  contribution  that  comes  to  define  the 
paradigm  of  that  calling.  With  respect  to  the  development  and  articulation  of  the  law  of 
war,  Professor  Howard  Levie  is  just  such  an  individual. 


xxvm 


Michael  N.  Schmitt 


This  book  is  dedicated  to  the  memory  of  Professor  Howard  S.  Levie — soldier, 
scholar  and  patriot.  We  shall  all  miss  him  deeply. 


MICHAEL  N.  SCHMITT 
2008-09  Charles  H.  Stockton 
Professor  of  International  Law 
United  States  Naval  War  College 


xxix 


PARTI 


THE  WAR  IN  AFGHANISTAN  IN  CONTEXT 


I 


Afghanistan  and  International  Security 


Adam  Roberts* 


Today  there  are  remarkably  few  international  wars.  This  does  not  mean  the 
end  of  war,  which  still  continues,  but  it  does  mean  that  the  type  of  war  em- 
blematic of  the  contemporary  era  is  not  classic  international  war,  but  rather  a  kind 
of  civil  war  familiar  to  students  of  colonial  history:  a  conflict  that  may  begin  largely 
within  a  society,  but  becomes  internationalized,  involving  foreign  forces  on  one  or 
both  sides.  Very  often  such  wars  begin,  and  continue,  because  the  structure  of  the 
State  is  weak:  this  fact  enables  insurgents  to  operate,  and  it  also  results  in  outside 
governments  getting  involved  in  various  ways,  not  least  in  the  attempt  to  bolster 
the  State's  credibility  and  performance.  Where  there  is  more  than  one  weak  State  in 
a  region  and  a  porous  border  area  between,  the  opportunities  for  insurgents  are 
magnified.  In  all  these  respects  the  ongoing  conflict  in  Afghanistan  is  typical  of 
wars  of  the  twenty- first  century.  Yet  it  is  also  unique,  not  only  because  it  has  dis- 
tinctive attributes,  but  also  because,  as  will  be  indicated  below,  it  has  had  extraordi- 
nary effects  on  international  relations. 

The  central  question  that  is  explored  here  is:  what  are  the  implications  of  wars  in 
Afghanistan  for  international  security,  not  only  in  the  region,  but  also  more  gener- 
ally? In  exploring  this  question  there  is  much  to  draw  upon,  not  just  from  Western 
involvement  in  Afghanistan  since  2001,  but  also  from  the  past  two  centuries  of 


*  Senior  Research  Fellow  of  the  Centre  for  International  Studies,  Department  of  Politics  and 
International  Relations,  University  of  Oxford,  and  President-elect  of  the  British  Academy.  A 
shortened  version  of  this  paper  is  Doctrine  and  Reality  in  Afghanistan,  51  SURVIVAL  29  (2009). 


Afghanistan  and  International  Security 


Afghan  history.  However,  we  cannot  foresee  exactly  how  the  present  war  will  con- 
clude. Events  that  may  determine  how  it  ends  are  by  nature  unknowable:  for  exam- 
ple, the  accuracy  or  otherwise  of  an  assassin's  bullet,  another  major  scandal  in  the 
treatment  of  prisoners,  bombings  from  the  air  resulting  in  massive  civilian  deaths, 
an  al-Qaeda  attack  that  alienates  more  than  it  mobilizes  or  the  emergence  else- 
where of  a  new  conflict  which  distracts  attention  from  Afghanistan. 

Despite  these  uncertainties,  the  central  question  can  be  approached  by  looking 
first  into  four  related  questions  about  wars  in  Afghanistan  and  their  influence  on 
international  security. 

•  What  have  been  the  effects  of  previous  wars  in  Afghanistan,  particularly  in 
the  nineteenth  century  and  in  the  Soviet  period  1979-89,  on  regional  and 
international  security? 

•  How  should  the  almost  continuous  wars  in  Afghanistan  since  1989  be 
characterized,  and  what  have  been  the  effects  of  their  Pakistani  dimension? 

•  What  have  been  the  roles  of  the  United  Nations  in  the  long-running  Afghan 
crisis,  including  its  post-2001  post-conflict  peace-building  role  and  in  assisting 
the  return  of  refugees? 

•  In  the  war  since  2001,  what  problems  have  there  been  in  fitting  Western 
military  doctrines,  practices  and  institutions  to  Afghan  realities?  What  has  been 
the  role  of  airpower?  How  has  NATO  performed  in  this  unanticipated 
commitment?  Are  counterinsurgency  (COIN)  doctrines  fit  for  the  purpose  for 
which  they  are  being  used  in  Afghanistan?  And  how  can  progress  be  judged? 

The  exploration  of  the  fourth  question,  which  forms  the  main  part  of  this  sur- 
vey, leads  to  the  concluding  discussion  of  the  actual  and  possible  future  effects  of 
the  war  on  international  security,  including  on  two  major  institutions,  the  United 
Nations  and  NATO.  Some  policy  choices  are  briefly  summarized. 

I.  Lessons  from  Afghan  Wars  up  to  1989 

Much  is  often  made  of  how  warfare  in  general  has,  or  has  not,  been  transformed. 
Perhaps  because  several  of  us  have  had  training  in  history,  in  Oxford  University's 
research  program  "The  Changing  Character  of  War"  we  attempt  to  draw  a  sharp 
distinction  between  what  is  new  and  what  merely  appears  to  be  new.  That  attempt 
is  certainly  necessary  when  considering  the  war  in  Afghanistan.  It  is  often  said  that 
modern  wars  constitute  a  "new  paradigm."  This  proposition  depends,  to  a  greater 
or  lesser  degree,  on  the  implicit  assumption  that  past  international  wars  were  a 
straightforward  matter  of  so-called  "conventional"  forces  fighting  each  other. 
They  were  not.   In  considering  what  is  unique  about  the  ongoing  war  in 


Adam  Roberts 


Afghanistan,  it  may  be  useful  to  bear  in  mind  two  parts  of  the  country's  historical 
legacy:  nineteenth-century  wars  and  the  experience  of  the  Soviet  war. 

The  Nineteenth  Century  and  After 

Many  modern  wars,  including  that  in  Afghanistan,  fit  quite  well  the  general  de- 
scription of  colonial  conflicts  offered  by  Major  C.E.  Callwell  of  the  Royal  Artillery 
in  1899  in  his  justly  famous  manual  Small  Wars.  Callwell  himself  had  served  during 
the  closing  stages  of  the  Second  Anglo -Afghan  War,  when  he  marched  through  the 
Khyber  Pass  to  join  the  Kabul  field  force.1  It  was  on  the  basis  of  experience  that  he 
wrote  two  decades  later: 

Small  wars  are  a  heritage  of  extended  empire,  a  certain  epilogue  to  encroachments  into 
lands  beyond  the  confines  of  existing  civilization,  and  this  has  been  so  from  early  ages 
to  the  present  time.  Conquerors  of  old  penetrating  into  the  unknown  encountered 
races  with  strange  and  unconventional  military  methods  and  trod  them  down,  seizing 
their  territory;  revolts  and  insurrections  followed,  disputes  and  quarrels  with  tribes  on 
the  borders  of  the  districts  overcome  supervened,  out  of  the  original  campaign  of 
conquest  sprang  further  wars,  and  all  were  vexatious,  desultory,  and  harassing.  And  the 
history  of  those  small  wars  repeats  itself  in  the  small  wars  of  to-day.2 

In  the  nineteenth  century  the  British  Army  was  involved  in  two  major  cam- 
paigns in  Afghanistan,  in  1839-42  and  1878-80.  The  first,  fought  ostensibly  to  as- 
sist a  weak  ruler  and  to  provide  a  friendly  buffer  State  on  India's  northwest  border, 
was  a  hubristic  enterprise  that  was  marked  by  disaster — the  wiping  out  of  a  re- 
duced garrison  as  it  struggled  back  to  the  Khyber  Pass.3  The  second  war,  which  was 
fought  to  counterbalance  Russian  influence  in  Afghanistan,  provided  evidence 
that  apparent  success  in  Afghanistan  can  be  quickly  followed  by  uprisings  and  set- 
backs. The  British,  having  defeated  the  Afghan  State,  had  no  political  solution  ex- 
cept to  appoint  a  suitable  "warlord"  as  head  of  State.  What  did  Callwell  have  to  say 
specifically  about  the  type  of  war  that  had  been  encountered  in  Afghanistan  and 
elsewhere  in  the  late  nineteenth  century?  His  words  are  as  pertinent  today  as  when 
they  were  penned  over  a  century  ago: 

With  the  capture  of  the  capital  any  approach  to  organized  resistance,  under  the  direct 
control  of  the  head  of  the  State,  will  almost  always  cease;  but  it  does  not  by  any  means 
follow  that  the  conflict  is  at  an  end.  .  .  .  [T]he  French  experiences  in  Algeria,  and  the 
British  experiences  in  Afghanistan,  show  that  these  irregular,  protracted,  indefinite 
operations  offer  often  far  greater  difficulties  to  the  regular  armies  than  the  attainment 
of  their  original  military  objective.4 


Afghanistan  and  International  Security 


The  wars  in  Afghanistan  in  the  nineteenth  century  have  been  the  foundation  for 
a  view  of  the  country  and  its  peoples — especially  the  latter — as  unusually  resistant 
to  any  kind  of  foreign  influence  or  control,  actual  or  perceived.  David  Loyn,  the 
veteran  BBC  reporter  on  Afghanistan  who  has  charted  these  previous  conflicts,  ar- 
gues that  mistakes  are  being  repeated  today  because  of  a  neglect  of  the  study  of  his- 
tory. He  charges  that  the  United  States  and  Britain  have  failed  to  understand  the 
extent  of  resistance  in  Afghanistan  to  anything  that  looks  like  foreign  control.  It 
follows,  states  Loyn,  that  it  is  necessary  for  outsiders  to  accept  a  very  limited  role, 
and  to  negotiate  with  the  Taliban.5  This  is  one  important  perspective  on  wars  in  Af- 
ghanistan. However,  it  should  not  be  taken  to  imply  that  there  is  uniform  hostility 
to  all  foreign  influence.  Both  between  and  within  Afghanistan's  distinct  ethnic 
groups  there  is  a  long  tradition  of  bitter  contestation,  and  in  all  Afghanistan's  wars 
some  groups  have  had  arrangements  of  one  kind  or  another  with  outside  patrons 
and  powers. 

Much  of  the  country's  history  exposes  the  fragility  of  the  idea  of  the  Afghan 
State.  Twentieth-century  Afghanistan  was  characterized  not  only  by  wars  against 
foreigners,  such  as  the  Third  Anglo- Afghan  War,  of  May  1919,  but  also  by  civil 
wars,  assassinations  and  coups,  as  in  the  conflict  of  1928-31  and  the  seizures  of 
power  by  Daud  Khan  in  1953  and  1973.  Throughout  the  twentieth  century,  there 
was  a  continuous  interplay  between  the  development  of  constitutional  govern- 
ment and  the  continuation  of  political  violence.  The  role  of  the  Pashtun  peoples  in 
Afghanistan  was  one  of  many  bones  of  contention.  The  political  culture  of  Afghan- 
istan was  characterized  by  State  weakness  and  general  instability. 

The  Soviet  War  in  Afghanistan,  1979-89 

The  war  in  1979-89  between  the  Soviet-backed  government  of  Afghanistan  and  its 
mujahidin  adversaries  had  major  effects  on  international  politics.  In  particular,  the 
war  had  a  vast  impact  in  the  Soviet  Union.  It  accentuated  the  Soviet  Union's  sense 
of  imperial  overstretch,  contributed  to  a  decline  of  faith  in  the  use  of  force  to  main- 
tain the  empire  and  accentuated  doubts  about  a  central  purpose  of  Soviet  foreign 
policy — the  maintenance  of  a  network  of  dependent,  demanding  and  hardly  popu- 
lar socialist  regimes  in  an  assortment  of  countries  around  the  world.  It  formed  part 
of  the  background  to  the  role  of  civil  resistance  movements  in  central  and  Eastern 
Europe  pursuing  their  struggles  by  non-violent  means  to  a  successful  outcome  in 
1989.  In  short,  the  Afghan  war  contributed  to  the  collapse  of  the  Soviet  empire. 
This  very  fact  is  not  only  proof  of  the  fateful  consequences  that  may  flow  from  war 
in  Afghanistan,  but  is  also  one  driver  of  the  present  war.  Osama  Bin  Laden  has 
made  no  secret  of  his  belief  that,  having  helped  to  destroy  the  Soviet  Union,  he 
aims  to  do  the  same  for  the  United  States.  One  down,  one  to  go!  This  was  not  the 


Adam  Roberts 


only  case  of  post-Cold  War  hubris — there  were  also  many  variants  of  this  condi- 
tion elsewhere,  including  in  the  British  and  American  governments — but  it  was  a 
notably  severe  one.  Bin  Laden's  interpretation  of  events  led  him  to  9/11  and  en- 
gulfed Afghanistan  in  continuing  war. 

There  were  other  ways  in  which  the  Soviet- Afghan  war  led  to  subsequent  wars. 
The  channeling  of  much  international  aid  to  mujahidin  groups  through  Pakistan 
reinforced  the  fateful  link  between  events  in  Pakistan  and  those  in  Afghanistan. 
The  power  of  non-State  groups  and  regional  military  chiefs,  and  their  tendency  to 
rely  on  threats  and  uses  of  force  not  controlled  by  any  State,  became  more  deeply 
engrained  than  before  in  both  Afghanistan  and  the  frontier  areas  of  Pakistan.  The 
religious  element  in  Afghan  politics — which  was  particularly  prominent  in  the 
struggle  against  Soviet  influence,  and  was  encouraged  by  the  outside  powers  that 
provided  much-needed  finance  and  weapons  for  the  mujahidin — did  not  disap- 
pear with  the  departure  of  Soviet  forces  in  1989.  Indeed,  within  a  few  years  reli- 
gious warriors  trained  in  the  hard  school  of  combat  against  Soviet  forces  in 
Afghanistan  were  to  turn  up  in  a  wide  range  of  other  locations,  including  in  the  for- 
mer Yugoslavia. 

These  legacies  of  the  war  against  Soviet  control  remain  most  important  in 
Afghanistan  itself.  The  problems  of  non- State  violence,  regional  rivalries  and 
the  religious  element  in  politics  are  not  new  to  Afghanistan,  but  they  were  rein- 
forced. Long-held  suspicions  toward  certain  types  of  foreign  presence  remained 
prominent. 

II.  The  Wars  in  Afghanistan  since  1989 

The  current  multifaceted  and  complex  situation  in  Afghanistan  is  best  understood 
as  the  continuation  of  a  protracted  war  over  the  country's  future  which  began 
many  years  before  2001.  Understanding  its  character  is  important  not  only  for  de- 
veloping military  and  political  policy  in  the  country,  but  also  for  understanding  its 
likely  impact  on  international  security  generally.  There  are  fundamental  differ- 
ences of  understanding  about  its  nature. 

Whether  viewed  as  a  war  or  a  stabilization  mission,  there  is  a  tendency  to  pre- 
sent the  situation  as  a  conflict  between  an  essentially  progressive  cause  repre- 
sented by  the  Karzai  government  in  Kabul  on  the  one  side,  and  two  reactionary 
Islamist  forces  on  the  other:  the  Taliban  and  al-Qaeda.  This  view  may  be  too  simple 
in  its  views  both  of  the  Afghan  government  and  of  its  opponents.  Most  strikingly, 
it  tends  to  overstate  the  effectiveness  of  the  Afghan  government.  It  also  under- 
states the  importance  of  ethnic/linguistic  divisions  within  Afghanistan,  where  the 
largest  ethnic  group,  the  Pashtuns,  constitutes  over  40  percent  of  the  population. 


Afghanistan  and  International  Security 


Elements  of  Afghan  and  Pashtun  nationalism  play  a  significant  part  in  the  resis- 
tance to  the  Afghan  government  and  its  foreign  backers.  A  review  of  the  twenty 
years'  crisis  in  Afghanistan  since  the  Soviet  withdrawal,  and  of  the  place  of  Paki- 
stan in  that  crisis,  is  necessary  for  an  understanding  of  the  nature  of  this  war. 

The  Crisis  since  1989 

Following  the  withdrawal  of  the  last  Soviet  forces  from  Afghanistan  in  January 
1989,  an  internal  crisis  and  war  erupted.  Indeed,  the  war  within  Afghanistan,  al- 
ways involving  patrons  around  the  region  to  sustain  the  war  efforts  of  the  parties, 
can  be  traced  back  further,  and  can  be  said  to  have  begun  in  about  1978.6  It  has 
never  really  ended.  Throughout  the  two  decades  since  1989  there  have  been  con- 
tinuing regional  rivalries  and  ongoing  conflict  between  modernizers  and  Islamists. 
There  have  been  two  moments  when  the  conflict  was  viewed  by  some  as  having 
ended — after  the  Taliban  victory  in  September  1996  and  after  the  Northern  Alli- 
ance victory  in  December  200 1.7  However,  on  both  occasions  the  conflict  contin- 
ued in  new  forms. 

This  first  phase  of  Afghanistan's  long-running  war  following  the  departure  of 
Soviet  forces  was  only  partially  concluded  on  September  26,  1996  when  Kabul  fell 
to  the  Taliban,  which  established  a  theocratic  style  of  government  throughout  the 
areas  under  their  control  and  in  1997  renamed  the  country  "Islamic  Emirate  of  Af- 
ghanistan." Then  and  thereafter  the  Northern  Alliance  continued  to  control  an 
area  of  northern  Afghanistan  and  to  challenge  Taliban  rule. 

From  October  7,  2001  onward,  following  the  al-Qaeda  attacks  in  the  United 
States  on  September  11,  direct  US  and  coalition  military  intervention  in  Afghani- 
stan changed  the  character  of  this  continuing  war.  Of  course  it  did  not  transform 
the  situation  completely:  resistant  to  change  as  ever,  rival  warlords  sought  to  main- 
tain their  fiefdoms  against  intervention  unless  it  could  offer  more  by  extending  the 
chance  of  collaboration.  However,  there  was  now  an  undeniably  international  war 
inside  Afghanistan.  There  was  not  much  doubt  that  this  was,  for  a  few  months,  an 
international  war  in  the  sense  of  a  war  between  sovereign  States — the  US-led  coali- 
tion versus  the  Taliban  government  of  Afghanistan.  In  November-December  2001 
the  US-led  intervention,  and  the  military  campaign  of  the  Northern  Alliance,  top- 
pled the  Taliban  regime,  which  had  been  supported  by  al-Qaeda.  This  military  ac- 
tion was  widely,  though  not  universally,  viewed  as  a  justifiable  response  to  the 
Taliban  for  having  allowed  Afghan  territory  to  be  used  for  preparing  attacks  on  the 
United  States,  and  additionally  had  the  effect  of  freeing  Afghanistan  from  an  un- 
popular regime.  Initially  there  was  much  popular  support  in  Kabul  and  elsewhere 
for  the  incoming  forces  of  the  International  Security  Assistance  Force  (ISAF),  but 
this  situation  was  to  change. 

8 


Adam  Roberts 


The  international  war  of  October-December  2001  had  been  superimposed  on 
two  other  more  enduring  conflicts:  the  non-international  armed  conflict  of  the 
Taliban  versus  Northern  Alliance,  and  the  US-led  struggle  against  al-Qaeda  terror- 
ists. Both  of  these  "other  conflicts"  continued.  The  war  against  al-Qaeda  and  re- 
lated terrorists,  who  were  now  based  in  Pakistan  as  well  as  Afghanistan,  carried  on 
without  interruption.  In  addition,  there  was  growing  resistance  in  southern  Af- 
ghanistan to  the  new  regime.  This  insurgency  began  relatively  slowly,  so  that  its  se- 
riousness was  not  recognized  for  some  time. 

How  should  this  resistance  be  characterized?  It  is  commonly  labeled  as  the 
Taliban  insurgency,  a  description  which  may  conceal  the  possibilities  that  the 
sources  of  support  for  the  insurgency  have  been  more  numerous  than  the  label 
"Taliban"  suggests,  or  that  the  ideology  of  the  Taliban  may  have  evolved.  The  in- 
surgent movement  has  drawn  on  elements  of  both  Afghan  and  Pashtun  national- 
ism, it  has  operated  alongside  traditional  forms  of  social  organization  and  systems 
of  justice,  its  recruiting  has  been  facilitated  by  Afghanistan's  high  levels  of  unem- 
ployment and  by  the  fact  that  it  is  able  to  pay  its  soldiers,  and  its  willingness  to  sup- 
port poppy  cultivation  not  only  increases  its  acceptance  in  certain  provinces  but 
also  exposes  the  incoherence  of  the  policies  of  the  various  NATO  countries  on  this 
issue.8  None  of  this  is  to  suggest  that  all  those  forces  labeled  Taliban  should  be  seen 
simply  as  heroic  patriots  or  as  Pashtun  traditionalists.  Ahmed  Rashid  has  written: 

The  United  States  and  NATO  have  failed  to  understand  that  the  Taliban  belong  to 
neither  Afghanistan  or  Pakistan,  but  are  a  lumpen  population,  the  product  of  refugee 
camps,  militarised  madrassas,  and  the  lack  of  opportunities  in  the  borderland  of 
Pakistan  and  Afghanistan.  They  have  neither  been  true  citizens  of  either  country  nor 
experienced  traditional  Pashtun  tribal  society.  The  longer  the  war  goes  on,  the  more 
deeply  rooted  and  widespread  the  Taliban  and  their  transnational  milieu  will  become.9 

Into  this  ongoing  conflict  a  new  element  was  added  from  2005  onward:  the  in- 
volvement in  combat  activities  of  contingents  of  the  NATO-led  ISAF.  The  original 
authorization  of  ISAF  in  2001  had  been  "to  assist  the  Afghan  Interim  Authority  in 
the  maintenance  of  security  in  Kabul  and  its  surrounding  areas,  so  that  the  Afghan 
Interim  Authority  as  well  as  the  personnel  of  the  United  Nations  can  operate  in  a 
secure  environment."10  Initially,  in  January  2002,  the  United  Kingdom  took  the 
lead  in  organizing  ISAF,  followed  at  six-month  intervals  by  other  "lead  States"  un- 
til NATO  as  such  took  over  in  August  2003.  ISAF's  remit  gradually  extended  across 
Afghanistan  and  in  some  provinces  came  to  involve  direct  combat. 1 l  By  2006  ISAF 
comprised  troops  from  thirty- two  countries.  Those  deployed  in  the  southern  prov- 
inces of  Afghanistan  became  increasingly  geared  to  a  counterinsurgency  campaign. 
This  campaign  had  not  been  part  of  ISAF's  original  role:  the  transition  to  it, 


Afghanistan  and  International  Security 


involving  a  gradual  stretching  of  the  initial  mandate,  resulted  in  some  unavoidably 
uneven  burden-sharing  between  NATO  member  States.  Thus  NATO  had  put  itself 
in  the  unenviable  position  of  staking  its  impressive  reputation  on  the  outcome  of  a  dis- 
tant and  little-understood  war  in  a  country  well  known  to  be  a  graveyard  for  foreign 
military  adventures. 

The  problem  is  exacerbated  by  the  limited  nature  of  the  involvement  of  outsiders — 
military  and  civilian — in  Afghan  society.  In  the  years  since  2001,  both  soldiers  and 
civilians  have  generally  had  short-term  tours  of  duty.  Few  of  them  have  learned  the 
relevant  languages,  and  there  is  remarkably  limited  institutional  memory,  espe- 
cially as  regards  knowledge  of  local  communities  and  political  traditions.  Indeed, 
on  the  civilian  side  there  has  been  a  conscious  break  from  the  experience  of  colonial 
administration,  which  has  meant,  unfortunately,  a  break  from  understanding  the 
society's  structure  and  the  tangled  history  of  its  links  with  outsiders. 

One  special  feature  of  the  ongoing  war  in  Afghanistan  that  distinguishes  it  from 
certain  other  post-Cold  War  US  involvements  has  been  that  the  US-led  forces  had 
at  the  start  significant  allies  within  the  country:  originally  the  Northern  Alliance, 
then  the  government  of  Afghanistan.  This  made  the  Afghan  involvement  different 
from  some  of  the  other  conflicts  in  which  the  United  States  has  been  involved, 
including  Iraq  in  the  first  years  of  the  US-led  presence  and  Somalia  over  a  much 
longer  period,  in  neither  of  which  were  there  strong  local  forces  in  place  with 
which  to  work. 

However,  this  apparently  favorable  situation  had  inherent  limitations  and  was 
vulnerable  to  change.  Even  after  its  capture  of  Kabul  in  December  2001,  the  North- 
ern Alliance,  which  at  the  best  of  times  was  an  unstable  coalition,  never  controlled 
all  of  Afghanistan.  The  Afghan  authorities  conspicuously  lacked  the  bureaucratic 
backup  that  provides  the  essential  underpinning  of  most  governments  around  the 
world.  The  Pashtuns  generally  resented  the  Northern  Alliance's  US-assisted  vic- 
tory; and  when,  around  2003-04,  the  Pashtuns  came  back  strongly  in  the  govern- 
ment (thanks  to  the  new  constitution  and  law  on  political  parties),  Afghan  opinion 
critical  of  the  United  States  found  a  voice.  Indeed,  the  boot  was  now  on  the  other 
foot,  with  minorities  complaining  of  Pashtun  nationalism  and  structural  exclu- 
sion. In  short,  the  social  foundations  of  the  foreign  presence  in  Afghanistan  proved 
to  be  weaker  than  they  had  first  seemed  in  2001-02. 

In  legal  terms,  there  has  been  a  tendency  to  focus  attention  on  the  question  of 
whether  particular  aspects  and  phases  of  the  ongoing  war  in  Afghanistan  should  be 
characterized  as  "international,"  "non-international"  or  something  else.  The  main 
problem  with  debates  on  this  topic  is  that  the  passion  for  pigeonholing  risks  ob- 
structing understanding  of  a  complex  reality.  Actually  the  wars  in  Afghanistan 
have  been  all  of  these  things.  If  one  were  forced  to  apply  a  single  label  to  all  their 

10 


Adam  Roberts 


aspects,  it  would  probably  be  "internationalized  civil  war,"  an  under-explored  but 
important  category  of  wars.  Yet  whichever  of  these  terms  is  adopted  has  only  lim- 
ited relevance  to,  or  effect  on,  policy  making.  Although  technically  it  is  true  that 
more  rules  apply  to  international  war  than  to  non-international  armed  conflict,  in 
this  case  most  of  the  powers  involved  in  the  war  do  at  some  level  recognize  the  need 
for  restraint  in  the  conduct  of  the  war,  a  matter  discussed  further  below. 

The  Pakistani  Factor 

Afghanistan's  neighbors — including  China,  Iran,  Tajikistan,  Turkmenistan  and 
Uzbekistan — all  have  legitimate  interests  in  the  country  and  its  long-running  con- 
flicts. Many  other  States,  including  India  and  Russia,  also  have  legitimate  interests 
in  whether  Afghanistan  can  manage  to  stay  together,  make  progress  in  develop- 
ment and  attract  refugees  back.  Of  all  the  relationships  with  other  States,  that  with 
Pakistan  is  the  most  complex,  and  has  contributed  most  to  Afghanistan's  ongoing 
divisions. 

All  borders  are  artificial  constructs  created  in  peoples'  minds.  Thus  in  itself  it  is 
hardly  a  remarkable  statement  to  say  that  the  border  between  Afghanistan  and 
Pakistan — the  Durand  Line  imposed  by  the  British  on  a  reluctant  Afghan  govern- 
ment in  1893 — is  artificial.  What  is  significant  about  this  border  is  that  Pashtuns 
on  either  side  of  the  line  view  it  as  artificial.  This  does  not  mean  that  they  are 
committed  to  a  definite  idea  of  a  new  state  of  "Pashtunistan"  separate  from  both 
Pakistan  and  Afghanistan.  Rather  it  means  that  conflicts  on  either  side  of  the  line 
immediately  acquire  a  cross-border  and  therefore  an  international  dimension. 
What  creates  an  issue,  both  for  governments  and  peoples,  is  its  chronic  porous- 
ness, the  existence  of  linked  conflicts  on  both  sides  of  it,  the  strength  of  the  bonds 
of  common  identity  and  experience  that  link  Pashtuns  in  Afghanistan  and  Paki- 
stan, and  the  inherent  weakness  of  both  of  these  States.  It  is  too  simple  to  say  that 
the  frontier  areas  of  both  States  are  ungovernable:  they  have  their  own  systems  of 
authority,  which  leave  little  room  for  control  by  the  State. 

Pakistan's  Federally  Administered  Tribal  Areas  (FATA),  which  run  along  the 
border  with  Afghanistan,  remain  almost  completely  outside  the  control  of  the  Pa- 
kistani government,  and  have  provided  fertile  ground  for  the  exercise  of  domi- 
nance by  the  Taliban  and  al-Qaeda.  They  are  a  legacy  of  empire.  The  British  had 
also  practiced  containment,  occasional  chastisement  and  periodic  negotiation;  and 
resistance  meant  that  a  final  occupation  was  simply  too  expensive  to  justify  in  im- 
perial terms.  One  remarkable  feature  of  this  situation  is  that  successive  Pakistani 
governments  have  had  no  counterinsurgency  policy  in  these  areas.  Occasional 
sweeps  and  demonstrations  of  firepower  are  in  no  way  substitutes  for  a  serious  pol- 
icy aimed  at  gaining  a  degree  of  consent  from  the  population  or  the  powerbrokers. 

11 


Afghanistan  and  International  Security 


The  United  States  has  not  used  the  power  that  ought  to  come  with  its  generous 
support  for  Pakistan  to  persuade  it  to  adopt  a  strategy  in  these  areas.  The  FATA 
constitutes  a  haven  for  terrorists  that  is  in  some  respects  comparable  to  the  one  that 
existed  in  Afghanistan  before  200 1 . 

Overlapping  with  all  this,  and  compounding  the  problem  of  relations  between 
the  two  countries,  is  the  fact  that  opinion  in  Pakistan  generally  on  matters  relating 
to  the  use  of  force  has  never  favored  the  US  vision  of  the  "War  on  Terror."  A  BBC 
World  Service  Poll  in  twenty-three  countries,  published  in  September  2008,  when 
asking  respondents  to  indicate  their  feelings  regarding  al-Qaeda,  found  high  levels 
of  support  for  it  in  Pakistan.  This  was  combined  with  a  mere  17  percent  of  Paki- 
stanis stating  that  they  had  negative  views  of  al-Qaeda,  the  lowest  proportion  of  re- 
spondents in  any  of  the  countries  polled.12  However,  this  may  reflect  more  a  desire 
to  take  an  anti-US  position  than  an  acceptance  of  terrorist  bombings.  Indeed,  in 
four  weeks  in  the  autumn  of  2008  an  anti-terror  petition  in  Pakistan — "This  is  Not 
Us" — attracted  almost  sixty- three  million  signatures  in  what  is  possibly  the  biggest 
such  lobbying  effort  anywhere  in  the  world.13  The  responses  to  terrorist  bombings 
in  Pakistan  in  early  2009  do  not  suggest  general  support  for  the  acts  of  terrorists. 

The  Pakistani  connection  has  deeply  affected  events  in  Afghanistan  in  all  the 
wars  there  since  the  Soviet  intervention  in  1979.  Throughout,  Pakistan's  Inter- 
Services  Intelligence  has  had  a  major,  and  not  always  controlled,  role.  In  the  1980s 
Pakistan,  with  massive  Western  support,  provided  crucial  assistance  for  the  anti- 
Soviet  rebels  in  Afghanistan.  Then  from  1994  onward  there  was  extensive  Pakistani 
official  support  for  the  Taliban  movement  in  Afghanistan.14 

In  the  ongoing  war  in  Afghanistan  a  number  of  consequences  in  the  security 
field  have  flowed  from  the  Pakistani  connection.  The  first  is  that,  since  Pashtuns  on 
either  side  of  the  border  are  more  likely  than  most  others  to  view  the  Western  mili- 
tary presence  in  Afghanistan  as  illegitimate,  there  is  inevitably  a  transborder  hin- 
terland for  the  insurgency.  Second,  since  Pashtuns  play  a  large  part  in  the  Pakistan 
Army — and  in  the  Frontier  Corps,  which  comes  under  the  Ministry  of  Interior — 
there  are  built-in  difficulties  in  Pakistani  government  attempts  to  impose  the 
capital's  rule  by  force  on  the  various  Pashtun-inhabited  areas.15  As  a  consequence  of 
these  two  factors,  the  insurgency  in  southern  Afghanistan  is  likely  for  the  foreseeable 
future  to  have  safe  base  areas  inside  Pakistan.  In  sum,  like  so  many  border  regions  in 
the  world,  the  Pakistan -Afghanistan  border  presents  excellent  opportunities  for  the 
organization  and  continuation  of  insurgency.  The  fluidity  of  the  situation  on  both 
sides  of  the  border  suggests  that  there  are  not  two  wars  in  the  region,  but  one. 

This  creates  the  third  consequence  of  the  Pakistani  connection:  the  strong  pres- 
sure on  US  military  leaders  to  take  the  war  unilaterally  into  the  territory  of  Paki- 
stan. US  policy  toward  Pakistan  notoriously  lacks  strategic  coherence.16  The  fact 

12 


Adam  Roberts 


that  the  United  States  considers  the  Pakistani  authorities  unreliable,  with  certain 
elements  willing  to  pass  on  intelligence  to  US  enemies,  means  that  the  US  military 
role  on  the  territory  of  Pakistan  cannot  be  based  on  close  military  cooperation.  As  a 
result,  US  military  action  in  Pakistan  is  bound  to  be  perceived  as  an  infringement 
of  Pakistan's  sovereignty.  The  US  killings  of  Pakistani  soldiers  in  several  such  inci- 
dents, and  the  strong  reactions  to  this  in  Pakistan,  confirmed  the  chaotic  and  in- 
flammatory character  of  the  situation.17  George  Bush's  presidential  order  of  July 
2008,  authorizing  US  strikes  in  Pakistan  without  seeking  the  approval  of  the  Paki- 
stani government,  while  an  understandable  reaction  to  a  troubling  situation  on  the 
border,  risks  further  destabilizing  a  country  that  is  a  crucial  if  deeply  flawed  ally.18 
It  is  sobering  to  reflect  that  the  Soviet  Union,  in  the  course  of  its  counterinsurgency 
operations  in  the  1990s,  engaged  in  hundreds  of  cross-border  strikes  in  Pakistan, 
getting  few  if  any  results  from  them.19 

III.  The  Many  Roles  of  the  United  Nations  in  Afghanistan  since  1979 

The  United  Nations  has  a  long  history  of  involvement  in  the  conflicts  in  Afghani- 
stan and  such  a  continuing  commitment  there  that  failure  would  impact  on  the 
UN's  already  tarnished  reputation.  There  have  been  three  main  phases  of  UN  in- 
volvement: during  the  Soviet  war  from  1979  to  1989,  in  the  largely  civil  war  of 
1990-2001  and  in  the  war  since  2001  that  continues  today. 

UN  Roles  during  the  Soviet  War  in  Afghanistan  (1979-89) 

During  the  Soviet  war  the  main  action  was  not  in  the  Security  Council:  there  the 
Soviet  Union  could  veto  any  direct  UN  involvement  in  the  conflict,  so  the  Council 
referred  the  matter  to  the  General  Assembly  under  the  UN's  "Uniting  for  Peace" 
procedure.20  From  then  on  the  conflict  was  mainly  handled  in  the  General  Assembly 
and  in  the  office  of  the  Secretary-General.  In  January  1980  the  General  Assembly 
called  for  "the  immediate,  unconditional  and  total  withdrawal  of  the  foreign 
troops  from  Afghanistan."21  Subsequently,  under  the  auspices  of  the  Secretary- 
General,  the  UN  initiated  a  "good  offices"  function  to  assist  negotiations  involving 
the  Afghan  and  Soviet  governments  on  the  one  hand,  and  Pakistan  on  the  other. 
This  led  eventually  to  the  April  1988  Geneva  Accords  on  Afghanistan,  which  were 
a  crucial  landmark  in  the  ending  of  the  Cold  War.22  Later  in  1988  the  UN  Good 
Offices  Mission  in  Afghanistan  and  Pakistan  (UNGOMAP)  was  established.23  This 
was  the  first  UN  peacekeeping  mission  since  the  establishment  of  United  Nations 
Interim  Force  in  Lebanon  in  March  1978,  evidence  of  the  key  part  played  by 
Afghan  events  in  the  post-Cold  War  re-emergence  of  the  UN. 


13 


Afghanistan  and  International  Security 


At  the  same  time,  the  process  of  ending  the  Soviet  involvement  posed  a  classic 
dilemma  for  the  United  Nations.  The  internal  conflict  presented  the  delicate  question 
of  the  extent  to  which  the  United  Nations,  as  an  organization  of  governments, 
could  be  seen  to  negotiate  with  rebel  forces  that  were  battling  it  out  throughout  the 
country.  As  Secretary-General  Javier  Perez  de  Cuellar  put  it  in  1988,  it  would  be 
"against  our  philosophy  to  be  in  touch  with  the  enemies  of  governments."24  Yet 
that  is  exactly  what  the  United  Nations  started  to  do  in  the  following  year,  in  the  at- 
tempt to  facilitate  a  comprehensive  political  settlement  and  to  set  up  a  broad-based 
government.  In  presenting  the  United  Nations  with  this  dilemma,  the  war  in  Afghani- 
stan was  truly  characteristic  of  the  post-Cold  War  era.  The  UN's  limited  success  in 
persuading  the  parties  to  a  largely  internal  conflict  to  agree  to  a  peace  settlement 
would  also  be  a  harbinger  of  things  to  come. 

UN  Roles  in  the  Continuing  Civil  War  (1990-2001) 

The  continuing  civil  war  following  the  Soviet  departure  presented  a  difficult  chal- 
lenge for  the  United  Nations.  By  March  1990  UNGOMAP,  having  completed  its 
key  mission  of  observing  the  Soviet  withdrawal,  was  wound  up.  Yet  there  was  a 
chaotic  situation  on  which  the  Security  Council,  the  General  Assembly  and  the 
Special  Representative  of  the  Secretary- General  had  remarkably  little  capacity  to 
influence  events.  The  General  Assembly  established  the  UN  Special  Mission  to  Af- 
ghanistan (UNSMA)  in  1993,  in  the  distant  hope  of  facilitating  national  rap- 
prochement and  reconstruction.25  The  post  of  Special  Representative  for 
Afghanistan,  who  headed  the  mission,  was  held  successively  by  two  of  the  ablest 
and  most  experienced  UN  troubleshooters,  Lakhdar  Brahimi  and  Francesc 
Vendrell.  However,  they  could  achieve  little  in  UNSMA's  lifetime,  which  ended  in 
2001-02. 

At  the  same  time  the  Security  Council  gradually  became  more  actively  involved 
with  Afghanistan.  One  month  after  the  Taliban  came  to  power  in  September  1996 
the  Council  passed  a  resolution  which  staked  out  a  number  of  critically  important 
positions.  As  well  as  stating  its  unsurprising  conviction  that  "the  United  Nations, 
as  a  universally  recognized  and  impartial  intermediary,  must  continue  to  play  the 
central  role  in  international  efforts  towards  a  peaceful  resolution  of  the  Afghan 
conflict,"  it  called  for  an  immediate  end  to  all  hostilities,  denounced  the  discrimi- 
nation against  girls  and  women,  and  called  for  an  end  to  the  practices  that  had 
made  the  country  a  fertile  ground  for  drug  trafficking  and  terrorism.26  Then  in  August 
1998,  following  an  upsurge  in  the  fighting  between  the  Taliban  and  the  Northern 
Alliance,  the  Security  Council  passed  a  further  resolution,  again  setting  out  some 
useful  principles.  It  noted  that  there  was  "a  serious  and  growing  threat  to  regional 
and  international  peace  and  security,  as  well  as  extensive  human  suffering,  further 

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Adam  Roberts 


destruction,  refugee  flow  and  other  forcible  displacement  of  large  numbers  of  people"; 
it  expressed  concern  at  "the  increasing  ethnic  nature  of  the  conflict";  it  deplored 
the  fact  that,  despite  numerous  UN  pleas,  there  was  continuing  foreign  interference; 
condemned  the  attacks  on  UN  personnel  in  the  Taliban-held  areas;  condemned  the 
Taliban's  capture  of  the  Iranian  Consulate-General  in  Mazar-e-Sharif;  reaffirmed 
that  "all  parties  to  the  conflict  are  bound  to  comply  with  their  obligations  under 
international  humanitarian  law";  and  demanded  the  Afghan  factions  "to  refrain 
from  harboring  and  training  terrorists  and  their  organizations  and  to  halt  illegal 
drug  activities."27  In  October  1999,  it  imposed  sanctions  on  the  Taliban  regime  in 
Afghanistan:28  arguably  this  decision  undermined  whatever  was  left  of  the  UN's 
good-offices  mission.  The  Council  may  have  been  ineffective  in  the  1990s  civil  war 
in  Afghanistan,  but  it  was  certainly  not  asleep.  Some  of  the  positions  that  it  had 
staked  out  would  be  important  for  the  future,  in  that  they  provided  a  basis  for 
subsequent  tough  action  against  the  Taliban  and  for  serious  efforts  to  rebuild  the 
Afghan  State. 

UN  Roles  in  the  War  since  September  2001 

The  attacks  on  the  United  States  on  September  11,  2001  were  a  clear  indication  of 
the  connection  between  Afghanistan  and  international  security.  In  1996  and  1998 
the  Council  had  warned  of  the  terrorist  danger  in  Afghanistan.  Now  it  was  to  have  a 
more  prominent  role,  giving  implicit  authorization  to  the  US-led  use  of  force,  and 
becoming  deeply  involved  in  the  subsequent  reconstruction  of  Afghanistan. 

The  most  significant  acts  of  the  Council  after  9/11  took  the  form  of  two 
resolutions  which  had  profound  implications  for  the  management  of  interna- 
tional security  issues.  The  first — Resolution  1368,  passed  the  day  after  the  attacks — 
by  recognizing  "the  inherent  right  of  individual  or  collective  self-defence  in  accor- 
dance with  the  Charter"  implicitly  accepted  the  proposition  that  it  could  be  lawful 
for  a  State  to  take  action  against  another  State  if  the  latter  failed  to  stop  terrorist 
attacks  being  launched  from  its  territory.  The  same  resolution  called  on  all  States 
to  bring  the  perpetrators  to  justice,  and  to  cooperate  to  prevent  and  suppress 
terrorist  acts.29 

In  this  Resolution  the  Council  accepted  that  a  right  of  self-defense  could  apply 
to  a  State  when  it  was  attacked  by  a  non-State  entity.  To  those  who  believe  that  action 
against  terrorists  should  be  confined  to  police  methods,  this  was  controversial. 
However,  the  Resolution  was  passed  in  the  specific  and  hopefully  unique  circum- 
stances of  9/1 1,  when  the  Taliban  regime  was  refusing  to  take  any  action  against  the 
terrorists  in  their  midst.  The  Resolution  does  not  mean  that  there  is  or  should  be 
general  Council  approval  of  responding  to  terrorist  attacks  by  cross-border  military 
actions,  or  that  such  action  should  generally  be  viewed  as  lawful.  The  history  of 

15 


Afghanistan  and  International  Security 


such  responses  is  dismal,  as  evidenced  for  example  by  the  Hapsburg  attempt  to 
wipe  out  the  terrorist  "hornets'  nest"  in  Serbia  in  1914,  and  the  various  Israeli 
counterterrorist  operations  in  Lebanon  in  the  past  thirty  years.  The  initial 
effectiveness  of  the  military  campaign  in  Afghanistan  in  late  2001  appears  to  be 
an  exception  to  the  proposition  that  it  is  unwise  to  attack  States  from  which  terror 
originates,  but  in  the  aftermath  the  proposition  has  recovered  some  credibility.  Yet 
the  resulting  caution  about  military  intervention  is  bound  to  face  severe  challenges 
if  State-sponsored  or  State-tolerated  terrorism  continues  to  be  a  major  feature  of 
international  politics. 

The  second  key  resolution  passed  by  the  Council  in  September  200 1 ,  Resolution 
1373,  recognized  "the  need  for  States  to  complement  international  cooperation  by 
taking  additional  measures  to  prevent  and  suppress,  in  their  territories  through  all 
lawful  means,  the  financing  and  preparation  of  any  acts  of  terrorism."  It  then  indi- 
cated the  remarkable  extent  of  such  measures,  and  the  key  role  of  the  Council  in 
overseeing  them.  It  used  strong  language — the  Council  "decides  that  all  states 
shall"  take  action,  rather  than  merely  calling  on  them  to  do  so.30  The  General  As- 
sembly— often  wary  of  any  increase  in  the  Security  Council's  powers — was  duly 
nervous  but  did  not  go  against  the  Council's  approach.31  It  remains  possible  that  in 
the  long  run  the  greatest  effect  of  Afghanistan  on  international  security  will  be  that 
it  compelled  the  Council  to  take  on  a  more  intrusive  role  in  relation  to  States  than 
had  ever  previously  been  contemplated. 

Yet  the  actual  role  of  the  Council  in  the  events  following  the  9/ 1 1  attack  was 
limited.  True,  its  resolutions  and  other  actions  were  important  for  the  interna- 
tional legitimacy  of  the  US-led  military  action  in  Afghanistan  and  for  the  attempts 
to  build  up  a  post-Taliban  system  of  government  there.32  However,  there  was  no 
way  in  which  the  Council  could  have  been  centrally  involved  in  mustering  and 
commanding  the  military  coalition  that  resulted  in  the  closing  of  the  al-Qaeda 
bases  in  Afghanistan  and  the  removal  of  the  Taliban  from  power  in  Kabul.  The  most 
striking  feature  of  the  Council's  role  in  the  hostilities  of  late  2001  is  its  limited 
character. 

Following  the  installation  of  the  Karzai  government  in  Kabul  on  December  22, 
2001,  the  two  main  tasks  facing  the  new  government  and  its  outside  backers  were 
perceived  to  be  reconstruction  and  the  provision  of  security.  The  United  Nations 
was  widely  seen — even  by  the  US  administration — as  being  pivotal  in  tackling 
these  tasks.  The  key  statement  of  this  period,  which  did  much  to  define  the  role  not 
just  of  the  United  Nations  but  of  the  international  community  generally,  was  made 
by  Lakhdar  Brahimi,  Special  Representative  of  the  Secretary-General  for  Afghani- 
stan. In  discussing  the  planned  UN  Assistance  Mission  in  Afghanistan  (UN  AM  A), 
he  famously  said:  "It  will  be  an  integrated  mission  that  will  operate  with  a  'light 

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Adam  Roberts 


footprint,'  keeping  the  international  United  Nations  presence  to  the  minimum  re- 
quired, while  our  Afghan  colleagues  are  given  as  much  of  a  role  as  possible."33 

This  immediately  raises  the  question  of  whether  a  light  footprint  is  indeed  pos- 
sible in  a  country  with  such  a  limited — and  distrusted — State  structure  as  that  of 
Afghanistan.  The  concept  was  inevitably  buffeted  by  events  and  modified  to  the 
point  where  some  did  not  recognize  it.  Within  a  year  or  two  a  reviving  insurgency, 
and  major  military  operations  on  Afghan  territory  by  the  United  States  and  NATO, 
created  the  dual  risks  that  the  footprint  would  be  perceived  as  heavy  and  that 
UNAMA  would  be  seen  as  powerless  to  implement  important  parts  of  its  mandate. 
It  was  not  the  only  part  of  the  UN  system  that  faced  the  problem  of  appearing  to  be 
partial,  or  powerless,  or  both.  As  Gilles  Dorronsoro  has  pointed  out  in  a  critical 
survey  of  the  Security  Council's  roles  in  Afghanistan  up  to  the  end  of  2006,  "the  di- 
rect involvement  by  Permanent  Members  of  the  Security  Council  in  a  counterin- 
surgency  war  has  resulted  in  the  Council  being  silent  on  specific  violations  of 
international  humanitarian  law."34 

In  the  years  since  2002  in  which  it  has  operated  in  Afghanistan,  UNAMA  has 
sought  to  assist  political  and  economic  transition  and  the  rule  of  law.  The  report  of 
its  activities  up  to  March  2008  presented  a  sobering  picture: 

[T]he  political  transition  continues  to  face  serious  challenges.  The  Taliban  and  related 
armed  groups  and  the  drug  economy  represent  fundamental  threats  to  still-fragile 
political,  economic  and  social  institutions.  Despite  tactical  successes  by  national  and 
international  military  forces,  the  anti-Government  elements  are  far  from  defeated. 
Thirty-six  out  of  376  districts,  including  most  districts  in  the  east,  south-east  and 
south,  remain  largely  inaccessible  to  Afghan  officials  and  aid  workers. . . .  Meanwhile, 
poor  governance  and  limited  development  efforts,  particularly  at  the  provincial  and 
district  levels,  continue  to  result  in  political  alienation  that  both  directly  and  indirectly 
sustains  anti- Government  elements.35 

IV.  Fitting  Military  Doctrine  and  Practice  to  Afghan  Realities 

The  limitations  of  military  doctrines  and  practice  are  often  exposed,  not  by 
arguments,  but  by  events.  Thus  it  was  mainly  events  in  Iraq  and  Afghanistan 
that  exposed  the  inadequacies  of  the  so-called  "revolution  in  military  affairs,"  an 
idea  that  was  popular  in  the  United  States  from  the  mid-1990s  until  at  least 
2003. 36  Afghanistan  was  always  likely  to  be  a  difficult  theater  of  operations  for 
outside  military  forces.  Seeing  this  (and  perhaps  also  because  he  did  not  want  an 
ongoing  distraction  from  the  future  invasion  of  Iraq,  for  which  he  was  already 
lobbying)  Paul  Wolfowitz  said  in  November  2001,  "In  fact,  one  of  the  lessons  of 
Afghanistan's  history,  which  we've  tried  to  apply  in  this  campaign,  is  if  you're  a 


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Afghanistan  and  International  Security 


foreigner,  try  not  to  go  in.  If  you  go  in,  don't  stay  too  long,  because  they  don't 
tend  to  like  any  foreigners  who  stay  too  long."37 

Many  problems  have  been  encountered  in  implementing  and  adapting  military 
doctrine  and  practice  in  face  of  Afghan  realities.  Three  issues  considered  here  are 
the  role  of  airpower,  the  complexities  of  operating  in  an  alliance  framework,  and 
the  appropriateness  or  otherwise  of  COIN  doctrine.  The  first  two  are  touched  on 
here  briefly:  more  attention  is  paid  to  the  third.  Many  key  developments,  of  consid- 
erable relevance  to  containing  the  insurgency,  cannot  be  covered:  they  include  par- 
ticularly the  key  role  of  the  Afghan  National  Police. 

Airpower  in  Afghanistan 

Ever  since  October  2001  airpower  (which  mainly  means  US  airpower)  has  played 
an  important  part  in  military  operations  in  Afghanistan.  The  apparent  success  of 
the  use  of  airpower  in  October-December  2001  was  deceptive:  a  major  factor  in 
the  Taliban's  defeat  was  the  advance  of  ground  forces — those  of  the  Northern  Al- 
liance. Since  then,  the  role  of  airpower  in  the  Afghan  conflict  has  been  a  subject  of 
contestation,  principally  between  the  Army  and  Marines  on  the  one  hand,  and 
the  US  Air  Force  on  the  other.  A  key  issue  has  been  whether  airpower  is  a  major 
instrument  in  its  own  right,  or  is  mainly  useful  in  supporting  ground  forces.  Self- 
evidently,  the  US  and  NATO  ground  forces  in  Afghanistan,  widely  dispersed  and 
few  in  number,  frequently  need  airpower  in  support  of  their  ground  operations. 
Indeed,  tactical  air  support  has  been  vital  to  any  success  they  have  had,  and  has 
often  saved  the  small  numbers  of  ISAF  forces  from  being  overwhelmed.  In  mili- 
tary terms,  a  "light  footprint"  on  the  ground  inevitably  means  a  heavy  air 
presence. 

Those  planning  coalition  military  operations  in  Afghanistan  have  shown  aware- 
ness of  the  dangers  of  reliance  on  airpower,  especially  of  the  adverse  consequences 
of  killing  civilians.  On  occasion  they  have  even  claimed  to  have  set  an  aim  of  no  ci- 
vilian casualties.38  While  this  aim  actually  goes  further  than  the  strict  requirements 
of  existing  law  applicable  in  an  international  armed  conflict,  in  practice  it  has  not 
been  achieved.  Part  of  the  difficulty  is  that  the  very  definition  of  civilian  is  prob- 
lematic in  a  war  such  as  that  in  Afghanistan.  In  addition,  many  other  factors  have 
prevented  realization  of  the  aim  of  no  civilian  casualties:  shortage  of  ground  forces, 
different  approaches  of  individual  commanders,  poor  intelligence,  the  heat  of  bat- 
tle, weapons  malfunction,  the  co-location  of  military  targets  and  civilians,  and  the 
frayed  relationship  between  ground  and  air  forces  operating  in  Afghanistan.39  A 
Human  Rights  Watch  report  in  September  2008  summarized  the  situation  thus: 


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Adam  Roberts 


In  the  past  three  years,  the  armed  conflict  in  Afghanistan  has  intensified,  with  daily 
fighting  between  the  Taliban  and  other  anti-government  insurgents  against  Afghan 
government  forces  and  its  international  military  supporters.  The  US,  which  operates  in 
Afghanistan  through  its  counter-insurgency  forces  in  Operation  Enduring  Freedom 
(OEF)  and  as  part  of  the  NATO-led  International  Security  Assistance  Force  (ISAF),  has 
increasingly  relied  on  airpower  in  counter-insurgency  and  counter-terrorism 
operations.  The  combination  of  light  ground  forces  and  overwhelming  airpower  has 
become  the  dominant  doctrine  of  war  for  the  US  in  Afghanistan.  The  result  has  been 
large  numbers  of  civilian  casualties,  controversy  over  the  continued  use  of  airpower  in 
Afghanistan,  and  intense  criticism  of  US  and  NATO  forces  by  Afghan  political  leaders 
and  the  general  public. 

As  a  result  of  OEF  and  ISAF  airstrikes  in  2006,  116  Afghan  civilians  were  killed  in  13 
bombings.  In  2007,  Afghan  civilian  deaths  were  nearly  three  times  higher:  321  Afghan 
civilians  were  killed  in  22  bombings,  while  hundreds  more  were  injured.  In  2007,  more 
Afghan  civilians  were  killed  by  airstrikes  than  by  US  and  NATO  ground  fire.  In  the  first 
seven  months  of  2008,  the  latest  period  for  which  data  is  available,  at  least  119  Afghan 
civilians  were  killed  in  12  airstrikes.40 

That  last  figure  needed  to  be  increased  when  it  was  revealed  in  October  2008 
that  thirty-three  civilians  had  been  killed  in  a  single  US  airstrike  on  August  22. 
Such  incidents  do  serious  damage  to  the  coalition  cause.  Largely  as  a  result  of  the 
long  history  of  such  incidents,  there  has  been  a  strong  anti-coalition  reaction. 
Already  in  2006  the  Afghan  parliament  had  demonstrated  its  concern  about  coali- 
tion military  actions,  and  such  expressions  of  concern  have  subsequently  become 
more  frequent.  Meanwhile,  President  Hamid  Karzai,  whose  authority  has  been 
diminishing,  has  made  a  number  of  criticisms  of  the  coalition  forces,  calling  for  an 
end  to  civilian  casualties,  and  even  stating  that  he  wanted  US  forces  to  stop  arrest- 
ing suspected  Taliban  members  and  their  supporters.41 

The  NATO  Framework 

From  2001  onward  the  United  States  has  operated  in  Afghanistan  with  coalition 
partners  and,  especially  since  August  2003,  with  the  formal  involvement  of  NATO. 
Indeed,  in  Afghanistan  NATO  is  involved  in  ground  combat  operations  for  the  first 
time  in  its  history — far  from  its  normal  area  of  responsibility  and  against  a  threat 
very  different  from  the  one  it  had  been  created  to  face.  The  NATO  involvement  in 
Afghanistan  is  widely,  but  perhaps  not  wisely,  viewed  as  "a  test  of  the  alliance's 
political  will  and  military  capabilities."42  It  is  an  exceptionally  hard  test.  Indeed,  the 
implication  that  the  future  of  the  alliance  hangs  on  this  test  is  reminiscent  of  earlier 
views  that  US  credibility  was  on  the  line  in  Vietnam. 


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Afghanistan  and  International  Security 


NATO's  involvement  in  Afghanistan  is  in  sharp  contrast  to  its  conduct  during 
the  Cold  War.  In  that  period  it  repeatedly  and  studiously  avoided  involvement  in 
colonial  conflicts — the  French  wars  in  Indochina  and  Algeria,  the  Portuguese  wars 
in  Africa,  the  British  in  Malaya,  the  Dutch  in  Indonesia  and  so  on.  Its  individual 
members  were  involved  in  these,  but  the  alliance  was  not.  NATO  also  avoided  in- 
volvement in  postcolonial  conflicts  or,  as  in  Cyprus,  limited  itself  to  an  essentially 
diplomatic  role.  Now  in  Afghanistan,  which  has  all  the  hallmark  features  of  post- 
colonial  States  undergoing  conflict — especially  the  lack  of  legitimacy  of  the  consti- 
tutional system,  government  and  frontiers — NATO  became  engaged,  all  with  little 
public  debate. 

The  NATO  role  in  Afghanistan  began  in  a  problematic  way,  and  so  it  has  contin- 
ued. On  September  12,  2001,  the  day  after  the  9/11  attacks,  the  NATO  Council 
stated: 

If  it  is  determined  that  this  attack  was  directed  from  abroad  against  the  United  States,  it 
shall  be  regarded  as  an  action  covered  by  Article  5  of  the  Washington  Treaty,  which 
states  that  an  armed  attack  against  one  or  more  of  the  Allies  in  Europe  or  North 
America  shall  be  considered  an  attack  against  them  all.43 

When  the  United  States  gave  this  offer  the  brush-off,  preferring  to  have  a  "coalition 
a  la  carte"  in  which  there  would  be  no  institutional  challenge  to  its  leadership,  there 
was  disappointment  and  irritation  in  Europe.  The  war  in  Afghanistan  in  October- 
December  2001,  while  it  was  effectively  conducted  under  US  leadership,  was  also 
one  chapter  in  the  story  of  the  declining  size  of  US-led  wartime  coalitions. 

However,  NATO  rapidly  came  back  into  the  picture,  not  least  because  the 
United  States  came  to  recognize  the  need  for  long-term  assistance  in  managing  so- 
cieties that  had  been  freed  from  oppressive  regimes  by  US  uses  of  force.  NATO  has 
been  directly  involved  in  Afghanistan  at  least  since  August  9,  2003,  when  it  took 
formal  control  of  the  International  Security  Assistance  Force,  which  had  originally 
been  established  under  UK  leadership  in  January  2002.  It  was  in  the  autumn  of 
2003  that  an  upsurge  of  violence  began  as  part  of  a  deteriorating  security 
situation.44  Since  2006  ISAF  has  undertaken  an  expanded  range  of  responsibilities 
in  Afghanistan,  involving  combat  as  well  as  peacekeeping,  in  an  expanded  area  that 
includes  provinces  in  which  conflict  is  ongoing. 

ISAF's  notably  broad  UN  Security  Council  mandate  involves  it  in  a  wide  range 
of  activities,  including  military  and  police  training.  Many  of  its  activities  are  car- 
ried out  through  Provincial  Reconstruction  Teams  (PRTs) — civilian -military 
units  of  varying  sizes  designed  to  extend  the  authority  of  the  central  government, 
provide  security  and  undertake  infrastructure  projects.  There  are  twenty-six  PRTs 


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Adam  Roberts 


in  twenty-six  of  the  country's  thirty-four  provinces.  Operating  under  different 
lead  States,  with  twelve  of  the  twenty-six  led  by  the  United  States,  the  PRTs'  re- 
sources and  tasks  have  varied  greatly. 

Not  surprisingly,  there  have  been  controversies  about  numerous  aspects  of  the 
overall  ISAF  mission.  Four  key  problems  concern  the  coherence  or  otherwise  of  the 
policies  of  the  different  members  of  ISAF,  the  problematic  command  and  control 
arrangements,  differences  over  detainee  treatment,  and  the  difficulty  of  raising 
forces. 

The  lack  of  coherence  of  the  approaches  taken  by  different  foreign  forces  in 
ISAF  and  their  governments  at  home  is  evident.  Different  contributing  States  have 
different  visions  of  ISAF's  role.  The  most  obvious  difference  is  that  the  United 
States,  United  Kingdom  and  Canada  tend  to  see  it,  albeit  with  some  variations 
within  each  of  these  countries,  as  a  stability  operation,  encompassing  counterin- 
surgency  actions,  while  Germany  and  some  others  see  it  more  through  the  lens  of  a 
peacekeeping  or  peacebuilding  mission.  These  positions  are  not  polar  opposites, 
and  each  may  have  validity  in  different  provinces  of  Afghanistan,  but  the  clash  of 
perspective  on  this  issue  does  not  assist  cooperation  of  forces  in  difficult  opera- 
tions. Daniel  Marston  has  gone  so  far  as  to  conclude:  "As  of  2007,  the  main  prob- 
lem impeding  coalition  forces'  successful  application  of  counterinsurgency  was 
decentralization  of  responsibility."45 

The  complexity  of  the  command  and  control  arrangements  in  Afghanistan  is 
greater  than  that  in  past  counterinsurgency  campaigns.  Debates  about  this  have  in- 
evitably reflected  the  US  desire  that  more  contingents  in  ISAF  should  become  di- 
rectly involved  in  combat  operations,  and  the  concern  of  some  contributors  that 
this  should  not  happen.  Although  ISAF  is  now  under  a  US  commander,  and  the 
continuous  rotation  of  senior  posts  is  ceasing,  the  arrangements  for  coordinating 
the  work  of  these  distinct  forces  continue  to  pose  problems.46 

The  important,  and  scandal-ridden,  matter  of  treatment  of  detainees  is  another 
issue  on  which  there  are  differences  of  approach.  Anxious  not  to  be  associated  with 
shocking  US  statements  and  practices  in  this  matter,  and  insufficiently  staffed  and 
equipped  to  hold  on  to  the  prisoners  they  capture,  other  NATO  members  have 
drawn  up  separate  agreements  with  the  Afghan  authorities  embodying  a  variety  of 
different  approaches  to  how  they  should  be  treated  once  in  Afghan  hands.  There 
are  serious  concerns  that  some  detainees  handed  over  to  the  Afghan  authorities  on 
this  basis  have  been  maltreated.47 

The  provision  of  forces  in  the  numbers  required  for  ISAF  has  been  a  highly 
contentious  matter  within  NATO  States.  The  coalition  of  forces  acting  in  support 
of  the  Afghan  government  consists  of  three  basic  elements.  The  first  is  the  Afghan 
National  Army  which  has  been  largely  re-created  in  this  decade  with  the  help  of 

21 


Afghanistan  and  International  Security 


the  United  States  and  other  NATO  countries.  With  a  manpower  level  of  over  sev- 
enty thousand,  its  relatively  modest  size  has  led  to  US  accusations  that  the  Afghan 
government  has  been  slow  in  building  up  its  army.  The  second  is  ISAF,  which  now 
comprises  some  51,350  troops  from  forty  NATO  and  non-NATO  countries. 
Much  the  largest  contingents  are  those  of  the  United  States,  with  19,950  troops, 
and  the  United  Kingdom,  with  8,745.  The  third  basic  element  is  the  force  of  well 
over  ten  thousand  troops  (almost  all  of  them  American)  who  are  part  of  the  US 
Operation  Enduring  Freedom,  which  focuses  particularly  on  the  counterterrorist 
mission  in  Afghanistan.48  Granted  the  scale  of  the  problems  in  Afghanistan,  all 
these  numbers  are  widely  seen  as  low,  yet  in  many  NATO  member  States  there  is  a 
reluctance  to  increase  the  commitment.  Opinion  polls  in  five  NATO  member 
States  with  a  high  level  of  involvement  in  Afghanistan  show  the  public  to  be  highly 
skeptical  about  it.49  An  increase  in  such  numbers  risks  running  into  opposition  in 
many  NATO  States,  and  also  further  antagonizing  Afghan  opinion.  If  counterin- 
surgency  theory  is  a  guide,  and  the  whole  country  was  seen  as  a  theater  of  war,  a 
massive  increase  in  such  numbers  would  seem  to  be  called  for. 
So  how  reliable  a  guide  is  the  writing  on  counterinsurgency? 

Counterinsurgency  Doctrines  and  Practice 

Contrary  to  myth,  counterinsurgency  campaigns  can  sometimes  be  effective.  Doc- 
trines and  practices  of  counterinsurgency — the  best  of  which  draw  on  a  wide  and 
varied  range  of  practice — have  a  long  history.50  The  revival  of  COIN  doctrine  in  the 
past  few  years  has  been  driven  primarily  by  events  in  Iraq,  but  also,  if  to  a  lesser  de- 
gree, by  the  development  of  the  insurgency  in  Afghanistan.  This  revival  of  COIN 
doctrine  is  hardly  surprising.  The  response  of  adversaries  to  the  extraordinary  pat- 
tern of  US  dominance  on  the  battlefield  was  always  going  to  be  one  of  unconven- 
tional warfare,  including  the  methods  of  the  guerrilla  and  the  terrorist;  and,  in 
turn,  the  natural  US  counter-response  was  to  revive  the  most  obviously  appropri- 
ate available  body  of  military  doctrine. 

The  key  document  of  the  US  revival  of  COIN  doctrine  is  the  US  Army  Field 
Manual  3-24  (FM  3-24). 51  It  is  very  much  an  Army  and  Marine  Corps  manual:  the 
Air  Force  refused  to  collaborate  in  the  exercise.  Improbably  for  a  military-doctrinal 
document,  it  has  been  in  demand  in  the  United  States.  It  has  been  heavily  accessed 
and  downloaded  on  the  web,  is  also  available  as  a  published  book  from  a  major  uni- 
versity press52  and  was  the  first  army  publication  to  receive  a  review  in  the  New 
York  Times.53  Although  it  has  some  flaws,  explored  further  below,  it  is  a  significant 
contribution  to  COIN  literature. 

By  contrast,  the  United  Kingdom  has  not  yet  produced  a  major  new  manual. 
This  is  partly  because,  much  more  than  their  US  counterparts,  the  British  had 

22 


Adam  Roberts 


extant  doctrine.54  It  is  also  because  there  was  some  opposition  to  COIN  doctrine 
on  the  grounds  that  it  would  result  in  the  same  hammer  being  used  on  every  prob- 
lem. As  a  result  there  has  not  yet  been  a  UK  equivalent  of  FM  3-24.  The  Ministry  of 
Defence's  short  (23  pages)  Joint  Discussion  Note  of  January  2006,  The  Comprehen- 
sive Approach,  is  a  more  general  survey  intended  to  be  relevant  to  a  wide  range  of 
operations:  the  word  "counterinsurgency"  does  not  appear  in  it.55  It  was  followed 
in  2007  by  a  paper  entitled  Countering  Irregular  Activity.56  This  document,  which 
has  not  gone  into  general  public  circulation  and  has  not  been  greeted  with  enthusi- 
asm in  the  army,  "seeks  to  instruct  military  personnel  about  counterinsurgency  as 
a  whole  and  about  associated  threats,  and  emphasizes  the  need  for  military  activity 
to  be  part  of  a  comprehensive  approach  involving  all  instruments  of  power."57  This 
summary,  by  Sir  John  Kiszely,  until  2008  Director  of  the  Defence  Academy  of  the 
United  Kingdom,  is  immediately  followed  by  a  down-to-earth  reminder  that  "ev- 
ery insurgency  is  sui  generis,  making  generalizations  problematic."58  This  impor- 
tant point  has  been  emphasized  by  military  professionals  on  both  sides  of  the 
Atlantic. 

The  "comprehensive  approach,"  which  is  central  to  both  the  US  and  UK  doc- 
trines, essentially  means  the  application  of  all  aspects  of  the  power  of  the  State 
within  the  territory  where  the  insurgency  is  being  fought.  The  apparent  assump- 
tion that  there  is  a  State  with  real  power  is  the  key  weakness  of  the  approach,  espe- 
cially as  it  applies  to  Afghanistan.  Before  exploring  this  in  more  detail,  it  may  be 
useful  to  glance  at  the  problematic  nature  of  assumptions  about  the  political  realm 
in  the  counterinsurgency  doctrines  inherited  from  past  eras. 

The  US  manual  revives  and  updates  doctrines  that  were  developed  in  the  Cold 
War  years  in  response  to  anti-colonial  insurrections  (some  of  them  involving  lead- 
ership by  local  communist  parties).  It  relies  especially  heavily  on  two  sources  from 
that  era.59  The  first  is  David  Galula's  Counterinsurgency  Warfare,  one  of  the  better 
writings  of  the  French  thinkers  on  guerre  revolutionnaire.60  The  second  is  Sir  Robert 
Thompson's  Defeating  Communist  Insurgency.61  Both  works  had  placed  emphasis 
on  protecting  populations  as  distinct  from  killing  adversaries — a  crucial  distinc- 
tion which  implies  a  need  for  high  force  levels. 

According  to  the  introduction,  FM  3-24  aspires  to  "help  prepare  Army  and  Ma- 
rine Corps  leaders  to  conduct  COIN  operations  anywhere  in  the  world."62  This 
might  seem  to  imply  a  universalist  approach,  but  the  authors  emphasize  that  each 
insurgency  is  different.  The  foreword  by  Generals  Petraeus  and  Amos  is  emphatic 
on  this  point:  "You  cannot  fight  former  Saddamists  and  Islamic  extremists  the 
same  way  you  would  have  fought  the  Viet  Cong,  Moros  or  Tupamaros;  the  appli- 
cation of  principles  and  fundamentals  to  deal  with  each  varies  considerably."63  FM 
3-24  is  also  emphatic  on  the  importance  of  constantly  learning  and  adapting  in 

23 


Afghanistan  and  International  Security 


response  to  the  intricate  environment  of  COIN  operations,  a  point  which  strongly 
reflects  British  experience.64 

Past  exponents  of  COIN  doctrine  have  generally  placed  heavy  emphasis  on 
achieving  force  ratios  of  about  twenty  to  twenty-five  counterinsurgents  for  every 
one  thousand  residents  in  an  area  of  operations.  Noting  this,  the  manual  states: 
"Twenty  counterinsurgents  per  1000  residents  is  often  considered  the  minimum 
troop  density  required  for  effective  COIN  operations;  however  as  with  any  fixed 
ratio,  such  calculations  remain  very  dependent  upon  the  situation."65  This  empha- 
sis on  force  ratios  is  controversial.  In  any  case,  in  Afghanistan  there  appears  little 
chance  of  achieving  such  numbers.  If  the  entire  country  with  its  thirty- two  million 
inhabitants  were  to  be  viewed  as  the  area  of  operations,  a  staggering  eight  hundred 
thousand  counterinsurgents  could  be  needed.66  Even  if  the  area  of  operations  is  de- 
fined narrowly,  and  even  allowing  for  the  fact  that  not  all  have  to  be  NATO  troops, 
the  prospects  of  getting  close  to  the  force  ratio  indicated  must  be  low. 

A  flaw  in  some,  but  not  all,  past  counterinsurgency  doctrine  has  been  a  lack  of 
sensitivity  to  context  and,  in  some  cases,  an  ahistorical  character.  Some  specialists 
in  counterinsurgency  have  seen  their  subject  more  as  a  struggle  of  light  versus 
darkness  than  as  a  recurrent  theme  of  history  or  an  outgrowth  of  the  problems  of  a 
society.  Examples  of  such  an  ahistorical  approach  to  the  subject  can  be  found  in  the 
French  group  of  theorists  writing  in  the  1950s  and  early  1960s  about  guerre 
revolutionnaire.  Some  of  these  theorists  denied  the  complexities — especially  the 
mixture  of  material,  moral  and  ideological  factors — that  are  keys  to  understanding 
why  and  how  guerrilla  and  terrorist  movements  come  into  existence.  Colonel 
Lacheroy,  a  leading  figure  in  this  group  and  head  of  the  French  Army's  Service 
d' Action  Psychologique,  famously  stated:  "In  the  beginning  there  is  nothing."67  Ter- 
rorism was  seen  as  having  been  introduced  deliberately  into  a  peaceful  society  by 
an  omnipresent  outside  force — namely  international  communism.  It  is  a  demon- 
ological  vision  of  a  cosmic  struggle  in  which  the  actual  history  of  particular  coun- 
tries and  ways  of  thinking  has  little  or  no  place. 

A  related  fault  in  some  counterinsurgency  writing  was  the  tendency  to  distil 
general  rules  of  counterinsurgency  from  particular  struggles  and  then  seek  to  apply 
them  in  radically  different  circumstances.  The  campaign  in  Malaya  in  the  1950s, 
because  it  was  successful  in  ending  a  communist-led  insurgency,  was  often  upheld 
as  a  model,  and  is  described  favorably  in  the  US  Field  Manual.68  Certain  lessons 
drawn  partly  from  Malaya  were  subsequently  applied  by  the  British  in  Borneo  and 
Oman  with  some  effect.  However,  successes  such  as  that  in  Malaya  can  be  great  de- 
ceivers. Attempts  were  made  to  apply  the  lessons  of  Malaya  in  South  Vietnam  in 
the  1960s.69  These  largely  failed.  The  main  reason  for  failure  in  South  Vietnam  was 
that  conditions  in  Vietnam  were  utterly  different  from  those  in  Malaya.  In  Malaya 

24 


Adam  Roberts 


the  insurgency  had  mainly  involved  the  ethnic  Chinese  minority  and  had  never 
managed  to  present  itself  convincingly  as  representing  the  totality  of  the  inhabit- 
ants of  Malaya.  The  insurgency  was  weakened  by  the  facts  that  the  Chinese  minor- 
ity was  distinguishable  from  other  segments  of  society;  Malaya  had  no  common 
frontier  with  a  communist  State,  so  infiltration  was  difficult;  and  the  British  grant- 
ing of  independence  to  Malaya  undermined  the  anti-colonial  credentials  of  the  in- 
surgents. In  South  Vietnam,  by  contrast,  the  communist  insurgents  had  strong 
nationalist  credentials,  having  fought  for  independence  rather  than  merely  having 
power  handed  to  them  by  a  departing  colonial  power.70  At  the  heart  of  the  US  trag- 
edy in  Vietnam  was  a  failure  to  recognize  the  unique  circumstance  of  the  case,  that 
in  Vietnam,  more  than  any  other  country  in  Southeast  Asia,  communism  and  na- 
tionalism were  inextricably  intertwined. 

One  lesson  that  could  have  been  drawn  from  the  Malayan  case  is  that  it  is  some- 
times necessary  to  withdraw  to  win.  FM  3-24  places  much  emphasis  on  the  fact  that 
the  United  States  withdrew  from  Vietnam  in  1973  only  to  see  Saigon  fall  to  North 
Vietnamese  forces  in  1975.71  It  does  not  note  a  contrary  case:  it  was  the  UK  promise 
to  withdraw  completely — a  promise  that  was  followed  by  the  Federation  of  Ma- 
laya's independence  in  1957 — that  contributed  to  the  defeat  of  the  insurgency  in 
Malaya.72  The  value  of  such  promises  needs  to  be  taken  into  account  in  contempo- 
rary COIN  efforts  and  indeed  COIN  theory.  This  is  especially  so,  as  the  idea  that  the 
United  States  intended  to  stay  indefinitely  in  Iraq  and  Afghanistan,  as  evidenced  by 
the  networks  of  bases  built  there,  had  a  corrosive  effect  in  both  countries  and  more 
generally.  The  decision  of  the  Iraqi  cabinet  on  November  16, 2008  that  all  US  forces 
will  withdraw  from  Iraq  by  201 1  is  evidence  that  a  guarantee  of  withdrawal  is  seen 
as  a  necessary  condition  (and  not  simply  a  natural  consequence)  of  ending  an  acute 
phase  of  insurgency. 

One  weakness  in  the  US  manual,  likely  to  be  remedied  in  any  future  revisions,  is 
the  lack  of  serious  coverage  of  systems  of  justice,  especially  those  employed  by  the 
insurgents  themselves.  The  references  to  judicial  systems  in  FM  3-24  are  brief  and 
anodyne,  almost  entirely  ignoring  the  challenge  posed  by  insurgents  in  this  area.73 
Insurgencies  commonly  use  their  own  judicial  procedures  to  reinforce  their  claims 
to  be  able  to  preserve  an  existing  social  order  or  create  a  better  one.  The  Taliban 
have  always  placed  emphasis  on  provision  of  a  system  of  Islamic  justice.74  In  the 
current  conflict,  taking  advantage  of  the  fact  that  the  governmental  legal  system  is 
weak  and  corrupt,  they  have  done  this  effectively  in  parts  of  Afghanistan. 

This  leads  to  a  more  general  criticism.  In  addressing  the  problem  of  undermin- 
ing and  weakening  insurgencies,  both  traditional  COIN  theory  and  its  revived  ver- 
sions in  the  twenty- first  century  place  emphasis  on,  but  do  not  discuss  in  detail,  the 
role  of  State  institutions:  political  structures,  the  administrative  bureaucracy,  the 

25 


Afghanistan  and  International  Security 


police,  the  courts  and  the  armed  forces.  The  institutions  are  often  taken  for 
granted,  and  assumed  to  be  strong.  Indeed,  the  current  British  COIN  doctrine 
stemmed  from  a  project  started  in  1995  to  capture  the  lessons  and  doctrine  from 
Northern  Ireland.  A  common  criticism  of  much  COIN  practice  is  that  it  was  en- 
thusiastically pursued  by  over-powerful  and  thuggish  States,  especially  in  Latin 
America.75 

Today,  COIN  theories  risk  being  out  of  touch  with  the  realities  of  assisting  the 
so-called  "failed  States"  and  "transitional  administrations"  of  the  twenty-first 
century.  These  problems  are  not  new;  one  of  the  problems  that  undermined  US 
COIN  efforts  in  Vietnam  was  the  artificiality  and  weakness  of  the  coup-prone  State 
of  South  Vietnam.  Yet  the  central  fact  must  be  faced  that  in  the  two  test-beds  of  the 
new  COIN  doctrines  of  recent  years,  Iraq  and  Afghanistan,  State  institutions  have 
been  notoriously  weak — in  Iraq  temporarily,  and  in  Afghanistan  chronically.  Indeed, 
in  postcolonial  States  generally,  where  insurgencies  are  by  no  means  uncommon, 
indigenous  State  systems  tend  to  be  fragile  and/or  contested.  The  role  of  the  State 
in  people's  lives,  and  in  their  consciousness,  may  be  thoroughly  peripheral  or  even 
negative.76  So  when  the  US  manual  speaks  of  "a  comprehensive  strategy  employing 
all  instruments  of  national  power"  and  stresses  that  all  efforts  focus  on  "supporting 
the  local  populace  and  HN  [host  nation]  government,"77  it  is  necessary  to  remind 
ourselves  that  support  for  government  is  not  exactly  a  natural  default  position  for 
inhabitants  of  countries  with  such  tragic  histories  as  Iraq  and  Afghanistan.  On  the 
other  hand,  General  Petraeus  worked  on  the  manual  after  completing  two  tours  of 
duty  in  Iraq,  with  an  eye  to  applying  it  there,  and  then  did  so  to  some  effect  when  he 
was  commander  of  Multinational  Force-Iraq.  In  2008  the  Iraqi  government  is 
looking  stronger  than  in  the  first  years  after  the  invasion.  The  fact  that  a  govern- 
ment is  weak  in  the  face  of  an  insurgency  does  not  mean  that  it  is  necessarily  fated 
to  remain  so. 

Of  the  many  critiques  of  the  US  revival  of  COIN  doctrine,  one  of  the  most 
searching  is  an  American  Political  Science  Association  review  symposium  published 
in  June  2008.78  Stephen  Biddle  of  the  US  Council  on  Foreign  Relations  queried  the 
manual's  fundamental  assumption  when  he  stated  that 

it  is  far  from  clear  that  the  manual's  central  prescription  of  drying  up  an  insurgent's 
support  base  by  persuading  an  uncommitted  population  to  side  with  the  government 
makes  much  sense  in  an  identity  war  where  the  government's  ethnic  or  sectarian 
identification  means  that  it  will  be  seen  as  an  existential  threat  to  the  security  of  rival 
internal  groups,  and  where  there  may  be  little  or  no  supracommunal,  national  identity 
to  counterpose  to  the  subnational  identities  over  which  the  war  is  waged  by  the  time  the 
United  States  becomes  involved.79 


26 


Adam  Roberts 


Biddle  also  pointed  out  that  the  US  manual  has  little  to  say  about  the  comparative 
merits  of  waging  COIN  with  large  conventional  forces  as  against  small  commando 
detachments,  on  the  relative  utility  of  airpower  in  COIN,  and  on  the  willingness 
of  democracies  to  support  COIN  over  a  long  period.  Further,  the  manual  does 
not  fit  particularly  well  the  realities  of  Iraq,  where  the  insurgencies  are  far  more 
regional  and  localized  in  character,  and  more  fickle  in  their  loyalties,  than  were 
many  of  the  communist  and  anti-colonial  insurgencies  of  earlier  eras.  As  Biddle 
points  out,  the  negotiation  of  local  ceasefires  between  insurgents  and  US  com- 
manders has  been  of  key  importance  in  Iraq.80  Such  webs  of  local  ceasefires, 
valuable  despite  their  fragility,  do  not  come  from  counterinsurgency  doctrine. 
These  criticisms  are  another  way  of  saying  what  General  Petraeus  knows:  that  all 
doctrine  is  interim,  and  some  parts  are  more  interim  than  others. 

The  need  to  adapt  doctrine,  so  evident  in  Iraq,  applies  even  more  strongly  to 
Afghanistan,  a  subject  about  which  the  US  manual  says  remarkably  little.81  The  key 
issue  is  whether  the  revival  of  counterinsurgency  doctrine  really  offers  a  useful  guide 
in  a  situation  where  there  are  some  distinct  elements  in  the  insurgencies,  where 
negotiation  with  some  of  the  insurgents  may  have  a  role  and  where  the  State  does 
not  command  the  same  loyalty  or  obedience  that  more  local  forces  may  enjoy. 

After  a  difficult  year  in  2008,  the  US  and  Afghan  governments  began  to  place  in- 
creased emphasis  on  local  social  structures.  The  US  ambassador  to  Afghanistan 
said  at  the  end  of  the  year  that  there  was  agreement  to  move  forward  with  two  pro- 
grams: first,  the  community  outreach  program,  "designed  to  create  community 
shuras"  (local  councils);  and  second,  the  community  guard  program,  which  is 
"meant  to  strengthen  local  communities  and  local  tribes  in  their  ability  to  protect 
what  they  consider  to  be  their  traditional  homes."82  While  neither  program  was 
well  defined,  the  move  in  this  direction  was  evidence  of  willingness  to  rely  on  a  less 
State-based  approach  than  hitherto. 

Judging  Progress  in  the  War  in  Afghanistan 

Judging  progress  in  counterinsurgency  wars  is  by  nature  a  contentious  task,  and 
involves  difficult  questions  about  the  appropriate  methodologies.  Sometimes  un- 
orthodox methods  of  analysis  yield  the  most  valuable  answers.  The  war  in  French 
Indochina  from  1946  to  1954  provided  a  classic  case.  When  a  French  doctoral  student, 
Bernard  Fall  (1926-67),  went  to  Vietnam  in  1953,  the  French  authorities  claimed 
that  the  war  was  going  well,  and  showed  maps  and  statistics  indicating  that  they 
controlled  a  large  proportion  of  the  territory.  But  he  soon  realized  that  French 
claims  about  the  amount  of  territory  they  controlled  were  exaggerated,  or  at  least 
lacked  real  meaning  as  far  as  the  conduct  of  government  was  concerned.  He  reached 
this  conclusion  both  by  visiting  Vietminh-held  areas,  and  by  inspecting  tax  records 

27 


Afghanistan  and  International  Security 


in  supposedly  government-held  areas:  these  latter  showed  a  dramatic  collapse  in 
the  payment  of  taxes,  and  thus  indicated  a  lack  of  actual  government  control.83  In 
Afghanistan,  the  long-standing  lack  of  a  tax  collection  system  continues  today.  As 
Astri  Suhrke  has  shown,  taxation  constitutes  a  uniquely  small  proportion — in 
2005  it  was  only  8  percent — of  all  estimated  income  in  the  national  budget.84 

By  one  key  measure  serious  progress  may  appear  to  be  being  made  in  the  Afghan 
war.  The  numbers  of  refugee  returns  to  Afghanistan  since  the  fall  of  the  Taliban  re- 
gime at  the  end  of  2001  are  one  possible  indicator  of  a  degree  of  progress.  Accord- 
ing to  the  Office  of  the  UN  High  Commissioner  for  Refugees  (UNHCR),  which 
played  a  key  part  in  the  process,  between  January  1,  2002  and  December  31,  2007  a 
total  of  4,997,455  refugees  returned  to  Afghanistan,  as  follows: 


2002 

2003 

2004 

2005 

2006 

2007 

1,957,958 

645,864 

879,780 

752,084 

387,917 

373,852 

This  is  the  largest  refugee  return  in  the  world  in  a  generation.  It  is  striking  that 
even  in  2006,  2007  and  2008,  years  of  considerable  conflict  in  parts  of  Afghanistan, 
the  returns  continued,  if  at  a  reduced  rate.  In  the  whole  period  2002-07,  the  over- 
whelming majority  of  refugees  have  been  in  two  countries:  Iran,  from  which  1.6 
million  returned,  and  Pakistan,  from  which  3.3  million  returned.85  Impressive  as 
the  figures  of  this  return  are,  four  major  qualifications  have  to  be  made: 

•  First,  they  have  to  be  understood  against  the  backdrop  of  the  sheer  numbers 
of  Afghan  refugees:  at  the  end  of  2007  Afghanistan  was  still  the  leading  country  of 
origin  of  refugees  worldwide,  with  3.1  million  remaining  outside  the  country. 
Thus  in  2008,  even  after  these  returns,  Afghan  refugees  constitute  27  percent  of 
the  entire  global  refugee  population. 

•  Second,  not  all  returns  were  fully  voluntary.  Within  the  countries  of  asylum 
there  have  been  heavy  pressures  on  these  refugees  to  return,  including  the  closing 
of  some  camps. 

•  Third,  the  experience  of  many  returning  refugees  has  included  lack  of 
employment  opportunities  in  Afghanistan,  and  in  some  cases  involvement  in 
property  disputes.  There  has  been  mismanagement  and  corruption  in  the  Afghan 
Ministry  of  Refugees  and  Returnees.  Some  returnees  live  in  dire  conditions  in 
makeshift  settlements.  All  this  has  created  much  disappointment,  bitterness  and 
anti-government  feeling. 

•  Fourth,  displacement  continues.  In  the  past  two  years  unknown  numbers  of 
returnees  have  left  the  country  again.  Also  the  number  of  internally  displaced 
persons  (IDPs)  within  Afghanistan  has  increased,  especially  due  to  the  fighting  in 


28 


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the  south  of  the  country,  and  now  stands  at  about  235,000.  Some  returnees  have 
seamlessly  become  IDPs.86 

Other  developments  confirm  this  sobering  picture.  The  Afghan  army  remains 
relatively  small,  and  highly  dependent  on  outside  support.  As  for  the  insurgent 
forces,  they  appear  to  have  no  shortage  of  recruits.  Large  numbers  of  fighters  are 
able  to  cross  into  Afghanistan,  mainly  from  Pakistan;  and  the  Taliban  can  also 
employ  many  locals,  especially  in  seasons  when  other  work  is  in  short  supply.  The 
fact  that  the  estimated  unemployment  rate  is  40  percent  means  that  insurgents 
continue  to  have  opportunities  for  recruitment.  In  Kabul  and  other  cities,  terrorist 
attacks,  once  rare,  have  become  common.  Serious  observers  reported  an  atmo- 
sphere of  disappointment  and  bitterness  in  Afghanistan  in  2008. 87 

The  UN  Secretary- General's  report  of  September  2008  summarizes  the  situa- 
tion thus: 

The  overall  situation  in  Afghanistan  has  become  more  challenging  since  my  previous 
report.  Despite  the  enhanced  capabilities  of  both  the  Afghan  National  Army  and  the 
international  forces,  the  security  situation  has  deteriorated  markedly.  The  influence  of 
the  insurgency  has  expanded  beyond  traditionally  volatile  areas  and  has  increased  in 
provinces  neighboring  Kabul.  Incidents  stemming  from  cross-border  activities  from 
Pakistan  have  increased  significantly  in  terms  of  numbers  and  sophistication.  The 
insurgency's  dependence  on  asymmetric  tactics  has  also  led  to  a  sharp  rise  in  the 
number  of  civilian  casualties.  Civilians  are  also  being  killed  as  a  result  of  military 
operations  carried  out  by  Afghan  and  international  security  forces,  in  particular  in 
situations  in  which  insurgents  conceal  themselves  in  populated  areas.  Another 
worrying  development  is  the  fact  that  attacks  on  aid- related  targets  and  non- 
governmental organizations  have  become  more  frequent  and  more  deadly.88 

The  Secretary-General's  report  states  bluntly  that  the  number  of  security  inci- 
dents rose  to  983  in  August  2008,  the  highest  since  the  fall  of  the  Taliban  in  2001, 
and  "represents  a  44  percent  increase  compared  with  the  same  month  in  2007."  It 
also  states:  "While  the  main  focus  of  the  insurgency  remains  the  southern  and 
eastern  parts  of  the  country,  where  it  has  historically  been  strong,  insurgent  influ- 
ence has  intensified  in  areas  that  were  previously  relatively  calm,  including  in  the 
provinces  closest  to  Kabul."89  Overall  the  report  is  far  from  negative.  It  reports 
some  successes  in  the  campaign  against  poppy  cultivation,  and  it  strongly  en- 
dorses the  Afghanistan  National  Development  Strategy,  adopted  at  the  Paris  Con- 
ference in  Support  of  Afghanistan,  held  on  June  12,  2008.  However,  as  an  account 
of  the  state  of  progress  in  the  war  against  the  Taliban,  it  confirms  the  picture 
which  has  also  been  depicted  by  other  sources.  The  latter  include  the  sober  report 
of  General  David  McKiernan,  the  top  US  commander  in  Afghanistan,  who,  at  the 


29 


Afghanistan  and  International  Security 


same  time  as  he  was  seeking  specific  troop  increases,  rejected  simple  notions,  in- 
deed the  terminology,  of  a  military  "surge";90  and  the  US  National  Intelligence 
Estimate  on  Afghanistan,  a  draft  version  of  which  was  leaked  in  October  2008, 
which  stated  that  the  situation  there  was  in  a  "downward  spiral."91  One  grim  sta- 
tistic of  the  downward  spiral  is  the  casualty  rate  of  ISAF  and  Operation  Enduring 
Freedom  forces  in  Afghanistan.  Fatalities  have  increased  each  year  from  57  in 
2003  to  296  in  2008.92 

As  so  often  in  counterinsurgency  wars,  the  most  useful  assessments  may  be 
those  of  independent  witnesses  who,  just  as  Bernard  Fall  did  in  French  Indochina, 
have  deep  knowledge  of  a  society  and  a  healthy  open-mindedness  about  the  contri- 
bution that  outside  forces  can  make  to  security.  Rory  Stewart,  who  walked  across 
Afghanistan  in  2002,  and  later  retired  from  the  UK  diplomatic  service  to  run  a 
charitable  foundation  in  Kabul,  has  argued  that  "we  need  less  investment — but  a 
greater  focus  on  what  we  know  how  to  do."  He  is  specifically  critical  of  increases  in 
forces: 

A  troop  increase  is  likely  to  inflame  Afghan  nationalism  because  Afghans  are  more 
anti-foreign  than  we  acknowledge  and  the  support  for  our  presence  in  the  insurgency 
areas  is  declining.  The  Taliban,  which  was  a  largely  discredited  and  backward 
movement,  gains  support  by  portraying  itself  as  fighting  for  Islam  and  Afghanistan 
against  a  foreign  military  occupation."93 

V.  Conclusions 

Four  kinds  of  conclusions  follow.  First,  about  the  implications  of  Afghanistan  for 
the  UN;  second,  on  the  role  of  NATO;  third,  on  international  security  generally; 
and  finally,  on  the  debate  about  policy  choices  that  is  emerging  from  the  difficult 
experience  of  attempting  to  transform  Afghanistan.  These  conclusions  are  based 
on  the  presumption  that  the  present  campaign  in  Afghanistan  is  unlikely  to  result 
in  a  clear  victory  for  the  Kabul  government  and  its  outside  partners,  because  the 
sources  of  division  within  and  around  Afghanistan  are  just  too  deep,  and  the  ten- 
dency to  react  against  the  presence  of  foreign  forces  too  ingrained.  The  war  could 
yet  be  lost,  or,  perhaps  more  likely,  it  could  produce  a  stalemate  or  a  long  war  of  at- 
trition with  no  clear  outcome.  The  dissolution  of  Afghanistan  into  regional 
fiefdoms — already  an  accustomed  part  of  life — could  continue  and  even 
accelerate. 

To  some  it  may  appear  remarkable  that  Afghanistan  has  not  reverted  more 
completely  to  type  as  a  society  that  rejects  outside  intrusion.  Part  of  the  explanation 
may  be  that  this  is  not  the  only  natural  "default  position"  for  Afghans:  there  have 


30 


Adam  Roberts 


also  been  countless  episodes  in  which  Afghan  leaders  have  sought,  and  profited 
from,  alliances  with  outsiders.  A  second  factor  is  the  "light  footprint"  advocated  by 
Brahimi:  for  all  the  limitations  of  this  approach,  and  the  many  departures  from  it 
since  it  was  enunciated  in  2002  with  specific  reference  to  UNAMA,  no  one  has  con- 
vincingly suggested  a  better  one.  A  third  factor  is  that — notwithstanding  the  disas- 
trous killings  of  civilians  as  a  result  of  using  airpower — there  has  been  a  degree  of 
restraint  in  the  use  of  armed  force:  this  has  been  important  in  at  least  slowing  the 
pace  of  the  process  whereby  the  US  and  other  outside  forces  come  to  be  perceived 
as  alien  bodies  in  Afghanistan.  The  interesting  phenomenon  of  application  of  cer- 
tain parts  of  the  law  of  armed  conflict — namely  the  rules  of  targeting — as  if  this  was 
an  international  war  is  part  of  this  process. 

The  United  Nations 

A  few  conclusions  on  the  UN's  various  roles  in  Afghanistan  flow  from  this  brief 
survey.  First,  the  United  Nations  has  some  remarkable  achievements  to  its  credit  in 
Afghanistan.  It  helped  to  negotiate  the  Soviet  withdrawal  from  Afghanistan  that 
was  completed  in  1989;  ever  since  then  it  has  remained  engaged  on  the  ground  in 
Afghanistan;  it  gave  a  degree  of  authorization  to  the  US -led  effort  to  remove  the 
Taliban  regime  in  2001;  it  has  authorized  ISAF  and  has  provided  a  legitimate  basis 
for  its  expanded  roles  throughout  the  country;  it  has  been  involved  in  the  many 
subsequent  efforts  to  help  develop  Afghanistan,  not  least  by  assisting  in  the  various 
elections  held  there  since  2001;  and  it  has  assisted  the  largest  refugee  return  to  any 
country  since  the  1970s. 

Second,  despite  these  achievements,  the  UN's  roles  have  been  more  limited  than 
those  of  the  United  States  and  its  various  partners,  especially  in  matters  relating  to 
security.  The  fact  that  the  UN's  role  in  this  crisis  has  been  modest  is  not  especially 
shocking.  Neither  the  terms  of  the  UN  Charter  nor  the  record  of  the  Security 
Council  justifies  the  excessively  high  expectations  that  many  have  had  in  respect  to 
the  Council's  roles.  It  was  always  a  mistake  to  view  the  United  Nations  as  aiming  to 
provide  a  complete  system  of  collective  security  even  in  the  best  of  circumstances, 
and  circumstances  in  and  around  Afghanistan  are  far  from  being  favorable  for  in- 
ternational involvement. 

Third,  international  legitimacy  is  never  a  substitute  for  local  legitimacy.  The 
Council's  acceptance  of  regime  change  in  Afghanistan  was  justified  once  the 
Taliban  had  refused  to  remove  al-Qaeda,  and  did  much  to  legitimize  the  aim  of  re- 
gime replacement,  which  could  otherwise  have  seemed  a  narrowly  neo-colonial  US 
action.  Yet  there  is  a  danger  that  such  international  conferrals  of  legitimacy  can 
contribute  to  a  failure  to  address  the  no-less-important  question  of  securing 


31 


Afghanistan  and  International  Security 


legitimacy  in  the  eyes  of  the  audience  that  matters  most:  in  this  case,  the  peoples  of 
Afghanistan  and  neighboring  countries. 

NATO 

The  involvement  of  the  NATO  alliance  in  this  distant,  difficult  and  divisive  conflict 
could  have  fateful  consequences  for  the  alliance.  It  is  truly  remarkable  that  the  rep- 
utation of  the  longest-lived  military  alliance  in  the  world,  comprised  of  States  with 
fundamentally  stable  political  systems,  should  have  made  itself  vulnerable  to  the 
outcome  of  a  war  in  the  unpromising  surroundings  of  Afghanistan.  There  is  much 
nervousness  about  this  among  NATO's  European  members,  and  this  may  explain 
the  reluctance  of  European  leaders  to  make  the  kind  of  ringing  statements  that  of- 
ten accompany  war.  Knowing  that  the  outcome  of  any  adventure  in  Afghanistan  is 
bound  to  be  uncertain,  they  have  wisely  kept  the  level  of  rhetoric  low. 

There  may  be  another  reason  for  the  reluctance  of  many  leaders  of  European 
member  States  to  make  strong  endorsements  of  their  participation  in  the  war  in 
Afghanistan.  Many  of  the  claims  that  can  be  made  in  favor  of  the  Afghan  cause  are 
also  implicitly  criticisms  of  the  involvement  in  Iraq.  From  the  start  in  2001,  the  US- 
led  involvement  in  Afghanistan  and  the  subsequent  involvement  of  ISAF  have  both 
had  a  strong  basis  of  international  legitimacy  that  was  reflected  in  Security  Council 
resolutions.  In  Afghanistan  there  was  a  real  political  and  military  force  to  support, 
in  the  shape  of  the  Northern  Alliance.  In  Afghanistan  and  Pakistan  there  were  real 
havens  for  terrorists.  In  Afghanistan,  up  to  five  million  refugees  have  returned 
since  2001.  To  speak  about  these  matters  too  loudly  might  be  to  undermine  the  US 
position  in  Iraq,  where  the  origins  and  course  of  the  outside  involvement  have 
been  different,  and  where  the  flow  of  refugees  has  been  outward.  NATO  leaders, 
anxious  to  put  the  recriminations  of  2003  over  Iraq  behind  them,  may  be  nervous 
about  highlighting  the  differences  between  Afghanistan  and  Iraq. 

A  major  question,  heavy  with  implications  for  international  security,  is:  how  are 
the  setbacks  experienced  in  Afghanistan  to  be  explained,  especially  within  NATO 
member  States?  The  United  Nations  may  be  accustomed  to  failure,  but  NATO  is 
not.  So  far,  the  tendency  has  been  to  blame  Pakistan,  the  messy  NATO  command, 
the  poor  attention  span  of  consecutive  US  governments,  the  unwillingness  of 
NATO  allies  to  contribute,  the  weakness  of  Karzai,  the  corruption  of  his  govern- 
ment, the  shortage  of  foreign  money  and  troops;  in  other  words,  to  blame  almost 
everything  except  the  nature  of  the  project. 

The  various  reasons  that  have  been  given  cannot  be  lightly  dismissed.  For  exam- 
ple, the  lack  of  NATO  unity  in  certain  operational  matters  has  been  striking:  the  in- 
ability of  member  States  to  agree  on  a  straightforward  and  defensible  common  set 
of  standards  for  treating  prisoners  in  the  Afghan  operations  is  symptomatic  of  deep 

32 


Adam  Roberts 


divisions  within  the  alliance.  Political  divisions  have  never  been  far  from  the  sur- 
face and  will  no  doubt  be  projected  into  future  explanations  of  what  went  wrong. 
Continental  Europeans  can  convincingly  blame  the  Americans  and  the  British  for 
having  taken  their  eye  off  the  ball  in  Afghanistan  in  2002-03,  foolishly  thinking 
that  the  war  there  was  virtually  won  and  that  they  could  afford  to  rush  into  a  second 
adventure  in  Iraq.  Americans  can  blame  the  Europeans  for  putting  relatively  few 
troops  into  ISAF,  and  being  slow  to  back  them  up  when  the  going  got  rough  in 
2006-08.  A  less  blame-centered  explanation  might  be  that  the  reconstruction  of 
Afghanistan,  and  the  pursuit  of  counterinsurgency  there,  was  always  going  to  be  an 
extremely  difficult  task;  that  there  are  limits  to  what  outsiders  should  expect  to 
achieve  in  the  transformation  of  distant  societies  with  cultures  significantly  differ- 
ent from  our  own;  and  that  it  never  made  sense  to  invest  such  effort  in  counterin- 
surgency in  Afghanistan  without  having  even  the  beginnings  of  a  strategy  for  the 
neighboring  regions  of  Pakistan. 

Impact  on  International  Security 

The  problem  of  Afghanistan — including  the  complex  interplay  of  international  ac- 
tors who  have  pursued  their  interests  there — has  had  an  impressive  and  multifac- 
eted  impact  on  international  security  issues  in  the  past  generation.  It  contributed 
to  the  end  of  the  Cold  War  and  indeed  of  the  Soviet  Union  itself.  It  assisted,  and 
continues  to  assist,  the  rise  and  proliferation  of  Islamic  militants  around  the  globe. 
The  Taliban  regime's  failure  to  control  al-Qaeda  activities  launched  the  United 
States  into  the  huge  and  seemingly  endless  "War  on  Terror,"  led  to  the  United 
States  acquiring  unprecedented  access  to  Central  Asia,  and  also  resulted  in  the  Se- 
curity Council  claiming  unprecedented  powers  to  affect  activities  within  States. 
The  Afghan  war  has  embroiled  NATO  in  a  largely  civil  war  thousands  of  miles  from 
its  North  Atlantic  heartlands.  It  also  threatens  to  destabilize  Pakistan.  Even  worse, 
by  feeding  the  mutual  suspicion  between  India  and  Pakistan,  and  opening  up  an- 
other front  in  their  long-standing  rivalry,  it  makes  war  between  these  two  nuclear 
powers  a  distinct  possibility. 

One  impact  of  Afghanistan  on  international  security  may  turn  out  to  be  highly 
paradoxical.  It  is  obvious  that  Afghanistan,  along  with  Iraq,  has  called  into  ques- 
tion the  idea  that  the  United  States,  in  its  supposed  "unipolar  moment,"  could 
change  even  the  most  difficult  and  divided  societies  by  its  confident  use  of  armed 
force.  But  it  is  not  only  the  ideas  of  the  neo-conservatives  and  their  camp-followers 
that  are  in  trouble.  In  many  ways  the  involvement  of  NATO  in  Afghanistan  was 
textbook  liberal  multilateralism:  implicitly  approved  by  the  UN  Security  Council, 
involving  troops  from  forty  democracies,  cooperating  with  the  UN  assistance  mis- 
sion, and  pursuing  admirable  aims  to  assist  the  development  and  modernization  of 

33 


Afghanistan  and  International  Security 


Afghanistan.  The  very  ideas  of  rebuilding  the  world  in  our  image,  and  of  major 
Western  States  having  an  obligation  to  achieve  these  tasks  in  distant  lands — 
whether  by  unilateral  or  multilateral  approaches — may  come  to  be  viewed  as  opti- 
mistic. Or,  to  put  it  differently,  and  somewhat  cryptically,  Afghanistan  may  not 
have  quite  such  a  drastic  effect  on  the  American  imperium  as  it  had  on  the  Soviet 
one  in  the  years  up  to  1991;  but  it  may  nevertheless  come  to  be  seen  as  one  impor- 
tant stage  on  the  path  in  which  international  order  became,  certainly  not  unipolar, 
and  perhaps  not  even  multipolar,  but  based  more  on  prudent  interest  than  on  illu- 
sions that  Western  ideas  control  the  world.  Afghanistan,  like  Somalia,  may  con- 
tribute to  greater  caution  before  engaging  in  interventionist  projects  aimed  at 
reconstructing  divided  societies.  Whether  this  is  a  cause  for  celebration  or  regret 
may  be  debated:  in  1994  Tutsis  in  Rwanda  had  good  reason  to  rue  the  US  caution 
that  resulted  from  the  Somalia  debacle. 

Despite  all  the  difficulties  encountered  in  Afghanistan  since  the  fall  of  the 
Taliban  in  2001,  in  the  US  presidential  election  campaign  in  2008  both  Barack 
Obama  and  John  McCain  promised  to  increase  the  US  commitment  to  Afghani- 
stan in  2009.  There  was  little  prospect  either  that  the  insurgency  would  subside  or 
that  the  United  States  would  tiptoe  out  of  the  war.  Furthermore,  both  candidates 
advocated  continuing  and  even  extending  the  practice  of  using  US  force  against 
Taliban  and  al-Qaeda  targets  in  Pakistan.  The  war's  international  dimension,  and 
its  significance  for  international  security  more  generally,  was  set  to  continue. 

The  Debate  on  Policy  Choices 

The  Obama  administration's  policy  planning  for  Afghanistan  is  based  on  the 
sound  presumption  that  the  Afghan  problem  cannot  be  addressed  in  isolation.  Al- 
though many  countries  have  a  potentially  important  role  in  any  settlement  in  Af- 
ghanistan— especially  Iran,  with  its  large  numbers  of  Afghan  refugees  and  its  major 
drug  problem — Pakistan  is  at  the  core  of  this  approach.  Granted  the  indissoluble 
connection  between  Afghanistan  and  Pakistan,  any  policy  in  respect  to  the  one  has 
to  be  framed  in  light  of  its  effects  on  the  other.  At  times  it  may  even  be  necessary  to 
prioritize  between  these  two  countries.  The  simple  truth  is  that  Pakistan  is  a  far 
larger,  more  powerful  and  generally  more  important  country  than  Afghanistan.  If 
the  price  of  saving  Afghanistan  were  to  be  the  destabilization  of  Pakistan,  it  would 
not  be  worth  paying.  A  principal  aim  of  the  United  States  in  the  region  should  have 
been,  and  indeed  may  have  been,  to  avoid  creating  a  situation  in  which  that  partic- 
ular price  has  to  be  paid:  yet  at  least  once  before,  in  the  Soviet- Afghan  war  in  the 
1980s,  something  very  like  it  happened. 

The  main  conclusion  of  any  consideration  of  the  Pakistani  factor  in  the  ongoing 
conflict  in  Afghanistan  has  to  be  that  the  policy  of  the  United  States  and  allies — to 

34 


Adam  Roberts 


strengthen  central  government  in  both  countries — has  been  operating  in  ex- 
tremely difficult  circumstances,  has  been  pursued  erratically  and  has  been  largely 
unsuccessful.  While  it  is  not  obvious  what  the  alternatives  might  be — open  accep- 
tance of  regional  autonomy  in  both  societies  would  have  some  merits — the  general 
approach  of  backing  non-Pashtuns  in  Pakistan  and  Afghanistan  risks  exacerbating 
the  Pashtun  problem  in  both  countries.  Three  distinct  causes — Pashtun,  Taliban 
and  al-Qaeda — have  become  dangerously  conflated.  It  should  be  a  first  aim  of 
Western  policy  to  reverse  this  dangerous  trend. 

Because  of  the  grim  prospects  of  a  stalemate,  a  war  of  attrition  or  worse  in  Af- 
ghanistan, and  also  because  of  the  advent  of  new  governments  in  Pakistan  in  2008 
and  the  United  States  in  2009,  there  has  been  at  least  the  beginning  of  consider- 
ation of  alternative  policies.  Two  stand  out:  each  in  its  way  addresses  directly  the 
growth  of  the  insurgency  and  each  is  based  on  a  recognition  that  the  Pakistani  di- 
mension of  the  problem  has  to  be  considered  alongside  the  Afghan  one.  Both  op- 
tions take  into  account  the  central  requirement  of  any  approach — that  it  be  geared 
to  ensuring  that  neither  Afghanistan  nor  Pakistan  offers  the  kind  of  haven  for  orga- 
nizing international  terrorist  actions  that  Afghanistan  did  under  Taliban  rule. 

The  first  option  centers  on  negotiation  with  Taliban  and  other  Pashtun  groups. 
The  first  question  to  be  faced  is  whether,  on  either  side  of  the  border,  there  are  suf- 
ficiently clear  hierarchical  organizational  structures  with  which  to  negotiate.  The 
second  question  is  whether  Afghan  Taliban/Pashtun  goals  are  framed  more  in 
terms  of  control  of  the  Afghan  State  along  the  completely  uncompromising  lines 
followed  by  the  Taliban  in  the  years  up  to  200 1 ,  or  in  more  limited  terms.  Whatever 
the  answers,  negotiation  in  some  form  with  some  of  the  insurgent  groups  and  fac- 
tions is  inevitable.  Indeed,  in  an  informal  manner  some  is  already  happening. 
Combining  fighting  with  talking  is  quite  common  in  insurgencies,  not  least  be- 
cause of  their  tendency  to  result  in  stalemate.  Yet  it  is  never  easy,  and  is  likely  to  be 
particularly  difficult  for  those  on  both  sides  who  have  chosen  to  see  the  war  in  Af- 
ghanistan as  a  war  of  good  against  evil.  It  is  also  likely  to  be  difficult  if,  as  at  present, 
the  Taliban  believe  they  are  in  a  position  of  strength.  A  critical  question  to  be  ex- 
plored in  any  talks  is  whether,  as  some  evidence  suggests,  Taliban  leaders  have 
learned  enough  from  their  disasters  since  seizing  Kabul  in  1996,  and  in  particular 
from  their  near-death  experience  in  2001,  to  be  willing  to  operate  in  a  different 
manner  in  today's  Afghanistan.94  The  continuing  commitment  of  the  Taliban  in 
Pakistan  to  destroying  government  schools,  and  its  opposition  to  education  for 
girls,  does  not  inspire  confidence.  The  scope  and  content  of  any  agreement  are 
matters  of  huge  difficulty.  Some  agreements  concluded  by  the  Pakistani  govern- 
ment in  the  past  few  years  are  widely  seen  as  having  given  Taliban  leaders  a  license 
to  continue  supporting  the  insurgency  in  Afghanistan.  This  serves  as  a  warning  of 

35 


Afghanistan  and  International  Security 


the  hazards  of  partial  negotiation.  Yet  the  pressures  for  negotiation  are  very  strong, 
and  a  refusal  to  consider  this  course  could  have  adverse  effects  in  both  countries. 

In  October  2008,  after  a  two-week  debate  that  was  not  always  well  attended,  the 
Pakistani  Parliament  passed  unanimously  a  resolution  widely  interpreted  as  suggest- 
ing above  all  a  shift  to  negotiation.  Actually  it  was  a  complex  package,  in  which  the 
Parliament  united  to  condemn  terrorism  and  at  the  same  time  was  seen  as  "taking 
ownership"  of  policy  to  tackle  it.  The  Resolution  said  that  regions  on  the  Afghan 
border  where  militants  flourish  should  be  developed,  and  force  used  as  a  last  resort. 
It  opposed  the  cross-border  strikes  by  US  forces  in  Pakistan,  but  at  the  same  time 
indicated  a  degree  of  support  for  US  policy.  It  called  for  dialogue  with  extremist 
groups  operating  in  the  country,  and  hinted  at  a  fundamental  change  in  Pakistan's 
approach  to  the  problem:  "We  need  an  urgent  review  of  our  national  security  strat- 
egy and  revisiting  the  methodology  of  combating  terrorism  in  order  to  restore  peace 
and  stability."95  At  the  very  least  it  provides  one  basis  for  the  Obama  administration 
to  recalibrate  the  United  States's  largely  burnt-out  policies  toward  Pakistan. 

The  second  option  under  discussion  involves  a  fundamental  rethinking  of  secu- 
rity strategy  in  both  Afghanistan  and  Pakistan.  On  the  Afghan  side  of  the  border  it 
would  call  for  some  increase  in  ISAF  or  other  outside  forces,  especially  to  speed  up 
the  pace  of  expansion  of  the  Afghan  army,  and  thereby  to  provide  backup  so  that 
certain  areas  from  which  the  Taliban  have  been  expelled  can  thereafter  be  pro- 
tected. It  would  also  call  for  cooperation  in  security  matters  with  local  forces  and 
councils,  with  all  the  hazards  involved.  One  informed  and  persuasive  critique  of 
the  approach  to  counterinsurgency  used  in  Afghanistan  since  2003  suggests  that  its 
emphasis  on  extending  the  reach  of  central  government  is  precisely  the  wrong 
strategy:  its  authors,  specialists  in  the  region,  argue  instead  for  a  rural  security  pres- 
ence that  has  been  largely  lacking.96  A  security  strategy  based  on  local  forces  and 
councils  would  also  call  for  expansion  of  aid  and  development  programs,  especially 
in  urgent  matters  such  as  food  aid  in  areas  threatened  by  famine,  and  for  a  serious 
effort  to  address  the  widespread  corruption  which  makes  a  continuous  mockery  of 
Western  attempts  to  bring  reform  and  progress  to  Afghanistan.  On  the  Pakistani 
side  it  would  involve  a  protracted  effort  to  develop  a  long-term  policy — hitherto 
non-existent — for  establishing  some  kind  of  government  influence  in  the  FATA, 
and  for  a  joined-up  policy  for  addressing  the  Taliban  and  al-Qaeda  presence.  On 
both  sides  of  the  border  it  would  necessitate  reining  in  the  use  of  airpower  to  re- 
duce its  inflammation  of  local  opinion. 

For  reasons  indicated  in  this  article,  it  is  highly  improbable  that  either  of  these 
options  on  its  own  could  provide  a  substantial  amelioration  of  a  tangled  and  tragic 
situation.  However,  a  combination  of  the  two  policies — both  negotiating,  and  re- 
thinking the  security  strategy — might  just  achieve  some  results.  Such  a  dual 

36 


Adam  Roberts 


approach  has  been  supported  in  2009  by  John  Nagl,  one  of  the  architects  of  the  new 
US  counterinsurgency  doctrine.  Advocating  the  adaptation  of  this  doctrine  in  the 
special  circumstances  of  Afghanistan,  he  has  stated:  "At  the  time,  the  doctrine  the 
manual  laid  out  was  enormously  controversial,  both  inside  and  outside  the  Penta- 
gon. It  remains  so  today.  Its  key  tenets  are  simple,  but  radical:  Focus  on  protecting 
civilians  over  killing  the  enemy.  Assume  greater  risk.  Use  minimum,  not  maxi- 
mum force."  His  advocacy  of  these  principles  is  accompanied  by  emphasis  on  the 
importance  of  dealing  with  local  forces  as  well  as  national  governments  both  in  Af- 
ghanistan and  in  Pakistan.97 

An  approach  along  such  lines  would  need  to  include  other  elements  as  well,  in- 
cluding a  strong  and  credible  commitment  to  leave  as  soon  as  a  modicum  of  stabil- 
ity is  achieved.  Such  a  combination  would  need  to  be  pursued  in  both  Afghanistan 
and  Pakistan.  It  could  only  work  if  a  new  US  administration  rejected  the  worst  as- 
pects of  previous  policies,  and  pursued  the  matter  with  more  consistent  attention 
than  in  the  past.  It  would  be  likely  to  result  in  some  unsatisfactory  compromises, 
and  might  build  on,  rather  than  fundamentally  change,  the  pattern  of  local  loyalty 
and  regional  warlordism  that  is  so  rooted  in  Afghanistan.  Yet  if  the  war  in  Afghani- 
stan is  not  to  have  even  more  fateful  consequences  for  international  order  than 
those  seen  in  the  past  three  decades,  it  may  be  the  direction  in  which  events  have  to 
move. 

Notes 

1.  T.R.  Moreman,  Callwell,  Sir  Charles  Edward  (1859-1928),  in  OXFORD  DICTIONARY  OF 
NATIONAL  BIOGRAPHY  (H.C.G.  Matthew  &  Brian  Harrison  eds.,  2004). 

2.  C.E.  Callwell,  Small  Wars:  Their  Principles  and  Practice  5  (rev.  ed.,  1899). 

3.  For  an  account  of  the  retreat  from  Kabul  in  January  1842,  see  SAUL  DAVID,  VICTORIA'S 
Wars:  The  Rise  of  Empire  55-67  (2006). 

4.  CALLWELL,  supra  note  2,  at  16. 

5.  David  Loyn,  Butcher  &  Bolt:  Two  Hundred  years  of  Foreign  Engagement  in 
Afghanistan  (2008). 

6.  Rob  Johnson,  a  Region  in  Turmoil:  South  Asian  Conflicts  since  1947,  at  166 

(2005). 

7.  The  Northern  Alliance,  more  correctly  called  the  United  Islamic  Front  for  the  Salvation 
of  Afghanistan,  is  a  loose  association  of  regional  groups  founded  in  1996  to  fight  against  Taliban 
control  of  Afghanistan. 

8.  On  the  Taliban's  history  of  supporting  opium  production,  which  became  the  mainstay 
of  their  war  economy  in  the  late  1990S,  see  AHMED  RASHID,  TALIBAN:  THE  STORY  OF  THE 
AFGHAN  WARLORDS  117-24  (2001). 

9.  AHMED  RASHID,  DESCENT  INTO  CHAOS:  HOW  THE  WAR  AGAINST  ISLAMIC  EXTREMISM 
IS  BEING  LOST  IN  PAKISTAN,  AFGHANISTAN  AND  CENTRAL  ASIA  401  (2008). 

10.  S.C.  Res.  1386,  operative  paragraph  1,  U.N.  Doc.  S/RES/1386  (Dec.  20,  2001).  Five 
months  later  the  Security  Council  addressed  ISAF's  entitlement  to  use  force  more  explicitly, 

37 


Afghanistan  and  International  Security 


authorizing  "the  Member  States  participating  in  the  International  Security  Assistance  Force  to 
take  all  necessary  measures  to  fulfill  the  mandate  of  the  International  Security  Assistance  Force." 
S.C.  Res.  1413,  operative  paragraph  2,  U.N.  Doc.  S/RES/1413  (May  23,  2002). 

11.  S.C.  Res.  1510,  U.N.  Doc.  S/RES/1510  (Oct.  13, 2003),  expanded  ISAF's  sphere  of  opera- 
tions to  other  parts  of  Afghanistan.  By  the  end  of  2006,  now  operating  under  NATO,  it  had  re- 
sponsibilities in  virtually  all  of  Afghanistan. 

12.  Al-Qaeda  Not  Weakening  -  BBC  Poll,  BBC  NEWS,  http://news.bbc.co.Uk/2/hi/americas/ 
7638566.stm  (last  visited  Mar.  9,  2009)  (survey  conducted  July  8-September  12,  2008). 

13.  Saeed  Shah,  Pakistanis  Unite  to  Fight  Extremism,  GUARDIAN  (London),  Oct.  10, 2008,  at 
25. 

14.  RASHID,  supra  note  8,  at  26-29,  45,  90-94,  137-38. 

15.  On  the  extent  of  Pakistani  help  to  the  Taliban,  see  RASHID,  supra  note  9;  SETH  JONES, 
COUNTERINSURGENCY  IN  AFGHANISTAN  (2008),  available  at  http://www.rand.org/pubs/ 
monographs/2008/RAND_MG595.pdf. 

16.  For  an  indictment  predicated  on  the  assumption  that  a  serious  policy  could  be  devised, 
see  US  Government  Accountability  Office,  Combating  Terrorism:  The  United  States 
Lacks  Comprehensive  Plan  to  Destroy  the  Terrorist  Threat  and  Close  the  Safe  Ha- 
ven in  Pakistan's  Federally  Administered  Tribal  Areas  (2008),  available  at  http:// 
www.gao.gov/new.items/d08622.pdf. 

17.  For  a  report  on  US  killings  of  Pakistani  forces  in  an  incident  on  June  10,  2008,  and  on  a 
visit  to  an  area  of  Pakistan  held  by  Taliban  warlords,  see  Dexter  Filkins,  Right  at  the  Edge,  NEW 
YORK  TIMES,  Sept.  7,  2008  (Magazine),  at  52. 

18.  Eric  Schmitt  &  Mark  Mazzetti,  Bush  Said  to  Give  Orders  Allowing  Raids  in  Pakistan,  NEW 
YORK  TIMES,  Sept.  10,  2008,  at  Al. 

19.  See  especially  the  archive-based  material  on  the  Soviet  war  in  Afghanistan  in  ARNE 

Westad,  The  Global  Cold  War:  Third  World  Interventions  and  the  Making  of  Our 

TIMES  (2005). 

20.  S.C.  Res.  462,  U.N.  Doc.  S/RES/462  (Jan.  9,  1980). 

21.  G.A.  Res.  ES-6/2,  U.N.  GAOR,  6th  Emer.  Spec.  Sess.,  Supp.  No.  1,  at  2,  U.N.  Doc.  A/ES- 
6/2  (Jan.  14,  1980). 

22.  On  the  "good  offices"  negotiations  over  Afghanistan,  see  Thomas  M.  Franck  &  Georg 
Nolte,  The  Good  Offices  Function  of  the  UN  Secretary-General,  in  UNITED  NATIONS,  DIVIDED 
World:  The  UN's  Roles  in  International  Relations  149-51, 180  (Adam  Roberts  &  Bene- 
dict Kingsbury  eds.,  2d  ed.  1993). 

23.  UNGOMAP  was  mandated  to  support  implementation  of  the  1988  Geneva  Accords  on 
Afghanistan.  The  Secretary-General's  proposal  to  dispatch  military  personnel  in  UNGOMAP 
was  confirmed  in  S.C.  Res.  622,  U.N.  Doc.  S/RES/622  (Oct.  31, 1988)  and  G.A.  Res.  43/20,  U.N. 
Doc.  A/RES/43/20  (Nov.  3,  1988). 

24.  UN  Press  Release  SG/SM/4127,  at  6  (Apr.  27,  1988),  cited  by  Franck  &  Nolte,  supra  note 
22,  at  150. 

25.  UNSMA  was  established  by  G.A.  Res.  48/208,  U.N.  Doc.  A/RES/48/208  (Dec.  21, 1993). 
It  was  replaced  by  UN  Assistance  Mission  in  Afghanistan  (UNAMA)  after  the  December  2001 
Bonn  Agreement.  Agreement  on  Provisional  Arrangements  in  Afghanistan  Pending  the  Re- 
establishment  of  Permanent  Government  Institutions,  attached  to  Letter  from  the  Secretary- 
General  addressed  to  the  President  of  the  Security  Council,  U.N.  Doc.  S/2001/1154  (Dec.  5, 
2001). 

26.  S.C.  Res.  1076,  U.N.  Doc.  S/RES/1076  (Oct.  22,  1996). 

27.  S.C.  Res.  1193,  U.N.  Doc.  S/RES/1193  (Aug.  28,  1998). 


38 


Adam  Roberts 


28.  S.C.  Res.  1267,  U.N.  Doc.  S/RES/1267  (Oct.  15,  1999).  In  the  ongoing  war  against  the 
Taliban  insurgency,  this  Resolution  has  sometimes  been  seen  as  a  possible  obstacle  to  negotia- 
tions with  the  Taliban. 

29.  S.C.  Res.  1368,  U.N.  Doc.  S/RES/1368  (Sept.  12,  2001). 

30.  S.C.  Res.  1373,  U.N.  Doc.  S/RES/1373  (Sept.  28,  2001). 

3 1 .  See  the  General  Assembly's  notably  strong  commitments  in  respect  to  combating  terror- 
ism contained  in  the  World  Summit  Outcome  document,  G.A.  Res.  60/ 1 ,  fflj  8 1-9 1 ,  U.N.  Doc.  A/ 
RES/60/1  (Sept.  16,  2005). 

32.  On  these  matters  relating  to  the  role  of  the  Security  Council  in  Afghanistan  since  the  late 
1990s,  I  agree  with  Michael  Reisman's  conclusions  in  his  address  "The  Influence  of  the  Conflict 
in  Afghanistan  on  International  Law"  on  June  25, 2008,  the  first  day  of  the  US  Naval  War  College 
workshop.  See  W.  Michael  Reisman,  International  Legal  Dynamics  and  the  Design  of  Feasible  Mis- 
sions: The  Case  of  Afghanistan,  which  is  Chapter  III  in  this  volume,  at  59. 

33.  U.N.  SCOR,  57th  Sess.,  4469th  mtg,  U.N.  Doc.  S/PV.4469  (Feb.  6,  2002). 

34.  Gilles  Dorronsoro,  The  Security  Council  and  the  Afghan  Conflict,  in  THE  UNITED  NATIONS 
Security  Council  and  War:  The  Evolution  of  Thought  and  Practice  since  1945,  at 
464  (Vaughan  Lowe,  Adam  Roberts,  Jennifer  Welsh  &  Dominik  Zaum  eds.,  2008). 

35.  The  Secretary- General,  Report  of  the  Secretary-General  on  the  Situation  in  Afghanistan 
and  Its  Implications  for  International  Peace  and  Security,  |  2,  U.N.  Doc.  Ay '62/722,  S/2008/159 
(Mar.  6,  2008).  See  also  the  Secretary-General's  report  of  September  2008  cited  infra  note  88. 

36.  On  the  revolution  in  military  affairs  and  related  doctrines,  and  how  their  weaknesses  be- 
came evident,  see  LAWRENCE  FREEDMAN,  THE  TRANSFORMATION  OF  STRATEGIC  AFFAIRS 
(2006). 

37.  Interview  of  Paul  Wolfowitz,  US  Deputy  Secretary  of  Defense,  on  Face  the  Nation  (Nov. 
18,  2001),  transcript  available  at  http://usembassy-israel.org.il/publish/peace/archives/2001/ 
november/ 1 1 1 804.html. 

38.  Information  provided  at  a  conference  attended  by  the  author  at  Allied  Rapid  Reaction 
Corps  headquarters,  Rheindahlen  Military  Complex-Monchengladbach,  Germany  (June  27, 
2007). 

39.  US  Army  officers  have  been  particularly  vocal  in  expressing  their  concerns  about  the 
performance  of  the  US  Air  Force  regarding  such  matters  as  bombing  missions  gone  wrong  and 
insufficient  priority  to  the  provision  of  surveillance  aircraft.  See  Thorn  Shanker,  Edging  Away 
from  Air  Force,  Army  Adds  Its  Own  Aviation  Unit,  NEW  YORK  TIMES,  June  22,  2008,  at  A6. 

40.  Human  Rights  Watch,  Troops  in  Contact:  Airstrikes  and  Civilian  Deaths  in 
AFGHANISTAN  2  (2008),  available  at  http://hrw.org/reports/2008/afghanistan0908/index.htm. 

41.  Carlotta  Gall,  Afghan  Leader  Criticizes  U.S.,  Calling  Arrests  and  Casualties  Too  High,  NEW 
YORK  TIMES,  Apr.  26,  2008,  at  A6. 

42.  See  Paul  Gallis  8c  Vincent  Morelli,  Congressional  Research  Service,  NATO  in  Afghani- 
stan: A  Test  of  the  Atlantic  Alliance  1,  No.  33267  (July  18,  2008). 

43.  Press  Release,  North  Atlantic  Treaty  Organization,  Statement  by  the  North  Atlantic 
Council  (Sept.  12,  2001),  available  at  http://www.nato.int/docu/pr/2001/p01-124e.htm. 

44.  For  a  particularly  well  informed  account  of  the  evolution  of  the  roles  of  the  United  States 
and  NATO  since  2001,  see  Astri  Suhrke,  A  Contradictory  Mission?  NATO  from  Stabilization  to 
Combat  in  Afghanistan,  15  INTERNATIONAL  PEACEKEEPING  214  (2008),  available  at  http:// 
www.cmi.no/publications/file/?3038=a-contradictory-mission. 

45.  Daniel  Marston,  Lessons  in  21st-century  Counterinsurgency:  Afghanistan  2001-07,  in 
COUNTERINSURGENCY  IN  MODERN  WARFARE  240  (Daniel  Marston  &  Carter  Malkasian  eds., 
2008). 


39 


Afghanistan  and  International  Security 


46.  See,  e.g.,  Donna  Mills,  Gates:  Afghanistan  Command  Restructuring  Worthy  of  Consid- 
eration (May  2,  2008),  http://www.defenselink.mil/news/newsarticle.aspx?id=49769  (Secretary 
of  Defense  Robert  Gates's  expression  of  concern  about  dual  command  and  control  in  remarks  at 
Texarkana,  Texas). 

47.  See  Adam  Roberts,  Torture  and  Incompetence  in  the  'War  on  Terror, '  SURVIVAL,  Spring 
2007,  at  199;  AMNESTY  INTERNATIONAL,  AFGHANISTAN  -  DETAINEES  TRANSFERRED  TO 
TORTURE:  ISAF  COMPLICITY?  20-30  (2007). 

48.  Information  on  ISAF  troop  numbers  and  areas  of  operation  from  various  documents, 
including  ISAF  Placemat  current  as  of  1  December  2008,  http://www.nato.int/isaf/docu/epub/ 
pdf/placemat_archive/isaf_placemat_08 1201.pdf  (last  visited  Jan.  1 1,  2009). 

49.  See,  e.g.,  Gallis  &  Morelli,  supra  note  42,  at  13. 

50.  For  an  excellent  overview  from  the  late  nineteenth  century  to  the  ongoing  war  in  Af- 
ghanistan, see  COUNTERINSURGENCY  IN  MODERN  WARFARE,  supra  note  45.  Marston's  chapter 
at  220  is  notably  critical  of  the  failure  of  the  United  States  and  its  allies  to  train  and  equip  soldiers 
for  counterinsurgency. 

51.  Headquarters,  Department  of  the  Army  &  Headquarters,  Marine  Corps  Combat  Devel- 
opment Command,  FM  3-24/MCWP  3-33.5,  Counterinsurgency  (2006),  available  at  http:// 
www.fas.org/irp/doddir/army/fm3-24.pdf  [hereinafter  US  Army  Field  Manual  3-24].  This  pub- 
lication has  a  short  foreword  by  then-Lieutenant  General  David  H.  Petraeus  (who  played  a  key 
part  in  its  preparation)  and  Lieutenant  General  James  F.  Amos. 

52.  Headquarters,  Department  of  the  Army  &  Headquarters,  Marine  Corps  Com- 
bat Development  Command,  FM  3-24/MCWP  3-33.5,  The  US  Army/Marine  Corps  Coun- 
terinsurgency FIELD  MANUAL  (University  of  Chicago  Press  2007).  This  edition  has  a  new 
foreword  by  Lieutenant  Colonel  John  A.  Nagl  and  a  new  introduction  by  Sarah  Sewall. 

53.  See  Samantha  Power,  Our  War  on  Terror,  NEW  YORK  TIMES,  July  29,  2007,  §  7,  at  1. 

54.  Chief  of  the  General  Staff,  UK  Army  Field  Manual,  Vol.  1  Combined  Arms  Operations, 
Part  10  Counter-Insurgency  Operations  (Strategic  and  Operational  Guidelines)  (July  2001).  The 
approach  it  laid  out  and  its  principles  are  still  regarded  as  being  valid.  Its  biggest  problem  was  the 
context  in  which  it  was  set.  It  makes  no  mention  of  coalition  operations,  or  the  problems  of  oper- 
ating in  other  people's  countries,  the  religious  and  cultural  dimensions,  and  the  effects  of  infor- 
mation proliferation  and  information  operations.  The  task  of  updating  it  started  in  late  2005.  It  is 
still  in  development. 

55.  UK  Joint  Doctrine  &  Concepts  Centre,  The  Comprehensive  Approach:  Joint  Discus- 
sion Note  4/05  (2006),  available  at  http://www.mod.uk/DefenceInternet/MicroSite/DCDC/ 
OurPublications/JDNP/  (then  JDN  4/05  pdf  hyperlink). 

56.  UK  Ministry  of  Defence  Joint  Doctrine  Note  2/07,  Countering  Irregular  Activity  Within 
a  Comprehensive  Approach  (UK  Ministry  of  Defence,  March  2007). 

57.  JOHN  KISZELY,  POST-MODERN  CHALLENGES  FOR  MODERN  WARRIORS  13-14  (2007), 
available  at  http://www.comw.org/rma/fulltext/0712kiszely.pdf. 

58.  Mat  14. 

59.  US  Army  Field  Manual  3-24,  supra  note  5 1 ,  at  viii.  Three  sources,  all  cited  at  length  in  the 
text,  are  listed  at  this  point.  (The  third,  not  discussed  here,  was  an  article  in  the  New  Yorker  in 
January  2005.)  See  also  the  Annotated  Bibliography,  id.  at  Annotated  Bibliography  1-4,  which 
cites  a  wider  range  of  sources.  It  omits  key  critical  writings  on  the  subject,  most  notably  PETER 
Paret,  French  Revolutionary  warfare  from  Indochina  to  Algeria:  The  Analysis  of 
A  POLITICAL  AND  MILITARY  DOCTRINE  (1964).  The  omission  of  this  title  reflected  a  view  that  it  is 
hard  to  get  Americans  to  take  on  board  French  doctrines  on  COIN. 


40 


Adam  Roberts 


60.  DAVID  GALULA,  COUNTERINSURGENCY  WARFARE:  THEORY  AND  PRACTICE  (1964). 
Galula  died  in  1968.  His  work  was  belatedly  published  in  France  as  CONTRE-lNSURRECTION: 

theorie  et  pratique  (2008). 

61.  Robert  Thompson,  Defeating  Communist  Insurgency:  Experiences  from  Ma- 
laya and  Vietnam  (1966). 

62.  US  Army  Field  Manual  3-24,  supra  note  51,  at  ix. 

63.  Id.,  Foreword.  The  Moros,  perhaps  the  least  known  of  the  insurgents  cited,  have  been  in- 
volved in  an  armed  insurrection  in  the  Philippines. 

64.  Mat  5-31. 

65.  Mat  1-13. 

66.  There  has  not  been  a  census  in  Afghanistan  for  well  over  twenty  years.  The  estimated 
population  was  over  32.5  million  as  of  July  2008.  See  Central  Intelligence  Agency,  The  World 
Factbook  (2008),  https://www.cia.gov/library/publications/the-world-factbook/print/af.html. 

67.  Colonel  Charles  Lacheroy,  Talk,  La  Guerre  Revolutionnaire  (July  2,  1957),  reprinted  in 
LOUIS  TROTABA,  LA  DEFENSE  NATIONALE  322  (1958),  cited  in  PARET,  supra  note  59,  at  15.  Paret 
comments  that  "nothing,"  in  this  case,  means  "the  secure  existence  of  the  status  quo" 

68.  US  Army  Field  Manual  3-24,  supra  note  51,  at  6-21  &  6-22. 

69.  See  especially  THOMPSON,  supra  note  61,  at  17-20. 

70.  The  geographical,  sociological,  political  and  ethnic  differences  between  Malaya  and 
South  Vietnam  were  evident  to  knowledgeable  observers  even  while  the  Vietnam  War  was  still 
ongoing.  See  BERNARD  B.  FALL,  THE  TWO  VlET-NAMS:  A  POLITICAL  AND  MILITARY  ANALYSIS 
339-40,372-76(1963). 

71.  US  Army  Field  Manual  3-24,  supra  note  51,  at  1-8,  2-13. 

72.  See  e.g.,  Obituary  of  Sir  Donald  MacGillivray,  the  last  British  High  Commissioner  for 
Malaya,  TIMES  (London),  Dec.  28,  1966. 

73.  US  Army  Field  Manual  3-24,  supra  note  51,  at  5-15,  3-25,  6-21,  8-16. 

74.  RASHID,  supra  note  8,  at  102-03. 

75.  See,  e.g.,  George  Monbiot,  Backyard  Terrorism,  GUARDIAN  (London),  Oct.  30,  2001,  at 
17  (an  ebullient  attack  on  how  US  counterinsurgency  training  was  implicated  in  the  work  of 
death  squads  in  Latin  America  over  many  decades). 

76.  For  a  useful  account  of  this  general  problem  (though  it  does  not  address  the  case  of  Af- 
ghanistan), see  JOEL  S.  MIGDAL,  STRONG  SOCIETIES  AND  WEAK  STATES:  STATE-SOCIETY  RELA- 
TIONS and  State  Capabilities  in  the  Third  World  (1988). 

77.  US  Army  Field  Manual  3-24,  supra  note  51,  at  2-1. 

78.  Jeffrey  C.  Isaac,  Review  Symposium:  The  New  U.S.  Army/Marine  Corps  Counterinsur- 
gency Field  Manual  as  Political  Science  and  Political  Praxis,  American  Political  Science  Association, 
6  PERSPECTIVES  ON  POLITICS  347-48,  350  (June  2008),  available  at  http://www.apsanet.org/ 
imgtestZPOPJune08CounterInsurgency2.pdf.  The  four  contributors  to  this  symposium  were 
Stephen  Biddle  (347-50),  Stathis  N.  Kalyvas  (35 1-53),  Wendy  Brown  (354-57),  and  Douglas  A. 
Ollivant  (357-60). 

79.  Id.  at  348.  See  also  the  excellent  contribution  of  Stathis  N.  Kalyvas,  who  argues  that  by 
adopting  the  people's  war  model,  the  authors  of  the  manual  assume  that  the  population  interacts 
with  either  the  government  or  the  insurgents.  Id.  at  352.  This  leads  them  (the  authors)  to  con- 
clude, incorrectly,  that  if  the  insurgents  are  removed  from  the  equation  the  people  will  move 
closer  to  the  government. 

80.  Id.  at  347-48  &  350. 

81.  US  Army  Field  Manual  3-24,  supra  note  51,  at  1-9  &  7-6.  These  brief  references  to  Af- 
ghanistan do  not  describe  the  elements  that  make  the  Afghan  conflict  unique. 


41 


Afghanistan  and  International  Security 


82.  US  Ambassador  William  B.  Wood,  Remarks  at  Media  Roundtable,  Kabul,  Afghanistan 
(Dec.  30,  2008),  http://kabul.usembassy.gov/amb_speech_3012.html. 

83.  Based  on  conversations  with  Bernard  Fall  and  material  in  his  writings.  See  BERNARD  B. 
Fall,  Street  Without  Joy:  Indochina  at  War,  1946-54  (1961);  Bernard  B.  Fall,  Viet-Nam 
WITNESS  1953-1966,  at  9  (1966)  (which  alludes  to  these  issues).  See  also  Dorothy  Fall,  Preface  to 
Bernard  B.  Fall,  Last  Reflections  on  a  War  9-10  ( 1967)  (his  widow's  remarkable  writing). 

84.  Astri  Suhrke,  Reconstruction  as  Modernisation:  The  'Post- Conflict'  Project  in  Afghanistan, 
28  THIRD  WORLD  QUARTERLY  1301  (2007),  available  at  http://www.cmi.no/publications/file/ 
?2742=reconstruction-as-modernisation. 

85.  Information   from   three   UNHCR   sources:    UN   REFUGEE   AGENCY,   STATISTICAL 

Yearbook  2006:  Trends  in  Displacement,  Protection  and  Solutions  36  (2007);  UN 
Refugee  Agency,  2007  Global  Trends:  Refugees,  Asylum-seekers,  Returnees, 
Internally  Displaced  and  Stateless  Persons  8-9  (2008);  and  the  UNHCR  Statistical  On- 
line Population  Database,  http://www.unhcr.org/statistics/45c063a82.html.  On  November  3, 
2008  UNHCR  announced  that  so  far  in  2008  more  than  276,000  refugees  had  returned  to  Af- 
ghanistan under  its  voluntary  repatriation  program.  Press  Conference,  Ewen  MacLeod,  Acting 
UNHCR  Representative  in  Afghanistan  (Nov.  3,  2008),  http://www.unama-afg.org/news/_pc/ 
_english/2008/08nov03.html. 

86.  Adam  B.  Ellick,  Afghan  Refugees  Return  Home,  but  Find  Only  a  Life  of  Desperation,  NEW 
YORK  TIMES,  Dec.  2,  2008,  at  A 17.  Figure  for  IDPs  from  AFGHANISTAN  INDEPENDENT  HUMAN 
Rights  Commission,  Economic  and  Social  Rights  Report  in  Afghanistan  -  III  49 
(2008),  available  at  http://www.aihrc.org.af/2008_Dec/Ecn_soc/Eng_Eco_Soc_rep.pdf.  See  also 
Internal  Displacement  Monitoring  Centre,  http://www.internal-displacement.org  (last  visited 
Jan.  2009). 

87.  See,  e.g.,  Peter  Beaumont,  Afghanistan:  Fear,  disillusion  and  despair:  notes  from  a  divided 
land  as  peace  slips  away,  OBSERVER  (London),  June  8,  2008,  at  34-35. 

88.  The  Secretary-General,  Report  of  the  Secretary-General  on  the  Situation  in  Afghanistan 
and  Its  Implications  for  International  Peace  and  Security,  1  2,  U.N.  Doc.  A/63/372,  S/2008/617 
(Sept.  23,  2008). 

89.  Id.,  1H16,  18. 

90.  Ann  Scott  Tyson,  Commander  in  Afghanistan  Wants  More  Troops,  WASHINGTON  POST, 
Oct.  2,  2008,  at  A19.  McKiernan  described  Afghanistan  as  "a  far  more  complex  environment 
than  I  ever  found  in  Iraq." 

9 1 .  See,  e.g.,  New  NIE  -  Afghanistan  in  "Downward  Spiral"  (Oct.  9, 2008),  http://www.nsnetwork 
.org/node/1017  (reporting  on  the  draft  National  Intelligence  Estimate  on  Afghanistan). 

92.  Figures  for  casualties  of  coalition  forces  in  Afghanistan  from  http://icasualties.org/oef/ 
(last  visited  Jan.  11,2009). 

93.  Rory  Stewart,  How  to  Save  Afghanistan,  TIME,  July  17,  2008,  at  30. 

94.  For  evidence  that  Taliban  fighters  in  Afghanistan  have  learned  from  the  mistakes  of  the  pe- 
riod of  Taliban  rule  up  to  2001,  see  Ghaith  Abdul-Ahad,  When  I  Started  I  Had  Six  Fighters.  Now  I 
Have  500,  GUARDIAN  (London),  Dec.  15,  2008,  at  1, 4-5  (reporting  from  a  Taliban-held  area). 

95.  Robert  Birsel,  Pakistan  Parliament  Seen  United  against  Militancy,  Oct.  23,  2008,  http:// 
lite.alertnet.org/thenews/newsdesk/ISL355611.htm  (Reuters  report  from  Islamabad). 

96.  Thomas  H.  Johnson  8c  M.  Chris  Mason,  All  Counterinsurgency  Is  Local,  ATLANTIC,  Oct. 
2008,  at  16-17,  available  at  http://www.theatlantic.com/doc/200810/afghan. 

97.  John  A.  Nagl  &  Nathaniel  C.  Fick,  Counterinsurgency  Field  Manual:  Afghanistan  Edition, 
FOREIGN  POLICY,  Jan.-Feb.  2009,  at  42,  available  at  http://www.foreignpolicy.com/story/cms 
.php?story_id=45878tpage=3. 


42 


II 


Terrorism  and  Afghanistan 


Yoram  Dinstein* 

L  Terrorism  as  an  Armed  Attack 
A.  The  "War  on  Terrorism" 

The  expression  "war  on  terrorism"  is  merely  a  figure  of  speech  or  a  metaphor: 
it  is  not  different  in  principle  from  the  parallel  phrases  "war  on  drugs"  and 
"war  on  poverty."  The  reason  is  that  the  expression  "war"  is  not  used  in  either  con- 
text as  a  legal  term  of  art.  This  is  easily  grasped  by  anyone  who  knows  international 
law.  But  the  trouble  with  a  catchy  phrase  is  that  it  is  apt  to  catch  its  users  in  a  net:  in 
time,  they  (especially  if  they  are  laypersons  and  not  international  legal  experts) 
tend  to  believe  that  the  figure  of  speech  which  they  have  coined  actually  reflects 
reality. 

Metaphors  aside,  there  are  two  types  of  war  pursuant  to  international  law: 
inter-State  (international  armed  conflicts)  and  intra-State  ("civil  wars"  or  non- 
international  armed  conflicts).  In  an  international  armed  conflict,  two  or  more 
belligerent  States  are  locked  in  combat  with  each  other.  Large  numbers  of  States  are 
currently  engaged  in  the  global  "war  on  terrorism."  Yet,  the  strife  qualifies  as  war  in 
the  international  legal  sense  only  when  hostilities  are  raging  against  an  enemy  State 
that  has  joined  hands  with  the  terrorists.  As  we  shall  see,  this  is  true  only  in  the  case 
of  Afghanistan.1 


*  Professor  Emeritus,  Tel  Aviv  University,  Israel. 


Terrorism  and  Afghanistan 


A  "civil  war"  is  an  armed  conflict  between  the  central  government  of  a  State  and  a 
group  (or  groups)  of  domestic  insurgents,  or  (absent  a  central  government)  between 
various  factions  vying  for  power  in  the  State.  Whether  an  internal  disturbance 
crosses  the  threshold  of  a  non-international  armed  conflict  is  a  matter  of  gravity  of 
scale  and  intensity.  The  United  States,  which  has  gone  through  the  throes  of  a  genu- 
ine "civil  war"  in  its  history,  should  know  one  when  it  sees  it.  In  any  event,  the  notion 
that  the  cross-border,  worldwide  "war  on  terrorism"  is  a  non-international  armed 
conflict — a  notion  that  seems  to  have  met  with  favor  in  the  US  Supreme  Court,  in 
the  Hamdan  case  of  20062 — is  manifestly  incongruous. 

B.  Internal  Terrorism 

In  any  analysis  of  the  struggle  against  terrorism,  the  point  of  departure  must  be  a 
bifurcation  between  terrorism  that  is  purely  internal  in  character  and  that  which  is 
launched  from  a  foreign  country  and  perhaps  warrants  action  in  or  against  that 
foreign  country.  It  is  often  forgotten  that,  until  September  11, 2001,  some  of  the  most 
nefarious  acts  of  terrorism  were  actually  local  in  character.  The  mega-bombing  in 
Oklahoma  City  as  well  as  the  lethal  activities  of  terrorists  in  Europe  (such  as  Irish 
Republican  Army  terrorists  in  the  United  Kingdom,  Basque  terrorists  in  Spain,  the 
"Red  Brigades"  in  Italy  and  the  Baader-Meinhof  gang  in  Germany)  and  in  Asia 
(e.g.,  the  Tamil  "Tigers"  in  Sri  Lanka,  Moslem  separatists  in  the  Philippines  and 
sarin  gas-wielding  terrorists  in  the  Tokyo  subway)  were  all  products  of  domestic 
terrorism.  Even  when  the  atrocity  of  9/ 1 1  occurred,  it  is  symptomatic  that  for  a 
while  nobody  knew  for  sure  whether  it  was  an  external  or  an  internal  attack.  Thus, 
when  the  NATO  Council  on  September  12  decided  for  the  first  time  ever  to  invoke 
Article  5  of  the  1949  North  Atlantic  Treaty — whereby  an  armed  attack  against  one 
or  more  of  the  allies  in  Europe  or  North  America  "shall  be  considered  an  attack 
against  them  all"3 — this  was  qualified  by  a  caveat  that  it  be  determined  that  the  at- 
tack was  directed  from  abroad  against  the  United  States.4  Such  a  factual  determina- 
tion was  made  only  subsequently,  on  the  basis  of  additional  information  gathered.5 
The  answer  to  internal  terrorism  lies  in  law  enforcement.  In  other  words,  do- 
mestic law  enforcement  agencies  are  expected  to  cope  with  the  crime  by  searching 
for  the  terrorists  (if  they  are  not  killed  or  captured  in  the  act  and  are  in  hiding), 
arresting  them,  collating  the  necessary  evidence,  issuing  an  indictment,  holding  a 
trial  (based,  of  course,  on  due  process  of  law),  securing  a  conviction,  seeking  a 
punishment  that  fits  the  crime  and  ensuring  that  the  court's  sentence  is  in  fact 
carried  out  (so  that  a  convicted  terrorist  is  not  pardoned  or  otherwise  released 
from  jail  before  the  prescribed  time).  The  law  enforcement  agencies — the  police 
(in  all  its  incarnations,  embracing  an  agency  like  the  FBI  in  the  United  States)  and 


44 


Yoram  Dinstein 


the  judiciary — may  act  on  the  national  (or  federal)  or  local  (including  state,  city 
or  rural)  level. 

Even  when  terrorism  is  a  matter  of  domestic  law  enforcement  there  may  be  a 
dire  need  of  foreign  cooperation.  This  may  be  the  case  either  because  some  mate- 
rial witness  or  evidence  is  located  abroad,  or — if  a  terrorist  manages  to  flee  to  a  for- 
eign country — because  extradition  (based  on  a  treaty  in  force)  or  some  other  (less 
formal)  means  of  rendition  is  required  in  order  to  bring  the  fugitive  to  justice.  Suc- 
cess in  the  extradition  of  a  terrorist  may  be  contingent  on  the  requested  country 
not  considering  his/her  act  as  "political"  in  character.  Stripping  terrorism  of  a  po- 
litical mantle  is  the  thrust  of  the  1977  European  Convention  on  the  Suppression  of 
Terrorism6  and  the  bilateral  1985  US-UK  Supplementary  Extradition  Treaty,7 
which  has  blazed  the  trail  for  a  whole  series  of  similar  bilateral  treaties  concluded 
by  the  United  States  in  later  years. 

International  cooperation  is  also  required  in  a  concerted  effort  to  stop  or  at  least 
impede  the  financing  of  terrorism.  This  is  the  subject  of  the  1999  International 
Convention  for  the  Suppression  of  the  Financing  of  Terrorism.8  More  signifi- 
cantly, it  is  also  the  fulcrum  of  Security  Council  Resolution  1373  (2001),9  an  un- 
precedented landmark  decision,  whereby  all  UN  member  States  (whether  or  not 
parties  to  the  Convention)  are  obligated  to  suppress  the  financing  of  terrorism,10 
under  the  supervision  of  a  special  body  (the  Counter-Terrorism  Committee)  that 
monitors  implementation. 

C.  Armed  Attacks  by  Non-State  Actors 

The  crux  of  the  issue  is  whether  an  act  of  terrorism,  launched  from  abroad  by  non- 
State  actors,  can  be  subsumed  under  the  heading  of  an  armed  attack  in  the  sense  of 
Article  51  of  the  Charter  of  the  United  Nations  (namely,  as  a  trigger  to  the  target 
State's  exercising  counterforce  in  self-defense).  When  a  terrorist  act  originates  out- 
side the  borders  of  the  target  State,  a  foreign  State  must  somehow  be  implicated. 
The  reason  is  that  it  is  indispensable  for  the  terrorists  to  have  a  base  of  operations  as 
a  springboard  for  their  attack.  Needless  to  say,  such  a  base  is  not  likely  to  be  situated 
on  the  high  seas,  in  outer  space  or  in  an  unclaimed  and  uninhabited  part  of 
Antarctica. 

Article  51  of  the  Charter  opens  with  the  following  words:  "Nothing  in  the  pres- 
ent Charter  shall  impair  the  inherent  right  of  individual  or  collective  self-defence  if 
an  armed  attack  occurs  against  a  Member  of  the  United  Nations."  As  can  be  seen, 
Article  51  talks  about  an  armed  attack  occurring  against  a  State  (a  member  of  the 
United  Nations),  but  it  does  not  say  that  the  attack  must  be  launched  by  another 
State.  This  is  particularly  notable  given  the  comparable  phraseology  of  Article  2(4) 
of  the  Charter,  which  mandates  that  all  members  (i.e.,  States)  shall  refrain  from  the 

45 


Terrorism  and  Afghanistan 


use  of  force  in  international  relations.11  It  follows  that,  under  Article  51,  an  armed 
attack  need  not  be  launched  by  a  foreign  State;  it  can  also  be  launched  by  non- State 
actors  from  a  foreign  State.  I  have  always  (even  prior  to  9/1 1)  pursued  this  line  of 
thought,12  but  many  other  commentators  were  not  convinced  in  the  past.13  These 
scholarly  disagreements  should  now  be  regarded  as  moot,  inasmuch  as — since  9/1 1 — 
the  general  practice  of  States  has  become  crystal  clear. 

The  international  response  to  9/1 1  was  unequivocal.  Preeminently,  both  in  Res- 
olution 1368  (2001  )14 — adopted  a  day  after  9/11 — and  in  the  aforementioned  Res- 
olution 1373  (2001  ),15  the  Security  Council  recognized  and  reaffirmed  in  this 
context  "the  inherent  right  of  individual  or  collective  self-defence  in  accordance 
with  the  Charter."  The  NATO  stand  has  already  been  referenced.16  It  maybe  added 
that  in  the  September  2001  meeting  of  the  Ministers  of  Foreign  Affairs,  acting  as  an 
Organ  of  Consultation,  in  application  of  the  1947  Inter- American  Treaty  of  Recip- 
rocal Assistance,  it  was  resolved  that  "these  terrorist  attacks  against  the  United 
States  of  America  are  attacks  against  all  American  States."17  This  must  be  under- 
stood in  light  of  Article  3  of  the  Rio  Treaty,  which  refers  specifically  to  an  armed  at- 
tack and  to  the  right  of  self-defense  pursuant  to  Article  51.18 

It  is  true  that,  in  the  2004  advisory  opinion  on  Legal  Consequences  of  the  Con- 
struction of  a  Wall  in  the  Occupied  Palestinian  Territory^  the  International  Court  of 
Justice  (ICJ)  enunciated:  "Article  51  of  the  Charter  thus  recognizes  the  existence  of 
an  inherent  right  of  self-defence  in  the  case  of  armed  attack  by  one  State  against  an- 
other State."19  However,  as  correctly  observed  by  Judge  Higgins  in  her  separate 
opinion:  "There  is,  with  respect,  nothing  in  the  text  of  Article  51  that  thus  stipulates 
that  self-defence  is  available  only  when  an  armed  attack  is  made  by  a  State."20  Simi- 
lar criticism  was  expressed  in  the  separate  opinion  of  Judge  Kooijmans21  and  in  the 
declaration  of  Judge  Buergenthal.22  Indeed,  the  court  itself  noted  without  demur 
Security  Council  Resolutions  1368  and  1373,  drawing  a  distinction  between  the 
situation  contemplated  by  these  texts  (cross-border  terrorism)  and  occupied 
territories.23 

II.  Action  against  Terrorists  within  a  Foreign  Territory 

When  terrorists  perpetrate  an  armed  attack  against  one  State  from  within  the  terri- 
tory of  another  State,  there  are  three  alternative  scenarios  of  counteraction  by  the 
target  State. 

A.  Action  by  Consent  of  the  Foreign  State 

The  first  possibility  is  that  the  foreign  State  completely  dissociates  itself  from  the 
terrorists,  who  operate  within  its  territory  against  its  will.  However,  lacking  the 

46 


Yoram  Dinstein 


military  wherewithal  to  eliminate  the  terrorist  bases  by  itself,  the  local  State  invites 
the  target  State  to  send  in  its  forces  to  accomplish  (or  assist  in  accomplishing)  that 
mission.  In  such  circumstances,  the  armed  forces  of  the  target  State  will  deploy  and 
operate  against  the  terrorists  on  foreign  soil  with  the  consent  of  the  government  in 
charge.  There  is  no  doubt  about  the  legality  of  such  action,  as  long  as  the  target 
State's  expeditionary  force  carries  out  its  mandate  within  the  terms  of  the  consent 
as  granted.  Article  20  of  the  2001  Draft  Articles  on  Responsibility  of  States  for  In- 
ternationally Wrongful  Acts,  as  formulated  by  the  International  Law  Commission 
(ILC),  sets  forth  clearly:  "Valid  consent  by  a  State  to  the  commission  of  a  given  act 
by  another  State  precludes  the  wrongfulness  of  that  act  in  relation  to  the  former 
State  to  the  extent  that  the  act  remains  within  the  limits  of  that  consent."24 

B.  Action  against  the  Foreign  State 

The  second  scenario  is  the  antithesis  of  the  first.  The  terrorists  may  act  with  the  full 
approval  and  even  instigation  of  the  foreign  State  itself,  which  uses  them  as  an  ir- 
regular or  paramilitary  extension  of  its  armed  forces.  In  that  case,  the  armed  attack 
is  deemed  to  have  been  launched  by  the  foreign  State  itself.  In  the  Nicaragua  case  of 
1986,  the  ICJ  pronounced  that  "it  maybe  considered  to  be  agreed  that  an  armed  at- 
tack must  be  understood  as  including  not  merely  action  by  regular  armed  forces 
across  an  international  border,"  but  also  the  dispatch  of  armed  bands  or  "irregu- 
lars" into  the  territory  of  another  State.25  "The  sending  by  or  on  behalf  of  a  State  of 
armed  bands,  groups,  irregulars  or  mercenaries,  which  carry  out  acts  of  armed 
force  against  another  State"  is  specifically  branded  as  an  act  of  aggression  in  Article 
3(g)  of  the  General  Assembly's  consensus  Definition  of  Aggression  adopted  in 
1 974  26  jn  the  Nicaragua  judgment,  the  ICJ  took  paragraph  (g)  of  Article  3  "to  re- 
flect customary  international  law."27  In  the  post-Nicaragua  period,  the  ICJ  has 
come  back  to  rely  on  Article  3(g)  in  its  opinion  in  the  2005  Congo/Uganda  Armed 
Activities  case.28  Interestingly,  thus  far,  Article  3(g)  is  the  only  clause  of  the  Defini- 
tion of  Aggression  expressly  held  by  the  ICJ  to  be  declaratory  of  customary  interna- 
tional law. 

The  linkage  between  terrorists  and  a  foreign  State  may  be  entangled  and  not 
easy  to  unravel.  The  cardinal  question  is  whether  the  terrorists  act  as  the  de  facto 
organs  of  that  State.  In  the  Nicaragua  judgment,  it  was  categorically  proclaimed 
that,  when  the  "degree  of  dependence  on  the  one  side  and  control  on  the  other" 
warrant  it,  the  hostile  acts  of  paramilitaries  can  be  classified  as  acts  of  organs  of 
the  foreign  State.29  Yet,  the  ICJ  held  that  it  is  not  enough  to  have  merely  "general 
control"  by  the  foreign  State.  What  has  to  be  proved  is  "effective  control" — in  the 
sense  of  close  operational  control — over  the  activities  of  the  terrorists.30 


47 


Terrorism  and  Afghanistan 


The  ICJ's  insistence  on  "effective  control"  by  the  foreign  State  over  the  local 
paramilitaries  can  hardly  be  gainsaid.  However,  the  proposition  that  "general  con- 
trol" does  not  amount  to  "effective  control" — and  that  a  close  operational  control 
is  always  required — is  not  universally  accepted.  Indeed,  in  1999,  the  Appeals 
Chamber  of  the  International  Criminal  Tribunal  for  the  former  Yugoslavia 
(ICTY),  in  the  Tadic  case,  sharply  assailed  the  Nicaragua  prerequisite  of  close  oper- 
ational control — as  an  absolute  condition  of  "effective  control" — maintaining  that 
this  is  inconsonant  with  both  logic  and  law.31  The  ICTY  Appeals  Chamber  pro- 
nounced that  "overall  control"  would  suffice  and  there  is  no  need  for  close  opera- 
tional control  in  every  case.32  The  doctrine  of  overall  control  has  been  consistently 
upheld  in  successive  ICTY  judgments  (both  at  the  trial  and  the  appeal  levels)  fol- 
lowing the  Tadic  case.33 

Article  8  of  the  ILC  2001  Draft  Articles  on  Responsibility  of  States  reads:  "The 
conduct  of  a  person  or  group  of  persons  shall  be  considered  an  act  of  a  State  under 
international  law  if  the  person  or  group  of  persons  is  in  fact  acting  on  the  instruc- 
tions of,  or  under  the  direction  or  control  of,  that  State  in  carrying  out  the  con- 
duct."34 From  the  commentary  one  can  draw  the  conclusion  that  the  ILC  endorsed 
the  Nicaragua  test  of  "effective  control,"  although  it  conceded  that  the  degree  of 
control  may  "vary  according  to  the  factual  circumstances  of  each  case."35 

The  ICJ  returned  to  the  topic  in  the  Genocide  case  of  2007,  where  the  previous 
(Nicaragua)  position  was  upheld  and  the  Tadic  criticism  rejected.36  Nevertheless, 
the  ICJ  set  forth  that  the  "overall  control"  test  of  the  ICTY  may  be  "applicable  and 
suitable"  when  "employed  to  determine  whether  or  not  an  armed  conflict  is  inter- 
national" (which  was  the  issue  in  Tadic),  but  it  cannot  be  presented  "as  equally  ap- 
plicable under  the  law  of  State  responsibility  for  the  purpose  of  determining  .  .  . 
when  a  State  is  responsible  for  acts  committed  by  paramilitary  units,  armed  forces 
which  are  not  among  its  official  organs."37  The  ICJ  added  that 

the  degree  and  nature  of  a  State's  involvement  in  an  armed  conflict  on  another  State's 
territory  which  is  required  for  the  conflict  to  be  characterized  as  international,  can  very 
well,  and  without  logical  inconsistency,  differ  from  the  degree  and  nature  of 
involvement  required  to  give  rise  to  that  State's  responsibility  for  a  specific  act 
committed  in  the  course  of  the  conflict.38 

It  is  doubtful  whether  the  last  word  has  been  said  on  this  theme. 

C.  "Extra-Territorial  Law  Enforcement" 

There  is  a  third  scenario,  intermediate  between  the  two  situations  discussed  so  far. 
While  the  foreign  State  is  not  backing  the  terrorists  (who  cannot  be  regarded  as  its 


48 


Yoram  Dinstein 


de  facto  organs,  under  either  the  Nicaragua  test  or  even  the  Tadic  test),  it  withholds 
consent  from  the  target  State  to  the  dispatch  of  troops  with  a  view  to  the  eradication 
of  the  terrorists.  The  question  is  whether  the  target  State  is  at  an  impasse — unable  to 
act  against  the  terrorists  (absent  consent)  and  having  no  ground  to  act  against  the 
foreign  State  (absent  complicity  with  the  terrorists) — or  there  is  some  other  ave- 
nue open  for  action  in  conformity  with  international  law. 

As  a  rule,  under  international  law,  as  per  the  1949  ICJ  judgment  in  the  Corfu 
Channel  case,  every  State  is  under  an  obligation  "not  to  allow  knowingly  its  terri- 
tory to  be  used  for  acts  contrary  to  the  rights  of  other  States."39  Accordingly,  a 
State  must  not  allow  knowingly  its  territory  to  be  used  for  terrorist  attacks  against 
another  State.  The  premise,  of  course,  is  that  the  local  State  is  capable  of  rooting 
out  the  terrorists  who  are  targeting  another  State.  If  the  local  State  is  incapable  of 
doing  that  (for  military  or  other  reasons),  the  target  State — invoking  the  right  of 
self-defense — is  entitled  to  respond  to  the  terrorist  armed  attack.  In  other  words, 
the  target  State  is  allowed  to  respond  to  the  armed  attack  mounted  from  within  the 
territory  of  the  local  State  by  doing  what  the  local  State  should  have  done  in  the  first 
place  but  failed  to  do.  The  emphasis  is  on  the  fact  that,  in  these  circumstances,  the 
target  State  can  employ  force  against  the  terrorists  (in  self-defense)  within  the  ter- 
ritory of  the  local  State,  even  without  the  consent  of  the  government  in  charge.  I 
call  this  exceptional  state  of  affairs  "extra-territorial  law  enforcement,"40  but  the 
nomenclature  is  not  of  major  import:  it  is  the  normative  substance  that  counts. 
The  fons  et  origo  of  the  norm  in  question  is  a  famous  dictum  formulated  by  US  Sec- 
retary of  State  Daniel  Webster  in  resolving  the  Caroline  incident  of  1837.41 

A  paradigmatic  illustration  of  the  application  in  practice  of  "extra-territorial 
law  enforcement"  is  the  recent  expedition  of  Turkish  troops  into  northern  Iraq, 
with  a  view  to  the  elimination  of  Kurdish  terrorists  operating  from  that  area  against 
Turkey.  Nobody  is  suggesting  that  the  Iraqi  government  in  Baghdad — or  even  the 
authority  in  control  of  the  Kurdish  enclave  of  northern  Iraq — is  in  complicity  with 
the  terrorists,  who  belong  to  a  renegade  group.  Nevertheless,  since  the  terrorists  are 
using  Iraqi  territory  as  their  base  of  anti-Turkish  operations,  and  the  rather  fragile 
government  of  Iraq  is  incapable  of  coming  to  grips  with  the  problem  at  this  time, 
Turkey  has  the  right  to  do  what  the  Iraqi  government  should  have  done  but  failed  to 
do.  There  is  no  armed  conflict  between  Turkey  and  Iraq.  What  we  do  have  is  "extra- 
territorial law  enforcement"  by  Turkey  in  Iraq. 

I  am  glad  to  note  that  in  the  ICJ  2005  decision  in  the  Armed  Activities  on  the  Ter- 
ritory of  the  Congo  case  (Congo/Uganda),  although  the  majority  judgment  glossed 
over  the  issue,  two  judges  in  their  separate  opinions — Judge  Kooijmans  and  Judge 
Simma — cited  my  position  on  the  subject.42  In  doing  so,  Judge  Kooijmans  said:  "It 
would  be  unreasonable  to  deny  the  attacked  State  the  right  to  self-defence  merely 

49 


Terrorism  and  Afghanistan 


because  there  is  no  attacker  State,  and  the  Charter  does  not  so  require."43  And 
Judge  Simma  concurred.44 

As  for  the  majority  position,  all  that  I  can  say  is  that — in  the  past  quarter  of  a 
century — the  ICJ  addressed  the  issue  of  self-defense  four  times,  starting  with  the 
1986  Nicaragua  case45  and  going  through  the  Oil  Platforms  case  of  2003,46  the  Wall 
advisory  opinion  of  200447  and  the  2005  Armed  Activities  case.48  Self-defense  was 
also  mentioned  on  a  fifth  occasion  (the  Nuclear  Weapons  advisory  opinion  of 
199649).  Is  it  merely  a  coincidence  of  bad  luck  that  in  all  these  separate  proceedings 
the  ICJ  made  serious  blunders  in  the  interpretation  of  the  law  of  self-defense?  In 
the  Nicaragua  judgment  there  were  a  number  of  flagrant  flaws,  e.g.,  as  regards  the 
distinction  between  more  and  less  grave  forms  of  use  of  force,  the  differentiation 
between  an  armed  attack  and  mere  frontier  incidents,  the  non-mention  of  imme- 
diacy as  a  condition  of  self-defense,  the  denial  of  the  right  of  a  third  State  to  act  in 
collective  self-defense  on  the  basis  of  its  own  assessment  of  the  situation  and  the 
ramifications  of  failure  to  report  to  the  Security  Council.50  In  the  Oil  Platforms 
case,  apart  from  repeating  uncritically  earlier  rulings,  the  court  added  some  dubi- 
ous new  dicta  about  the  need  for  an  armed  attack  to  be  aimed  specifically  at  a  target 
State  (as  if  indiscriminate  but  deliberate  mine-laying  in  international  shipping 
lanes  is  not  enough).51  In  the  Wall  advisory  opinion,  we  have  the  untenable  brief 
statement  on  the  need  for  an  armed  attack  to  be  mounted  by  one  State  against 
another  State.52  In  the  Armed  Activities  case,  the  court  ignored  the  issue  of  "extra- 
territorial law  enforcement."53  And  in  the  Nuclear  Weapons  advisory  opinion,  the 
mention  of  self-defense  comes  in  the  most  awkward  fashion,  in  a  notorious 
disposition  which  the  court  wrongly  meshed  the  jus  in  hello  with  the  jus  ad  bellum.54 

The  paradox  is  that,  in  1986,  scholars  who  critiqued  the  Nicaragua  judgment 
(like  me)  thought  that  the  ICJ  plummeted  to  a  nadir.  But  the  Nicaragua  judgment 
at  least  gave  commentators  an  opportunity  to  chew  on  some  juicy  morsels  of  prime 
beef.  A  quarter  of  a  century  later,  with  decisions  that  are  much  more  lean — to  the 
point  of  being  cryptic  and  even  mystifying — we  tend  to  think  of  the  Nicaragua 
judgment,  in  retrospect,  as  the  acme  of  the  ICJ  contribution  on  the  subject. 

III.  The  War  in  Afghanistan 

A.  Armed  Attack  and  Self-Defense 

Initially,  Taliban-led  Afghanistan  was  not  directly  involved  in  the  armed  attack  un- 
leashed by  al  Qaeda  against  the  United  States  on  9/ 1 1 .  The  Taliban  regime  in  Kabul 
became  tainted  due  to  its  subsequent  behavior.  In  its  judgment  of  1980  in  the  Teh- 
ran case,  the  ICJ  held  that  if  the  authorities  of  one  State  are  required  under  interna- 
tional law  to  take  appropriate  acts  in  order  to  protect  the  interests  of  another  State, 

50 


Yoram  Dinstein 


and — while  they  have  the  means  at  their  disposal  to  do  so — completely  fail  to  com- 
ply with  their  obligations,  the  inactive  State  bears  international  responsibility  to- 
ward the  other  State.55  By  offering  a  haven  to  al  Qaeda,  in  disregard  of  its 
obligations  under  international  law — and  disdaining  binding  Security  Council 
resolutions  adopted  even  before  9/1 156 — the  Taliban  regime  assumed  responsibil- 
ity for  the  armed  attack  against  the  United  States  and  opened  the  way  to  the  exer- 
cise of  forcible  US  response  in  self-defense. 

Once  the  Taliban's  brazen  refusal  to  take  the  required  steps  against  al  Qaeda  fol- 
lowing 9/11  became  evident,  the  United  States  issued  an  ultimatum,  imperatively 
demanding  that  the  al  Qaeda  bases  be  closed  down  and  that  its  leaders  be  handed 
over.57  When  the  Taliban  ignored  the  ultimatum,  the  United  States  (with  several 
allies)  went  to  war  on  October  7, 2001.  At  that  juncture,  the  Taliban  regime — despite 
its  failure  to  gain  wide  recognition — constituted  the  de  facto  government  of  Af- 
ghanistan because  it  was  in  actual  control  of  more  than  90  percent  of  the  country.58 
A  non-international  armed  conflict  had  independently  flared  up  in  Afghanistan 
long  beforehand.  This  conflict  was  waged  between  the  Taliban  regime,  on  the  one 
hand,  and  the  Northern  Alliance,  on  the  other.  Once  the  inter-State  war  (the 
United  States  and  its  allies  versus  Taliban-led  Afghanistan  and  its  al  Qaeda  ally) 
broke  out,  it  was  prosecuted  simultaneously  with  the  intra-State  war  (the  Taliban 
versus  the  Northern  Alliance)  that  went  on  until  the  fall  of  Kabul.  The  two  wars 
(inter-State  and  intra-State),  although  connected,  must  be  analyzed  separately. 

B.  International  and  Non-International  Armed  Conflicts 

Contrary  to  conventional  opinion,  I  believe  that  the  inter-State  war  in  Afghanistan 
that  started  on  October  7,  2001  continues  unabated  to  this  very  day,  despite  the 
transformation  in  the  status  of  the  Taliban  (who  no  longer  form  the  de  facto  gov- 
ernment of  Afghanistan).  When  American  and  allied  troops  are  fighting  the 
Taliban  (and  their  al  Qaeda  ally)  on  Afghan  or  adjacent  (Pakistani)  soil,  this  is  a  di- 
rect sequel  to  the  hostilities  that  led  to  the  ouster  of  the  Taliban  from  the  seat  of 
power  in  Kabul.  Both  segments  (past  and  present)  of  the  hostilities  are  consecutive 
scenes  in  the  same  drama  unfolding  in  Afghanistan.  The  inter-State  war  will  not  be 
over  until  it  is  over.  And  it  will  only  be  over  once  the  Taliban  are  crushed. 

We  still  have  in  Afghanistan — side  by  side  with  the  inter-State  war  (the  United 
States  et  al.  versus  the  Taliban) — an  intra-State  war  (the  Taliban  versus  the  Karzai 
government  in  Kabul).  Except  that,  in  terms  of  the  intra-State  war,  the  shoe  is  now 
on  the  other  foot:  the  Karzai  government  is  installed  as  the  dejure  government  of 
Afghanistan,  whereas  the  Taliban — originally  the  central  government  (if  only  de 
facto) — are  the  insurgents.  For  the  credentials  of  the  Karzai  government,  it  is  ad- 
visable to  go  back  to  Security  Council  Resolution  1386,  adopted  on  December  20, 

51 


Terrorism  and  Afghanistan 


2001,  which — acting  under  Chapter  VII  (i.e.,  in  a  binding  manner) — (i)  endorsed 
the  Bonn  Agreement,  concluded  earlier  that  month  between  various  Afghan  politi- 
cal factions,  and  (ii)  gave  its  approval  to  the  deployment  of  the  International  Secu- 
rity Assistance  Force  (ISAF)  in  consultation  with  the  Afghan  Interim  Authority 
established  by  the  Bonn  Agreement.59 

As  long  as  the  international  armed  conflict  goes  on  in  Afghanistan,  the  jus  in 
hello  in  all  its  manifestations  is  applicable  to  the  hostilities  there.  The  singular  fea- 
ture of  the  inter-State  war  in  Afghanistan  is  that  it  is  conducted  on  Afghan  soil  with 
the  consent  of  the  Karzai  government.  This  means  that,  at  any  point  in  time,  the 
Karzai  government  (or,  in  the  future,  a  successor  Afghan  government)  may  with- 
draw that  consent  and  pull  the  rug  out  from  under  the  feet  of  the  United  States  and 
ISAF.  The  latter  are  fully  conscious  of  the  need  to  avert  such  an  unwelcome  devel- 
opment. If  the  United  States  (as  heard  at  the  conference)  is  applying  in  the  field  un- 
usual constraints  relating  to  collateral  damage — compared  to  the  general  strictures 
imposed  by  the  jus  in  hello — this  is  not  an  indication  that  the  jus  in  hello  is  undergo- 
ing a  metamorphosis.  It  simply  shows  that  the  United  States  is  responsive  to  the 
concerns  of  the  Afghan  government,  in  whose  territory  the  combat  takes  place.  The 
government  of  Afghanistan  is  fully  entitled  to  insist  on  the  fighting  against  the 
Taliban  (and  al  Qaeda)  being  conducted  with  minimal  civilian  casualties  from 
among  its  citizenry. 

Due  to  the  special  circumstances  of  the  hostilities  in  Afghanistan — primarily, 
the  intimate  relationship  characterizing  the  alliance  between  the  Taliban  and  al 
Qaeda — US  and  allied  combat  operations  against  both  (as  long  as  they  are  con- 
ducted in  and  around  Afghanistan,  including  in  particular  the  lawless  tribal  lands 
of  Pakistan),  are  clearly  fused  in  a  single  inter-State  armed  conflict. 

The  differences  from  the  vantage  point  of  the  jus  in  hello  between  the  parallel  in- 
ternational and  non-international  armed  conflicts  in  progress  in  Afghanistan  should 
not  be  exaggerated.  Despite  the  profound  disparity  between  the  two  types  of  armed 
conflicts  from  the  angle  of  the  jus  ad  helium,  there  is  a  growing  tendency  to  apply 
much  of  the  jus  in  hello  to  both  categories  equally.60  Apart  from  issues  of  semantics 
(exemplified  by  inappropriate  usage  of  terms  such  as  "belligerent  parties''  or  even 
"combatants"),  there  are  only  three  components  of  the  jws  in  hello  in  international 
armed  conflicts  that — intrinsically — defy  application  in  non-international  armed 
conflicts.  These  are  the  entitlement  to  the  status  of  prisoners  of  war,  the  law  of  neu- 
trality and  belligerent  occupation. 

Even  in  the  last  three  respects,  there  may  be  some  analogies  or  similarities.  The 
rule  of  non-intervention  on  behalf  of  the  insurgents  by  foreign  States  takes  the 
place  of  the  norms  of  neutrality.  Detention  of  captured  personnel  in  accordance 
with  minimal  requirements  of  human  rights  comes  in  lieu  of  the  treatment  of 

52 


Yoram  Dinstein 


prisoners  of  war.  But  there  is  no  avoiding  the  fact  that — in  the  absence  of  recogni- 
tion of  belligerency — captured  insurgents  can  be  indicted  and  convicted  for  trea- 
son. In  countries  maintaining  capital  punishment,  upon  conviction  defendants 
may  be  sentenced  to  death.  In  other  jurisdictions,  they  may  languish  in  jail  for  life. 

Recognition  of  belligerency,  issued  by  the  central  government  in  the  face  of 
large-scale  rebellion  (as  happened  in  the  American  Civil  War),  denotes  that  a  non- 
international  armed  conflict  will  be  governed  by  exactly  the  same  rules  that  are  ap- 
plicable in  international  armed  conflicts.61  It  is  occasionally  alleged  that  recogni- 
tion of  belligerency  has  fallen  into  disuse  and  that,  even  if  it  were  to  occur,  only 
"common  Article  3  and  not  the  [Geneva]  Conventions  as  a  whole  will  apply  to  the 
conflict."62  However,  Common  Article  3  applies  anyhow  to  any  "armed  conflict 
not  of  an  international  character  occurring  in  the  territory  of  one  of  the  High  Con- 
tracting Parties,"63  and  this  is  not  contingent  on  any  recognition  of  belligerency. 
Should  such  recognition  be  granted,  it  would  undoubtedly  signal  that  the  conflict 
has  to  be  treated  as  if  it  were  an  international  armed  conflict  and  that  all  the  norms 
of  the  jus  in  hello  (including  those  relating  to  the  status  of  prisoners  of  war,  neutral- 
ity and  belligerent  occupation)  will  become  applicable. 

The  dilemma  of  recognition  of  belligerency  is  for  the  present  Afghan  govern- 
ment to  wrestle  with  and  resolve  as  it  deems  fit.  This  does  not  affect  the  United 
States,  since — in  any  event,  as  stated64 — its  armed  conflict  with  the  Taliban  (as  well 
as  their  al  Qaeda  ally)  has  been  and  remains  international  in  nature.  When  Taliban 
personnel  are  captured  by  American  troops,  they  have  to  be  treated  in  accordance 
with  the  jus  in  hello.  These  captives  cannot  be  considered  guilty  of  treason  against 
the  United  States  (although  the  Afghan  perspective  maybe  different).  In  principle, 
they  would  have  been  entitled  to  prisoner  of  war  status.  However,  they  may  be  de- 
nied that  privilege  due  to  the  fact  that  they  are  unlawful  combatants.  I  addressed  in 
some  detail  the  meaning  and  consequences  of  unlawful  combatancy  at  the  2002 
Newport  conference  on  terrorism  (shortly  after  the  outbreak  of  the  Afghan  War),65 
and  I  do  not  wish  to  repeat  here  what  I  said  there.  I  also  do  not  wish  to  pursue  the 
domestic-constitutional  issue  of  the  rights  of  unlawful  combatants  to  habeas  corpus 
within  the  American  judicial  system.  I  merely  want  to  emphasize  that  Taliban  in- 
ternees held  on  Afghan  soil  in  a  US  detention  center  (e.g.,  in  Bagram)  can  be  kept 
there  only  as  long  as  the  Afghan  government  allows  the  United  States  to  maintain 
such  facilities  within  Afghan  territory. 

C.  Action  against  Terrorists  outside  Afghanistan 

Action  taken  by  the  United  States  and  numerous  other  countries  against  al  Qaeda 
and  diverse  groups  of  terrorists  in  far-flung  parts  of  the  globe,  beyond  the  borders 


53 


Terrorism  and  Afghanistan 


of  Afghanistan  and  its  environs,  do  not  constitute  an  integral  part  of  the  inter-State 
war  raging  in  Afghanistan. 

Al  Qaeda  has  been  active  in  many  parts  of  the  world,  ranging  from  Mesopota- 
mia to  Somalia,  from  Hamburg  to  Madrid.  In  each  instance,  a  discrete  dissection  of 
the  legal  situation  is  required.  However,  there  is  one  common  denominator, 
namely,  the  absence  of  any  built-in  nexus  between  the  measures  taken  for  the  sup- 
pression of  the  local  version  of  terrorism  and  the  inter-State  war  in  Afghanistan.  In 
Iraq  there  is  another  war  which,  hopefully,  is  drawing  to  a  close.  In  other  places,  the 
measures  taken  against  the  terrorists  must  be  seen  in  the  context  of  law  enforce- 
ment,66 leavened  with  sporadic  injections  of  judicial  and  extrajudicial  assistance 
and  cooperation  by  foreign  States. 

IV.  A  New  Paradigm? 

I  cannot  resist  adding  a  few  words  in  response  to  a  plea  heard  at  the  conference  to 
come  up  with  a  new  paradigm  regarding  the  law  of  armed  conflict.  This  is  by  no 
means  the  first  occasion  on  which  I  have  heard  such  an  exhortation,  and  I  am  no 
longer  surprised  when  it  comes  up.  While  all  international  wars  are  alike,  no  two 
wars  are  truly  similar  to  each  other.  After  every  major  war,  it  is  perhaps  natural  that 
the  international  law  of  armed  conflict  is  weighed  and  found  wanting  given  the 
novel  challenges  specific  to  that  war.  When  the  challenges  accumulate,  it  is  fre- 
quently suggested  that  a  new  paradigm  is  required.  After  World  War  I,  the  interna- 
tional community  was  reeling  from  the  carnage  of  trench  warfare  and  the 
widespread  use  of  gas  warfare.  After  World  War  II,  humankind  was  shocked  by  the 
horrors  of  the  extermination  camps  and  compelled  to  take  into  account  the  impact 
of  atomic  weapons.  In  both  world  wars  it  was  contended  that  they  were  a  category 
unto  their  own,  since  they  constituted  "Total  Wars."  Then  came  the  Vietnam  War, 
which  was  supposedly  unique  for  it  consisted  of  guerrilla  warfare.  Kosovo  was  sin- 
gular, because  it  was  exclusively  an  air  campaign.  And  so  it  goes:  each  war  leaves  its 
special  footprints  in  the  sand  of  time. 

As  a  matter  of  fact — and  of  law — I  do  not  see  any  pressing  need  for  a  new  par- 
adigm. Of  course,  there  are  always  new  technologies,  new  weapons  and  new 
methods  of  warfare.  What  these  novelties  convey  is  that  the  law  of  warfare  lags 
behind  the  actualities  of  the  battleground.  Yet,  this  is  not  an  exclusive  hallmark  of 
the  jus  in  hello.  To  a  greater  or  lesser  degree,  all  law  lags  behind  reality.  Lawyers  al- 
ways have  to  trail  events,  trying  to  close  gaps  that  have  opened  up  between  real 
life  and  the  law. 

There  is  a  great  deal  of  reluctance  on  the  part  of  most  States  today  to  close  any 
such  gap — when  it  becomes  readily  apparent — by  means  of  a  formal  treaty,  if  only 

54 


Yoratn  Dinstein 


because  most  treaty  making  today  in  the  field  of  the  jus  in  hello  is  controversial. 
However,  recent  restatements67  show  that  informal  texts  (if  properly  structured 
and  formulated)  may  prove  almost  as  effective  as  formal  treaties. 

In  any  event,  the  very  difficulty  of  adopting  new  treaties  only  reinvigorates  the 
argument  against  the  practicability  of  setting  up  a  new  paradigm.  With  an  old  para- 
digm— even  if  it  is  far  from  perfect — at  least  we  know  where  we  stand.  The  need  to 
have  a  quid  pro  quo  of  rights  and  obligations  has  been  accentuated  at  this  confer- 
ence, and  indisputably  this  is  the  rub.  The  advantage  of  the  present  law  of  both  in- 
ternational and  non-international  armed  conflicts  is  that,  by  and  large,  we  stand  on 
terra  firma:  we  know  who  is  bound  or  entitled  to  do  what.  Admittedly,  the  nuclei  of 
legal  clarity  are  surrounded  by  patinas  of  ambiguity  and  controversy.  But  this  is  the 
inevitable  state  of  all  legal  norms.  The  trouble  with  an  innovative  legal  paradigm  is 
that  it  unbalances  the  existing  paradigms.  It  is  prone  to  plunge  the  entire  legal  sys- 
tem into  a  chaotic  transition  period  in  which  legal  certainty  is  eroded.  Where  the 
jus  in  hello  is  concerned,  what  is  liable  to  happen  is  that  the  notorious  "fog  of  war" 
will  become  the  "fog  of  the  law  of  war." 

Notes 

1.  See  infra  p.  51. 

2.  Hamdan  v.  Rumsfeld,  126  S.  Ct.  2749,  2796  (2006),  reprinted  in  45  INTERNATIONAL  LE- 
GAL MATERIALS  1130,  1153-54  (2006)  (opinion  of  Stevens,  J.). 

3.  North  Atlantic  Treaty,  Apr.  4,  1949,  63  Stat.  2241,  34  U.N.T.S.  243. 

4.  Press  Release,  North  Atlantic  Treaty  Organization  (NATO),  Statement  by  the  North  At- 
lantic Council  (Sept.  12, 200 1),  reprinted  in  40  INTERNATIONAL  LEGAL  MATERIALS  1267  (2001). 

5.  See  Jack  M.  Beard,  Americas  New  War  on  Terror:  The  Case  for  Self-Defense  under  Interna- 
tional Law,  25  Harvard  Journal  of  Law  and  public  Policy  559, 568  (2001-2002). 

6.  European  Convention  on  the  Suppression  of  Terrorism,  Jan.  27, 1977, 1 137  U.N.T.S.  93. 

7.  Supplementary  Extradition  Treaty,  June  25, 1985,  US-UK,  reprinted  in  S.  EXEC.  REP.  No. 
17,  99th  Cong.,  2d  Sess.  15  (1986). 

8.  International  Convention  for  the  Suppression  of  the  Financing  of  Terrorism,  1999,  39 
International  Legal  Materials  270  (2000). 

9.  S.C.  Res.  1373,  U.N.  Doc.  S/RES/1373  (Sept.  28,  2001). 

1 0.  Eric  Rosand,  Security  Council  Resolution  1373,  the  Counter-  Terrorism  Committee,  and  the 
Fight  against  Terrorism,  97  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  333,  334  (2003). 

11.  Id.  at  332. 

12.  See  YORAM  DINSTEIN,  WAR,  AGGRESSION  AND  SELF-DEFENCE  213-15  (3d  ed.  2001). 

13.  See,  e.g.,  Oscar  Schachter,  The  Lawful  Use  of  Force  by  a  State  against  Terrorists  in  Another 
Country,  19  ISRAEL  YEARBOOK  ON  HUMAN  RIGHTS  209,  216  (1989). 

14.  S.C.  Res.  1368,  U.N.  Doc.  S/RES/1368  (Sept.  12,  2001). 

15.  S.C.  Res.  1373,  supra  note  9. 

16.  See  supra  p.  44. 

17.  Organization  of  American  States  (OAS),  Resolution:  Terrorist  Threat  to  the  Americas 
(Sept.  21,  2001),  reprinted  in  40  INTERNATIONAL  LEGAL  MATERIALS  1273  (2001). 

55 


Terrorism  and  Afghanistan 


18.  Inter- American  Treaty  of  Reciprocal  Assistance,  Sept.  2,  1947,  62  Stat.  1681,  121 
U.N.T.S.  77,  95. 

1 9.  Legal  Consequences  of  the  Construction  of  a  Wall  in  the  Occupied  Palestinian  Territory, 
Advisory  Opinion,  2004  I.C.J.  136  (July  9),  43  INTERNATIONAL  LEGAL  MATERIALS  1009,  1050 
(2004). 

20.  Id.  at  1063. 

21.  Id.  at  1072. 

22.  Id.  at  1079. 

23.  Id.  at  1050. 

24.  Draft  Articles  on  Responsibility  of  States  for  Internationally  Wrongful  Acts,  Report  of 
the  International  Law  Commission  on  the  Work  of  its  Fifty-third  Session,  U.N.  GAOR,  56th 
Sess.,  Supp.  No.  10,  at  48,  U.N.  Doc.  A/56/10  (2001),  available  at  http://untreaty.un.org/ilc/texts/ 
instruments/english/draft%20articles/9_6_2001.pdf  [hereinafter  Report  of  the  International 
Law  Commission]. 

25.  Military  and  Paramilitary  Activities  (Nicar.  v.  U.S.),  1986  I.C.J.  14,  103  (June  27)  [here- 
inafter Nicaragua]. 

26.  G.A.  Res.  3314  (XXIX),  U.N.  Doc.  A/9631  (Dec.  14,  1974). 

27.  Nicaragua,  supra  note  25,  at  103. 

28.  Armed  Activities  on  the  Territory  of  the  Congo  (Dem.  Rep.  Congo  v.  Uganda),  2005 
I.C.J.  19  (Dec.  19),  45  INTERNATIONAL  LEGAL  MATERIALS  271,  306  (2006)  [hereinafter  Armed 
Activities]. 

29.  Nicaragua,  supra  note  25,  at  62. 

30.  Id.  at  64-65. 

31.  Prosecutor  v.  Tadic,  Case  No.  IT-94-1,  Judgment  (July  15,  1999),  reprinted  in  38 
International  Legal  Materials  1518, 1540-45  (1999). 

32.  Id.  at  1545. 

33.  For  details,  see  EVE  LA  HAYE,  WAR  CRIMES  IN  INTERNAL  ARMED  CONFLICTS  19  (2008). 

34.  Report  of  the  International  Law  Commission,  supra  note  24,  at  45. 

35.  Id.  at  106-08. 

36.  Application  of  the  Convention  on  the  Prevention  and  Punishment  of  the  Crime  of 
Genocide  (Bosn.  &  Herz.  v.  Serb.  &  Mont.)  (Feb.  27,  2007),  46  INTERNATIONAL  LEGAL  MATE- 
RIALS 185,  287-88  (2007). 

37.  Mat  288. 

38.  Id. 

39.  Corfu  Channel  (U.K.  v.  Alb.),  1949  I.C.J.  4,  22  (Apr.  9). 

40.  See  YORAM  DlNSTEIN,  WAR,  AGGRESSION  AND  SELF-DEFENCE  244-51  (4th  ed.  2005). 

41.  Letter  from  Mr.  Webster  to  Mr.  Fox  (Apr.  24,  1841),  29  BRITISH  AND  FOREIGN  STATE 
PAPERS  1129,  1138  (1840-41). 

42.  Armed  Activities,  supra  note  28,  at  358,  370,  377. 

43.  Id.  at  358. 

44.  Id.  at  370. 

45.  Military  and  Paramilitary  Activities,  supra  note  25. 

46.  Oil  Platforms  (Iran  v.  U.S.),  2003  I.C.J.  161  (Nov.  6). 

47.  Wall  case,  supra  note  19. 

48.  Supra  note  28. 

49.  Legality  of  the  Threat  or  Use  of  Nuclear  Weapons,  Advisory  Opinion,  1996  I.C.J.  226 
(JulyS). 

50.  See  DlNSTEIN,  supra  note  40,  at  193-95,  208-09,  216-18,  268-70. 


56 


Yoram  Dinstein 


51.  See  id.  at  209. 

52.  See  swpra  p.  46. 

53.  See  swpra  pp.  49-50. 

54.  See  DINSTEIN,  supra  note  40,  at  161-62. 

55.  United  States  Diplomatic  and  Consular  Staff  in  Tehran  (U.S.  v.  Iran),  1980  I.C.J.  3,  32- 
34,  44  (May  24). 

56.  See  especially  S.C.  Res.  1267,  U.N.  Doc.  S/RES/1267  (Oct.  15, 1999). 

57.  President  George  W.  Bush,  Address  to  a  Joint  Session  of  Congress  and  the  American 
People  (Sept.  20,  2001),  available  at  http://news.findlaw.com/hdocs/docs/gwbush/ 
bushspeech20010920.html. 

58.  See  Christopher  Greenwood,  International  Law  and  the  'War  against  Terrorism,'  78 
International  Affairs  301, 312-13  (2002). 

59.  S.C.  Res.  1386,  U.N.  Doc.  S/RES/1386  (Dec.  20,  2001). 

60.  See  San  Remo  Manual  on  the  Law  of  Non-International  Armed  Conflict  (Michael  Schmitt, 
Charles  Garraway  &  Yoram  Dinstein  eds.),  36  ISRAEL  YEARBOOK  ON  HUMAN  RIGHTS  333 
(2006). 

61.  See  LA  HAYE,  supra  note  33,  at  14. 

62.  LINDSAY  MOIR,  THE  LAW  OF  INTERNAL  ARMED  CONFLICT  41-42  (2002). 

63.  Convention  for  the  Amelioration  of  the  Condition  of  Wounded  and  Sick  in  Armed 
Forces  in  the  Field,  Aug.  12,  1949,  6  U.S.T.  3114,  75  U.N.T.S.  31  [Geneva  Convention  I];  Con- 
vention for  the  Amelioration  of  the  Condition  of  Wounded,  Sick  and  Shipwrecked  Members  of 
Armed  Forces  at  Sea,  Aug.  12, 1949, 6  U.S.T.  3217, 75  U.N.T.S.  85  [Geneva  Convention  II];  Con- 
vention Relative  to  the  Treatment  of  Prisoners  of  War,  Aug.  12, 1949, 6  U.S.T.  3316, 75  U.N.T.S. 
135  [Geneva  Convention  III];  and  Convention  Relative  to  the  Protection  of  Civilian  Persons  in 
Time  of  War,  Aug.  12,  1949,  6  U.S.T.  3516,  75  U.N.T.S.  287  [Geneva  Convention  IV];  all  re- 
printed in  DOCUMENTS  ON  THE  LAWS  OF  WAR  (Adam  Roberts  &  Richard  Guelff  eds.,  3d  ed. 
2000)  at  197, 198;  222,  223;  244,  245;  and  301,  302;  respectively. 

64.  See  supra  p.  51. 

65.  Yoram  Dinstein,  Unlawful  Combatancy,  in  INTERNATIONAL  LAW  AND  THE  WAR  ON 
TERROR  151  (Fred  Borch  8c  Paul  Wilson  eds.,  2003)  (Vol.  79,  US  Naval  War  College  Interna- 
tional Law  Studies). 

66.  See  supra  pp.  44-45. 

67.  The  archetypical  model  is  the  San  Remo  Manual  on  International  Law  Applicable  to 
Armed  Conflicts  at  Sea  (L.  Doswald-Beck  ed.,  1995),  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF 
WAR,  supra  note  63,  at  573. 


57 


Ill 


International  Legal  Dynamics  and 

the  Design  of  Feasible  Missions: 

The  Case  of  Afghanistan 

W.  Michael  Reisman* 


Military  missions  must  be  accomplished  within  a  political  and  legal  envi- 
ronment. One  often  indistinct  and  elusive  but  nonetheless  important  di- 
mension of  that  environment  is  comprised  of  the  expectations  held  by  politically 
relevant  actors  (some  of  whom  maybe  far  from  the  actual  arena  of  operation)  as  to 
what  constitutes  or  will  constitute,  in  the  circumstances,  lawful  action.  Expecta- 
tions which  approve  or  disapprove  a  projected  mission  can  be  significant  factors  in 
determining  the  quantum  of  resources  required  for  mission  accomplishment  or, 
indeed,  in  determining  whether  there  will  be  a  successful  outcome.  In  some  cases, 
these  considerations  may  require  adjustments  in  the  mission's  design  or  even  its 
abandonment. 

It  is  a  truism  that  it  is  wise  to  consult  your  lawyers  before  you  act,  for  they  are  expert 
in  identifying  authoritative  expectations.  In  international  law,  such  consultations 
do  not  always  help,  because  expectations  with  respect  to  the  lawfulness  of  current 
or  projected  actions  in  the  contemporary  international  political  system  are  not 
necessarily  congruent  with  the  stuff  with  which  lawyers  ordinarily  work,  the  formal 


Myres  S.  McDougal  Professor  of  International  Law,  Yale  Law  School. 


International  Legal  Dynamics  and  the  Design  of  Feasible  Missions 

texts  of  international  law.  For  one  thing,  the  jurymen  of  international  law,  the  cast 
of  politically  relevant  actors,  have  expanded  from  a  small  group  of  nation-State 
elites  who  produce  those  texts.1  It  now  includes  a  wide  range  of  non-governmental 
actors,  whose  activities  and  influence  are  amplified  by  easy  mobility  and  a  global 
network  of  communications.  For  another,  the  texts  of  international  law  which  are 
produced  by  nation-State  elites  vary  in  their  effectiveness  and  the  extent  to  which 
they  reflect  or  shape  expectations;  some  of  the  texts,  for  all  their  legalistic  language, 
are  only  aspirational,  while  others  are  "law-in-the-books"  rather  than  "law-in- 
action." Still  other  texts  are  part  of  the  "myth  system"  of  international  law  rather 
than  its  "operational  code."2 

So  although  formal  international  legal  texts  can  always  be  "crunched"  in  various 
logical  exercises  to  reach  desired  "legal"  conclusions,  those  conclusions  may  prove 
to  be  quite  different  from  the  expectations  of  lawfulness  held  by  the  actors  whose 
expectations  of  lawfulness  are  actually  relevant  for  a  particular  mission.  Thus,  the 
international  legal  specialist  who  plays  a  role  in  the  design  of  a  military  mission  and 
who  appreciates  the  relevance  of  the  legal  variable  as  a  factor  in  the  mission  faces 
two  daunting  professional  challenges:  first,  in  identifying  who  are  the  politically 
relevant  actors  in  a  specific  context,  and,  second,  in  articulating  and  analyzing  their 
operative  expectations  of  lawfulness.  The  key  values  held  by  important  actors  in 
the  institutions  of,  and  outside  of,  contemporary  international  law  can  be  critical 
factors  in  the  cost  or  feasibility  of  a  particular  military  mission.  In  designing  or  ap- 
praising missions  against  Al  Qaeda,  the  collective  views  of  the  UN  Security  Coun- 
cil, other  governments  and  non-State  entities  form  parts  of  the  legal  environment. 
Al  Qaeda's  agents  and  franchisees  often  operate  across  political  boundaries  and 
maybe  independent  of  or  have  only  shadowy  relations  with  governments  or  com- 
ponents within  them,  instead  deriving  their  support  from  non-governmental 
entities. 

I  believe  that  Afghanistan,  the  central  focus  of  this  workshop,  provides  an  in- 
structive example  of  my  thesis.  Because  my  purpose  is  to  illustrate  the  relations  be- 
tween mission  design  and  international  legal  and  institutional  environments,  a 
cursory  review  of  the  modern  history  of  Afghanistan  is  necessary. 

II 

Afghanistan  is  divided  along  geographic  and  ethnic  lines  which  do  not  configure  its 
political  borders.  Neither  its  demographic  divisions  nor  its  topography  dispose  it 
to  effective  and  centralized  control  or  internal  stability.  Still  Afghanistan  enjoyed 
an  extended  period  of  stability  in  the  reign  of  Zahir  Shah,  from  1933  to  1973.  That 
tranquility  ended  when  Zahir  Shah  was  overthrown  by  his  brother-in-law,  who 

60 


W.  Michael  Reisman 


terminated  the  monarchy  and  established  a  republic  with,  mirabile  dictu,  himself  as 
its  President.  Five  years  later,  he,  in  turn,  was  overthrown  by  the  People's  Demo- 
cratic Party  (PDPA).  Nur  Mohammed  Taraki  became  President,  the  republic  was 
rechristened  the  Democratic  Republic  of  Afghanistan,  and  closer  relations  with  the 
Soviet  Union  were  forged.  The  Soviet  Army  intervened  in  Afghanistan  in  1979  and 
installed  Babrak  Karmal  in  place  of  Taraki.  In  terms  of  internal  order,  it  was  more 
on  the  order  of  a  personnel  change  than  a  regime  change,  as  the  political  vocabu- 
lary and  secular  governmental  program  of  Karmal's  predecessor  continued. 

President  Carter  had  begun  to  fund  and  train  Mujahidin  through  Pakistan's  se- 
cret service,  the  ISI  (Inter- Services  Intelligence  agency),  to  fight  the  Soviet-backed 
government.3  The  policy  was  continued  under  President  Reagan.  The  Mujahidin 
were  a  largely  religiously- inspired  resistance.  That  said  and  without  minimizing 
the  mobilizing  potential  of  Jihadist  Islam,  any  attempt  to  depict  or  comprehend 
the  war  or  Afghan  politics,  in  general,  in  exclusively  ideological,  nationalistic  or  re- 
ligious terms  without  accounting  for  ethnicity,  language,  region,  the  pursuit  of 
wealth  or  simple  bare-knuckle  power  politics  would  oversimplify  a  dauntingly 
complex  political  system. 

The  Soviet  occupation  and  the  Afghan  resistance  cost  the  lives  of  over  one  mil- 
lion and  perhaps  as  many  as  two  million  Afghans;  five  million  Afghans  fled  the 
country.4  When  the  Soviet  Union  withdrew  from  Afghanistan  in  1989,  the  subtrac- 
tion of  the  Soviet  military  from  the  Afghan  equation  did  not  produce  the  immedi- 
ate collapse  of  the  Najibullah  government.  The  civil  war  continued.  The  factor  that 
ultimately  brought  Dr.  Najibullah  down  appears  to  have  been  the  Soviet  decision 
in  1992  to  terminate  the  sale  of  petroleum  to  the  Afghan  government. 

Even  after  the  collapse  of  the  Najibullah  government,  the  civil  war  ground  on, 
with  great  loss  of  life;  by  then,  much  of  the  fighting  was  being  carried  on  between 
various  Mujahidin  factions,  who  broke  along  language,  ethnic  and  regional  lines. 
Beginning  in  1994,  however,  the  Taliban,  a  fundamentalist  Sunni  and  Pashtun 
force  based  in  the  south,  emerged  as  a  more  unified  element.  The  Taliban  seized 
Kandahar  and  then  Kabul  in  1996  and  by  2000  had  captured  95  percent  of  the 
country.5  The  erstwhile  Democratic  Republic  of  Afghanistan  morphed  into  the  Is- 
lamic Emirate  of  Afghanistan. 

Only  Pakistan,  Saudi  Arabia  and  the  United  Arab  Emirates  recognized  and  main- 
tained diplomatic  relations  with  the  Taliban  as  the  legitimate  government.  Nor  did 
the  Taliban  fare  better  at  the  United  Nations,  where  the  General  Assembly's  Creden- 
tials Committee  refused  to  seat  the  Taliban  government,  despite  its  effective  control 
of  the  country.  Instead,  the  Committee  accredited  the  representatives  of  the  ousted 
government  of  President  Rabbani,  the  leader  of  a  Mujahidin  faction,  who  was  not  re- 
nowned for  his  commitment  to  secular  values  or  to  democracy. 

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International  Legal  Dynamics  and  the  Design  of  Feasible  Missions 

There  is  no  indication  that  withholding  certification  at  the  United  Nations  had 
any  effect  on  the  Taliban's  control  of  the  country.  Indeed,  it  was  only  in  its  2001  re- 
port after  "Operation  Enduring  Freedom"6  that  the  Credentials  Committee  took 
note  of  the  agreement  on  provisional  arrangements  in  Afghanistan  which  the  Secu- 
rity Council  had  endorsed  in  Resolution  1383  (200 1).7  Thereupon,  the  Karzai  gov- 
ernment assumed  the  Afghan  seat  in  the  Assembly.  Notwithstanding  the  potential 
fallacy  of  post  hoc  ergo  propter  hoc,  it  seems  safe  to  say  that  the  General  Assembly's 
Credentials  Committee  was  endorsing  the  regime  change  of  Operation  Enduring 
Freedom. 

Osama  bin  Laden's  organization,  Al  Qaeda,  had  been  born  and  nurtured  on  the 
borders  of  Afghanistan  during  the  war  against  the  Soviet  Union's  occupation,  but 
Al  Qaeda  is  not  a  political  movement  indigenous  to  Afghanistan.  It  was  formed  as 
part  of  a  pan-Islamic  military  effort  to  force  the  Soviet  Union  from  Afghanistan. 
After  the  victory  in  1989,  Al  Qaeda  expanded  its  goals  and  relocated  to  Sudan. 
When  Al  Qaeda  was  subsequently  expelled  from  Sudan  as  a  result  of  US  pressure, 
Osama  bin  Laden  returned  to  and  began  to  operate  from  Afghanistan.  He  estab- 
lished training  and  operational  bases  and  his  operatives  conducted  significant  ac- 
tions, inter  alia,  against  US  installations  and  forces.  Those  latter  actions  appear  to 
have  been  the  principal  reason  why  the  Security  Council  began  taking  a  renewed 
interest  in  Afghanistan.  Let  me  turn  to  them  briefly. 

In  the  late  1990s,  though  the  General  Assembly  had  refused  to  seat  the  Taliban 
government,  Secretary- General  Kofi  Annan  appointed  a  special  representative 
who  was  charged  with  negotiating  a  political  settlement.  Meanwhile,  the  Security 
Council  sought  to  influence  events  in  the  Afghan  civil  war  through  various  resolu- 
tions which  reflected  different  concerns.  Security  Council  Resolution  1214  of  De- 
cember 8,  1998,  for  example,  condemned  many  of  the  human  rights  violations  of 
the  Taliban  but  the  Council  registered,  in  particular,  that  it  was  " deeply  disturbedby 
the  continuing  use  of  Afghan  territory,  especially  areas  controlled  by  the  Taliban, 
for  the  sheltering  and  training  of  terrorists  and  the  planning  of  terrorist  acts."8  In 
paragraph  13,  the  Council  demanded  "that  the  Taliban  stop  providing  sanctuary 
and  training  for  international  terrorists  and  their  organizations  and  that  all  Afghan 
factions  cooperate  with  efforts  to  bring  indicted  terrorists  to  justice."9 

A  year  later,  the  Council's  focus  on  Al  Qaeda  became  sharper.  It 

deplor[ed]  the  fact  that  the  Taliban  continues  to  provide  safe  haven  to  Usama  bin  Laden 
and  to  allow  him  and  others  associated  with  him  to  operate  a  network  of  terrorist 
training  camps  from  Taliban-controlled  territory  and  to  use  Afghanistan  as  a  base 
from  which  to  sponsor  international  terrorist  operations.10 


62 


W.  Michael  Reisman 


In  2000,  the  Council  reiterated  this  language  and  continued  by  "strongly  condemn- 
ing the  continuing  use  of  [Afghan  territory,  especially  areas  controlled  by  the 
Taliban],  for  the  sheltering  and  training  of  terrorists  and  planning  of  terrorist  acts 
"u  The  Council  determined  that  the  failure  of  the  Taliban  to  respond  to  the  de- 
mands of  paragraph  13  of  Resolution  1214  and  of  paragraph  2  of  Resolution  1267 
of  the  preceding  years  now  "constitute  [d]  a  threat  to  international  peace  and  secu- 
rity."12 Acting  explicitly  under  Chapter  VII,  the  Council  essentially  reiterated  the 
demands  which  had  been  made  in  previous  resolutions  but  also  demanded  that 
Osama  bin  Laden  be  surrendered  either  to  the  United  States  or  to  a  country  that 
would  turn  him  over  to  the  United  States.  The  Council  also  imposed  an  array  of 
economic  sanctions  in  Resolution  1267,  denying  air  access  and  freezing  funds.  A 
year  later,  in  Resolution  1333  (2000),  the  Council  reiterated  its  demands.  At  the 
end  of  July  2001,  the  Council  ordered  the  Secretary- General  to  establish  a  monitor- 
ing mechanism  for  the  implementation  of  all  of  the  previous  resolutions.13 

Together,  these  were  the  measures  which  the  Security  Council  members  were 
able  to  agree  to  take  during  that  period.  None  prescribed  by  its  sequence  of  resolu- 
tions appears  to  have  had  any  effect  on  the  Taliban's  control  and  administration  of 
Afghanistan  or  Al  Qaeda's  freedom  of  operation  within  or  beyond  its  borders. 
Quite  the  contrary:  only  forty-three  days  after  the  last  Council  resolution,  on  Sep- 
tember 11,  2001,  Al  Qaeda  mounted  its  infamous  attacks  on  civilian  and  military 
targets  in  the  United  States. 

The  reaction  of  the  Security  Council  on  September  12,  in  Resolution  1368,  is  in- 
teresting and  worth  quoting  in  full,  for  its  content  tells  much  about  the  decision  dy- 
namics of  the  Council,  its  capacity  to  respond  effectively  to  such  crises  and,  as  a  result, 
its  potential  to  facilitate — and  restrain — such  military  actions  as  the  United  States  con- 
cluded were  necessary  for  its  defense.  Resolution  1368  provides,  in  its  entirety: 

The  Security  Council, 

Reaffirming  the  principles  and  purposes  of  the  Charter  of  the  United  Nations, 

Determined  to  combat  by  all  means  threats  to  international  peace  and  security  caused 
by  terrorist  acts, 

Recognizing  the  inherent  right  of  individual  or  collective  self-defence  in  accordance 
with  the  Charter, 

1.     Unequivocally  condemns  in  the  strongest  terms  the  horrifying  terrorist  attacks 
which  took  place  on  11  September  2001  in  New  York,  Washington,  D.C.  and 


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International  Legal  Dynamics  and  the  Design  of  Feasible  Missions 

Pennsylvania  and  regards  such  acts,  like  any  act  of  international  terrorism,  as  a  threat 
to  international  peace  and  security; 

2.  Expresses  its  deepest  sympathy  and  condolences  to  the  victims  and  their  families 
and  to  the  people  and  Government  of  the  United  States  of  America; 

3.  Calls  on  all  States  to  work  together  urgently  to  bring  to  justice  the  perpetrators, 
organizers  and  sponsors  of  these  terrorist  attacks  and  stresses  that  those  responsible 
for  aiding,  supporting  or  harbouring  the  perpetrators,  organizers  and  sponsors  of 
these  acts  will  be  held  accountable; 

4.  Calls  also  on  the  international  community  to  redouble  their  efforts  to  prevent 
and  suppress  terrorist  acts  including  by  increased  cooperation  and  full 
implementation  of  the  relevant  international  anti-terrorist  conventions  and  Security 
Council  resolutions,  in  particular  resolution  1269  (1999)  of  19  October  1999; 

5.  Expresses  its  readiness  to  take  all  necessary  steps  to  respond  to  the  terrorist  attacks 
of  11  September  2001,  and  to  combat  all  forms  of  terrorism,  in  accordance  with  its 
responsibilities  under  the  Charter  of  the  United  Nations; 

6.  Decides  to  remain  seized  of  the  matter.14 

You  will  note  that  the  "combat  by  all  means"  statement  in  the  second 
considerandum  and  the  "all  necessary  steps"  in  operative  paragraph  5  refer  to  the 
Security  Council  and  not  to  any  single  State;  the  single  State  (obviously  the  United 
States)  is  confined,  in  the  third  considerandum,  to  self-defense.  But  by  characteriz- 
ing, in  the  second  considerandum,  terrorist  acts  as  "threats  to  the  peace"  rather 
than  "breaches  of  the  peace"  or  "acts  of  aggression,"  the  Resolution  kept  them 
from  falling  under  Article  51's  right  of  self-defense.15  As  for  the  operative  para- 
graphs of  the  Resolution,  the  third  calls  for  judicial  action,  while  the  fourth  refers 
back  to  the  various  economic  and  other  means  adopted  in  the  previous  resolutions. 
But  their  lack  of  success  was  painfully  manifest  in  the  ruins  still  smoking  thirty 
blocks  south  of  Turtle  Bay. 

On  September  28, 2001,  the  Council  revisited  the  problem  in  a  somewhat  calmer 
environment.  Resolution  1373  (2001),  again  explicitly  invoking  Chapter  VII,  reiter- 
ated the  pre-9/11  judicial  and  economic  strategies  but  added  that  "all  States  shall .  .  . 
[t]ake  the  necessary  steps  to  prevent  the  commission  of  terrorist  acts,  including  by 
provision  of  early  warning  to  other  States  by  exchange  of  information."16  By  No- 
vember 14,  2001,  Resolution  1378  could  refer,  if  vaguely,  to  the  Council's  support 
for  "international  efforts  to  root  out  terrorism,"17  but  it  immediately  made  clear,  as  it 


64 


W.  Michael  Reisman 


had  earlier,  that  this  was  to  be  done  "in  keeping  with  the  Charter  of  the  United  Na- 
tions."18 Those  words  are  code  for  the  Charter's  prohibition  on  the  unilateral  use  of 
force  in  any  circumstance  other  than  exigent  self-defense.  But  in  this  Resolution,  the 
Council  inserted,  in  its  fourth  considerandum,  an  explicit  condemnation  of 

the  Taliban  for  allowing  Afghanistan  to  be  used  as  a  base  for  the  export  of  terrorism  by 
the  Al-Qaida  network  and  other  terrorist  groups  and  for  providing  safe  haven  to 
Usama  Bin  Laden,  Al-Qaida  and  others  associated  with  them,  and  in  this  context  [the 
Council]  support[s]  the  efforts  of  the  Afghan  people  to  replace  the  Taliban  regime.19 

This  was  the  first  mention  of  an  internationally  approved  regime  change  in  Af- 
ghanistan. But  it  would  be  more  than  overstatement  to  call  this  an  a  priori  authori- 
zation or  an  authentic  UN  initiative.  By  the  time  the  Resolution  was  agreed,  US 
Special  Forces  were  operating  in  northern  Afghanistan,  actively  assisting  the 
Northern  Alliance,  and  they  would  shortly  be  in  Kabul,  where  a  new  government 
would  be  installed.  As  for  the  Taliban,  they  would  withdraw  from  the  capital  and 
the  other  cities.  They  were  no  longer  the  de  facto  government  of  Afghanistan  but 
were  far  from  defeated  as  a  military  force.  So  the  Council  was,  in  effect,  only  con- 
firming and  acceding  to  (or  participating  in  the  fruits  of)  a  fait  accompli  which  had 
been  accomplished  without  prior  Council  authorization. 

In  Bonn,  Germany,  a  conference,  which  brought  together  non-Taliban  Afghans 
as  well  as  warlords  who  had  formerly  been  associated  with  the  Taliban,  was  con- 
vened, essentially  by  the  United  States.  On  December  5,  2001,  the  conference  con- 
cluded the  Bonn  Agreement,  which  put  in  place  provisional  arrangements  for  a 
new  government.20  A  day  later,  on  December  6,  the  Security  Council,  in  Resolution 
1383,  endorsed  the  Bonn  Agreement,  called  on  all  Afghan  groups  to  support  the 
new  government  and  declared  itself  willing  to  support  it.21  On  December  20,  the 
Council,  again,  accommodated  to  rather  than  shaped  events.  In  Resolution  1386, 
in  effect,  it  acceded  to  the  Bonn  Agreement's  request  that  the  Council  authorize  an 
International  Security  Assistance  Force,  or  ISAF;  took  note  of  the  United  King- 
dom's willingness  to  organize  and  lead  ISAF;  and  authorized  ISAF  to  perform  its 
mission  in  Afghanistan  for  6  months.22  It  has  been  renewed  semiannually. 

in 

The  purpose  of  this  rapid  diachronic  review  of  the  actions  of  the  Security  Council 
from  the  late  1990s  to  the  end  of  2001  is  not  to  belittle  the  contribution  of  the  Secu- 
rity Council  or  of  the  United  Nations  to  the  US  response  to  the  attacks  by  Al  Qaeda. 
Quite  the  contrary!  I  believe  that  the  United  Nations  is  an  important  institution  for 


65 


International  Legal  Dynamics  and  the  Design  of  Feasible  Missions 

its  member  States  and,  when  correctly  and  sensibly  used,  can  be  a  critical  instru- 
ment of  policy  for  the  United  States.23  But  the  United  Nations  is  not  a  supple,  mul- 
tipurpose instrument  that  can  be  readily  applied  to  all  situations.  The  principles 
which  the  organization  and  its  members  value  most — in  particular  national  sover- 
eignty, non-intervention  and  territorial  inviolability — and  the  idiosyncratic  struc- 
ture of  the  Security  Council  limit  the  organization's  effectiveness  in  managing  and 
resolving  conflicts  with  aggressive  global  Salafism.  Or,  to  formulate  it  in  more  posi- 
tive terms,  the  way  a  military  mission  is  designed  may  influence  whether  the  Secu- 
rity Council  or,  more  generally,  the  United  Nations  will  facilitate  or  constrain  it;  it 
may  also  determine  the  degree  of  that  facilitation  or  obstruction. 

Prior  to  2001,  the  efforts  of  national  actors  who  were  threatened  or  were  victims 
of  Al  Qaeda  to  work  through  the  United  Nations  were  of  little  effect.  The  problem 
was  not  that  the  Council's  operational  arsenal  of  diplomatic,  economic  and  ideo- 
logical instruments — which,  after  1999,  were  even  taken  under  its  plenary  Chapter 
VII  powers — are  inherently  ineffective.  In  some  cases,  that  arsenal  has  proved  ef- 
fective, either  as  a  primary  or  adjunct  instrument  for  securing  desired  political 
changes.  The  anti-Taliban  sanctions  might  have  worked  over  a  very  long  period  of 
time,  especially  if  some  of  the  governments  contiguous  to  Afghanistan  had  fully 
complied  with  and  implemented  them. 

The  difficulty  lies  in  that  time  factor.  In  the  twenty-first  century,  governments, 
which  anticipate  the  types  of  military  attacks  which  actors  such  as  Al  Qaeda  mount, 
cannot  always  afford  the  luxury  of  waiting  for  a  very  long  period  of  time  for  Secu- 
rity Council  measures  to  "bite."  The  most  noxious  of  Salafist  threats  can  operate  on 
a  much  more  accelerated  timetable  and  with  a  greater  potential  for  destructive 
impacts. 

This  is,  of  course,  what  happened  in  the  case  of  the  Taliban  and  Al  Qaeda.  While 
the  Council  fine-tuned  and  patiently  waited  for  its  sanctions  program  to  work,  the 
Taliban  government,  amply  supplied  with  illicit  drug  money  and  benefitting  from 
either  indifferent  or  actively  sympathetic  elements  in  some  contiguous  States,  rein- 
forced its  control  over  Afghanistan;  as  for  Al  Qaeda,  comfortably  cocooned  in  the 
Taliban  system,  it  pursued  its  various  programs,  culminating  in  its  operations  on 
September  11. 

The  United  Nations  is  neither  world  politics  nor  even  its  major  arena;  it  is  a 
part  of  it,  a  composite  actor  within  it.  Assessing  the  effectiveness  of  the  UN  role  in 
this  phase  of  the  Afghan  war  requires  us  to  look  at  the  broader  arena  of  world  pol- 
itics. There,  what  appears  to  have  happened  is  that  after  September  1 1,  the  United 
States  and  those  States  cooperating  with  it,  perforce,  took  their  own  initiatives.  As 
for  the  other  less  supportive  but  indispensable  members  of  the  Security  Council, 
they  accommodated  themselves  to  what  appeared  to  be  a  fait  accompli,  trading  a 

66 


W.  Michael  Reisman 


measure  of  Council  authorization,  by  retrospective  stamp  of  approval,  in  return 
for  the  validation  of  the  Council's  own  relevance  and  a  nominal  share  of  supervi- 
sion. In  the  coin  of  international  political  exchange,  that  validation  was  worth 
something. 

But  the  Security  Council  does  not  control  the  market  on  international  author- 
ity. It  may  not  always  deny  lawfulness  to  an  action  by  withholding  its  seal  of  ap- 
proval; conversely,  its  seal  of  approval  does  not  always  assure  that  the  actions  in 
question  will  be  viewed  as  lawful  by  other  politically  relevant  actors  in  the  interna- 
tional system.  This  is  especially  the  case  when  the  action  involves  invading  and  dis- 
placing an  existing  government — hence  the  tepid  Security  Council  efforts  prior  to 
9/11  and  the  limited  authorizations  (usually  coming  after  the  fact)  thereafter. 

IV 

One  of  the  lessons  for  the  future  here  appears  to  be  that  where  urgent  action  against 
entities  like  Al  Qaeda  and  its  affiliates  is  required,  the  responses  which  may,  at  the 
most,  be  expected  from  the  Security  Council — the  sorts  of  measures  ordered  by  the 
Council  in  the  period  before  September  11,  2001 — will  not  be  sufficient  in  real 
time;  in  these  circumstances,  unilateral  and,  by  its  nature,  anticipatory  military  ac- 
tion may  be  the  only  meaningful  option.  A  confirmation  of  the  international  law- 
fulness of  such  unilateral  action  by  the  Security  Council  and  the  more  diffuse 
international  processes  of  decision  should  be  sought.  But  it  is  not  likely  that  such 
action,  even  when  plausibly  construed  as  a  form  of  self-defense,  will  be  authorized 
in  advance  by  the  Security  Council  or  confirmed  or  celebrated  after  the  fact.  It  ap- 
pears clear,  however,  that  the  more  ambitious,  extensive  and  anti-governmental 
the  unilateral  action  undertaken,  the  less  likely  will  be  Security  Council  or  more 
general  international  support. 

For  the  reasons  set  out  in  Part  I,  one  of  the  considerations  in  the  design  of  a  uni- 
lateral action  which  a  State  feels  it  must  take  in  either  reactive  or  anticipatory  self- 
defense24  should  be  to  increase  its  international  legal  acceptability  and  to  decrease 
perceptions  of  the  violation  of  international  law.  I  would  suggest  that  this  be  done 
even  if  addressing  these  considerations  means  ultimately  that  a  less  efficacious  mil- 
itary action  will  be  mounted.  Missions  which  are  designed  so  that  they  can  be  ac- 
complished rather  quickly,  if  unlikely  to  win  formal  and  informal  international 
approval,  are  more  likely  to  provoke  less,  and  less  intense,  international  disap- 
proval. By  contrast,  longer-term  missions  and,  as  I  will  explain  in  a  moment,  occu- 
pations will  require  international  authorization  and  even  if  it  does  not  erode,  it 
may  not  be  an  assurance  of  success. 


67 


International  Legal  Dynamics  and  the  Design  of  Feasible  Missions 

Thus,  consideration  of  the  legal  perspective  I  sketched  a  moment  ago  leads  to  a 
general  recommendation:  where  possible,  narrow  the  focus  of  the  mission  to  the 
neutralization  or  degrading  of  the  specific  terrorist  threat  and  not  to  a  regime 
change  of  the  government  which  has  served  as  the  cocoon  of  the  terrorist  group. 


Unquestionably,  transforming  a  regime  which  is  providing  refuge  and  a  launching 
pad  for  a  terrorist  group  into  a  regime  "enduring  freedom"  is  a  more  comprehen- 
sive solution  than  simply  degrading  the  capacities  of  the  terrorist  group  itself.  But 
aside  from  the  formidable  operational  difficulties  in  effecting  a  regime  change, 
which  I  have  considered  elsewhere,25  planners  cannot  ignore  the  intense  interna- 
tional political  and  legal  resistance  which  a  military  mission  of  this  sort  will 
provoke. 

A  military  action  against  a  specific  noxious  target  within  a  State  is  a  finite  and  tem- 
porally limited  military  rather  than  an  extended  counterinsurgency  action;  with  all 
the  controversy  it  may  excite  (and  I  will  consider  it  in  a  moment),  it  will  still  be  less 
internationally  controversial  than  an  action  to  change  the  entire  regime  within  the 
State.26  If  the  jurisprudence  of  the  International  Court  is  taken  as  a  reliable  indica- 
tor of  what  formal  international  law  currently  considers  lawful  self-defense,  the  law 
of  self-defense  appears  to  be  limited  to  response  to  and  neutralization  of  an  imme- 
diate threat,27  and  even  within  those  narrow  parameters,  international  appraisals 
of  lawfulness  may  vary. 

Contrast,  first,  the  international  legal  reactions  to  the  Clinton  administration's 
periodic  aerial  actions  against  Iraqi  air  defenses  with  the  objective  confined  to  "de- 
grading" them;  and,  second,  the  international  legal  reaction  to  the  US  invasion  of 
Iraq  in  order  to  change  the  regime.  Or,  to  take  a  rather  wild  hypothetical  scenario, 
imagine  the  contrasting  reactions  to  (I)  unilateral  ISAF  or  Afghan  military  action 
against  Al  Qaeda  or  Taliban  bases  in  the  frontier  areas  of  Pakistan  and  (ii)  unilat- 
eral ISAF  military  action  to  change  the  Pakistani  government  because  elements 
high  in  the  government  or  in  ISI  were  believed  to  be  supporting  the  Taliban  or  Al 
Qaeda. 

Afghanistan,  I  concede,  presented  a  difficult  case  for  military  planners.  In  2001, 
Al  Qaeda  was  effectively  integrated  in  the  Ministry  of  Defense  of  the  Taliban  gov- 
ernment. But  I  am  not  sure  that  even  this  overlap  required  conflating  the  Taliban 
and  Al  Qaeda  or  that  it  precluded  the  United  States  from  characterizing  the  adver- 
sary as  Al  Qaeda,  reserving  for  the  Taliban  government  the  status  of  an  obstacle  to 
reaching  the  actual  enemy,  rather  than  an  indistinguishable  part  of  the  enemy. 
Once  Al  Qaeda  and  the  Taliban  were  conflated,  however,  and  Afghan  regime 

68 


W.  Michael  Reisman 


change  became  an  ineluctable  part  of  the  mission,  it  was  no  longer  possible  to  con- 
centrate efforts  on  Al  Qaeda;  significant  resources  had  to  be  diverted  from  the  neu- 
tralization of  Al  Qaeda  to  creating  and  shoring  up  another  Afghan  government  and 
then  protecting  it  from  the  Taliban.  In  that  difficult  process,  military  planners  had 
to  accommodate  the  full  range  of  civil,  political  and  human  rights  standards  of 
contemporary  international  law,  which  are  demanded  with  ever  greater  intensity 
through  myriad  governmental  and  non-governmental  channels.  Regime  change  is 
perforce  a  comprehensive  program  and  brings  into  the  decision  process  a  wide 
range  of  non-governmental  organizations,  insisting  on  objectives  which,  however 
worthy,  detract  from  the  prosecution  of  a  more-focused  military  action;  the  more- 
focused  military  action  would  bring  in  far  fewer  and  more- focused  demands. 

VI 

A  brief  digression:  Perhaps  a  more  realistic  understanding  of  how  daunting  a  mis- 
sion regime  change  is,  especially  in  Afghanistan,  might  have  led  to  a  more  focused 
military  objective.  A  contemporary  essay  on  Afghanistan  appearing  in  the  most 
popular  online  encyclopedia  states: 

Once  in  power,  the  [People's  Democratic  Party  of  Afghanistan]  moved  to  permit 
freedom  of  religion  and  carried  out  an  ambitious  land  reform,  waiving  farmers'  debts 
countrywide.  They  also  made  a  number  of  statements  on  women's  rights  and 
introduced  women  to  political  life.  A  prominent  example  was  Anahita  Ratebzad  .  .  . 
who  wrote  the  famous  New  Kabul  Times  editorial  which  declared:  "Privileges  which 
women,  by  right,  must  have  are  equal  education,  job  security,  health  services,  and  free 
time  to  rear  a  healthy  generation  for  building  the  future  of  the  country . . .  educating 
and  enlightening  women  is  now  the  subject  of  close  government  attention."28 

Incidentally,  the  online  essay  is  not  referring  to  the  contemporary  government  of 
President  Hamid  Karzai  but  rather  to  the  regime  of  Taraki,  Amin,  and  Najibullah 
of  the  PDPA,  the  government  which  was  then  supported  by  the  Soviet  Union. 
The  essay  from  which  I  was  reading  a  moment  ago  continues: 

The  majority  of  people  in  the  cities  including  Kabul  either  welcomed  or  were 
ambivalent  to  these  policies.  However,  the  secular  nature  of  the  government  made  it 
unpopular  with  religiously  conservative  Afghans  in  the  villages  and  the  countryside, 
who  favoured  traditionalist  "Islamic"  restrictions  on  women's  rights  and  in  daily  life.29 

Does  it  sound  familiar? 


69 


International  Legal  Dynamics  and  the  Design  of  Feasible  Missions 

Ronald  Neumann,  formerly  the  US  ambassador  in  Kabul,  reported  that  a  recent 
poll  taken  in  Afghanistan  indicated  that  55  percent  of  the  respondents  wanted  the 
United  States  to  remain.30  That  figure  would  be  decisive  in  a  normal  civil  situation 
where  votes  decide.  But  in  a  belligerent  situation,  it  is  raw  power  that  decides.  And 
if  I  may  hazard  an  opinion,  I  would  suggest  that  the  balance  of  power  in  Afghani- 
stan tilts  in  favor  of  the  conservatizing  and  not  the  secularizing  elements.  More- 
over, the  relevant  elite  of  the  critical  contiguous  State  most  disposed  to  invest 
resources  in  trying  to  influence  developments  in  Afghanistan  also  appears  to  tilt  to- 
ward the  conservatizing  elements. 

The  would-be  regime  changer  should  bear  in  mind  that,  once  such  a  mission  is 
embarked  upon,  if  military  efforts  prove  indeterminative  at  acceptable  cost  levels, 
political  solutions  will  have  to  be  sought.  In  Afghanistan,  a  political  solution  would 
have  to  involve  the  Taliban.  At  a  minimum,  it  would  have  to  include  some  role  in 
power  for  the  Taliban  in  return  for  their  commitment  neither  to  host  nor  to  sup- 
port Al  Qaeda.  This  would  enable  the  United  States  to  concentrate  its  resources  on 
Al  Qaeda.  That  could  have  been  the  principal  objective  of  the  mission  from  the 
outset. 

I  have  taxed  you  with  this  little  excursus  from  the  subject  of  international  law 
and  expectations  of  international  lawfulness  to  emphasize  that  outside  powers,  if 
they  are  willing  to  invest  very  great  resources,  could  be  influential  factors  in  the 
Afghan  political  and  military  drama.  But  even  then,  the  outside  efforts  could  well 
prove  indecisive,  for  Afghanistan  is  locked  in  its  own  historical  process. 

VII 

I  have  recommended,  from  the  standpoint  of  international  law,  the  virtues  of  a 
"less-is-more"  approach  to  the  design  of  missions  when  international  expectations 
of  lawfulness  appear  unlikely  to  support  a  broader  mission.  But,  in  contexts  like  Af- 
ghanistan, is  "less"  really  likely  to  be  more  acceptable  to  the  institutions  and  jury- 
men of  international  law?  In  the  context  of  Afghanistan  and  its  unique 
geographical  factors,  can  unilateral  actions  directed  against  entities  like  Al  Qaeda, 
nesting  in  another  State,  ever  be  lawful?  And  how  can  one  prospectively  assess  what 
expectations  of  lawfulness  for  such  an  action  are  likely  to  be? 

I  do  not  intend  to  crunch  the  familiar  texts  on  the  use  of  force  but  rather  to  focus 
on  operative  expectations  of  lawfulness.  I  quote  from  an  online  report  of  the  Asso- 
ciated Press  (AP)  on  June  15,  2008. 

Afghan  President  Hamid  Karzai  threatened  Sunday  to  send  Afghan  troops  across  the 
border  to  fight  militants  in  Pakistan,  a  forceful  warning  to  insurgents  and  the  Pakistani 


70 


W.  Michael  Reisman 


government  that  his  country  is  fed  up  with  cross-border  attacks.  Karzai  said  that  in 
recent  fighting  in  Helmand  province,  where  hundreds  of  US  marines  have  been 
battling  insurgents  for  the  last  two  months,  most  of  the  fighters  came  from  Pakistan.31 

Of  interest  to  us  is  that  President  Karzai  indicated  that  he  believes  that  what  he  is 
threatening  is  a  form  of  lawful  self-defense.  He  stated  that  "Afghanistan  has  the 
right  to  self-defense,  and  because  militants  cross  over  from  Pakistan  cto  come  and 
kill  Afghan  and  kill  coalition  troops,  it  exactly  gives  us  the  right  to  do  the  same.'"32 
Karzai  even  threatened  targeted  assassinations  in  Pakistan  of  Baitullah  Mehsud, 
the  Taliban  leader  in  Pakistan,  and  Mullah  Omar,  the  leader  of  the  Taliban  in  Af- 
ghanistan and  de  facto  head  of  State  from  1996  to  2001. 

Pakistan's  reaction  to  Karzai's  statement  (and,  of  course,  it  is  not  the  first  time 
he  has  made  it)  was  interesting.  Yousuf  Raza  Gilani,  the  Pakistani  Prime  Minister, 
insisted,  according  to  the  Associated  Press,  on  Pakistani  sovereignty  over  its  terri- 
tory but  said  that  "the  Afghan-Pakistan  border  is  too  long  to  prevent  people  from 
crossing,  'even  if  Pakistan  puts  its  entire  army  along  the  border.'"33  In  the  mean- 
while, he  said  that  Pakistan  "is  seeking  peace  deals  with  militants  in  its  borders,  in- 
cluding with  Mehsud."34  This  particular  Pakistani  initiative  has  concerned  the 
United  States,  the  AP  continues,  "[b]ut  Pakistan  insists  it's  not  negotiating  with 
'terrorists,'  but  rather  with  militants  willing  to  lay  down  their  arms."35  Baitullah 
Mehsud  seems  to  see  it  differently.  He,  the  AP  adds,  "has  said  he  would  continue 
to  send  fighters  to  battle  US  forces  in  Afghanistan  even  as  he  seeks  peace  with 
Pakistan."36 

And,  one  might  add,  he  is  not  puffing.  The  Associated  Press  reports  that  "U.S. 
and  NATO  commanders  say  that  following  the  peace  agreements  [between  the 
Taliban  and  Pakistan]  this  spring,  attacks  have  risen  in  the  eastern  area  of  Afghani- 
stan along  the  border."37 

NATO's  ISAF  declined  to  comment  on  Karzai's  statement  but  unnamed  US  of- 
ficials were  willing  to  weigh  in,  on  condition  of  anonymity.  I  quote  their  statement: 

U.S.  officials  have  increased  their  warnings  in  recent  weeks  that  the  Afghan  conflict  will 
drag  on  for  years  unless  militant  safe  havens  in  Pakistan  are  taken  out.  Military  officials 
say  counterinsurgency  campaigns  are  extremely  difficult  to  win  when  militants  have 
safe  areas  where  they  can  train,  recruit  and  stockpile  supplies.38 

No  one  who  has  studied  counterinsurgency  will  contest  that.  The  Malayan 
Emergency,  which  is  the  poster  child  of  successful  counterinsurgencies — and 
which,  incidentally,  required  three  hundred  thousand  British  and  other  troops  and 
twelve  years — was  conducted  in  a  peninsula  whose  surrounding  waters  could  be 
controlled  by  the  British;  there  was  no  contiguous  friendly  or  passive  State  to 

71 


International  Legal  Dynamics  and  the  Design  of  Feasible  Missions 

provide  safe  redoubts  like  those  available  to  the  Taliban  and  Al  Qaeda  in  the  border 
areas  of  Pakistan.  Moreover,  the  insurgents  were  racially  distinct  from  the  majority 
population.  And  the  British  public  supported  the  mission. 

In  August  2007,  Senator  Barack  Obama  said,  in  a  speech  delivered  in  Washing- 
ton: "If  we  have  actionable  intelligence  about  high-value  terrorist  targets  and  Presi- 
dent Musharraf  won't  act,  we  will."39  The  claim  of  a  right  of  "hot  pursuit,"  even  in 
maritime  confrontations,  is  controversial.  In  the  Ym  Alone  arbitration,40  the  right 
of  pursuit  was  treaty-based  and,  hence,  applied  only  to  US  and  UK  flag  vessels. 
Moreover,  it  applied  only  to  pursuit  within  one  hour's  sailing  time  of  territorial 
waters.  So  the  tribunal's  holding,  which  is  not  distinguished  by  its  coherence,  re- 
lates to  treaty  interpretation  rather  than  a  pronouncement  of  customary  interna- 
tional law. 

Even  more  controversial  is  the  claim  of  a  right  of  hot  pursuit  across  terrestrial 
borders.  In  terms  of  theory,  the  UN  Charter  obviates  terrestrial  hot  pursuit,  for  the 
only  unilateral  action  available  to  a  State  is  self-defense  against  an  armed  attack; 
once  the  adversary  has  fled  the  attacked  State's  territory,  the  right  of  self-defense 
would  exhaust  itself.  In  theory,  further  prosecuting  action  that  had  commenced  as 
legitimate  self-defense  might  itself  degenerate  into  an  armed  attack. 

International  politics  and  the  use  of  the  military  instrument  as  part  of  it  have 
proved  to  be  more  complicated  than  the  simple  theory  of  the  Charter.  Instances  of 
hot  pursuit  of  an  adversary  which  has  entered  your  territory  as  well  as  anticipatory 
interdiction  of  an  enemy  force  sheltering  in  the  contiguous  territory  of  another 
State  have  been  occurring.  While  the  State  whose  territory  has  been  invaded  has  al- 
most always  (there  are  some  exceptions)  issued  a  protest,  it  is  harder  to  conclude 
that  the  international  legal  system,  as  a  whole,  has  unequivocally  condemned  each 
of  these  pursuits  or  generally  condemned  all  such  actions  in  all  circumstances.  To 
take  examples  only  from  this  annus  mirabilis,  consider  (I)  the  Turkish  pursuit  of 
the  Kurdistan  Workers'  Party  in  northern  Iraq,  (ii)  the  Colombian  pursuit  of  the 
Revolutionary  Armed  Forces  of  Colombia  in  northern  Ecuador  and  (iii)  President 
Karzai's  threat  to  send  Afghan  troops  into  Pakistan  in  pursuit  of  Taliban  there. 
What  was  the  operative  judgment  as  to  international  lawfulness  in  these  cases? 
What  sanction  was  applied,  if  transgression  there  was? 

Consider  the  paradigmatic  problem  of  which  the  war  in  Afghanistan  is  a  prime 
example:  irregular  non-State  forces  shelter  in  an  uncontrolled  area  of  State  A  from 
which  they  regularly  conduct  lethal  raids  into  State  B  and  then  withdraw  to  the 
safety  of  State  A.  According  to  the  International  Court,  the  actions  of  the  irregular 
forces  are  not  deemed  to  fulfill  the  "armed  attack"  requirement  of  Article  51  of  the 
Charter.  Consequently,  even  if  the  Court  were  to  expand  its  conception  of  the 
scope  of  self-defense  so  that  it  was  available  against  non-State  entities,  State  B  may 

72 


W.  Michael  Reisman 


not  respond  with  military  force.  State  B  is  confined  to  bringing  the  matter  to  the 
Security  Council.  Assume  that  State  B  does  bring  the  matter  to  the  Security  Coun- 
cil for  ten  consecutive  attacks  and,  in  each  instance,  the  Security  Council  issues  a 
resolution,  condemning  the  attacks  and  ordering  State  A  to  act  to  prevent  them. 
The  attacks  continue. 

At  a  certain  point,  State  B  will  enter  the  areas  of  State  A  where  the  irregulars  shel- 
ter and  seek  to  kill  or  capture  them.  Will  the  international  community,  through  its 
various  decision  processes,  condemn  and  effectively  sanction  the  action? 

The  international  legal  system  can  speak  with  great  subtlety  and  nuance.  In 
Corfu  Channel,41  the  International  Court  of  Justice  condemned  the  United  King- 
dom for  having  entered  Albanian  waters  without  the  Albanian  government's  con- 
sent. It  held  that  this  condemnation  was  itself  sufficient  sanction  and  allowed  the 
evidence  which  had  been  improperly  seized  to  be  admitted.  My  estimation  of  the 
situation  with  respect  to  cross-border  pursuit  is  that  there  will  always  be  a  formal 
condemnation  because  of  national  pride  and  concern  for  the  erosion  of  the  prin- 
ciple of  territorial  integrity  but  there  will  only  be  meaningful  and  sanction-related 
condemnations  by  the  international  decision  processes  in  those  cases  in  which  the 
cross-border  action  is  deemed  to  have  been  unnecessary,  disproportionate  or  in 
violation  of  the  differentiation  principle. 

It  is,  of  course,  by  the  application  of  these  criteria  that  the  law  of  war  has  tradi- 
tionally assessed  the  lawfulness  of  actions  in  new  situations.  Whether  the  UN  Secu- 
rity Council  or  the  International  Criminal  Court  will  look  at  it  that  way  remains  to 
be  seen.  But  even  a  condemnation  of  an  internationally  unauthorized  military  ac- 
tion in  another  State  which  does  not  affect  that  State's  territory  or  political  inde- 
pendence will  be  less  severe  than  a  condemnation  for  a  temporally  extended  and 
vigorously  resisted  regime  change. 

Notes 

1.  W.  Michael  Reisman,  The  Democratization  of  Contemporary  International  Law-Making 
Processes  and  the  Differentiation  of  Their  Application,  in  DEVELOPMENTS  OF  INTERNATIONAL 
LAW  IN  TREATY  MAKING  15  R.  Wolfrum  &  V.  Roben  eds.,  2005),  reprinted  in  2  TRANSNATIONAL 
Dispute  Management  3  (2005). 

2.  See  W.  Michael  Reisman,  On  the  Causes  of  Uncertainty  and  Volatility  in  International 
law,  in  the  shifting  allocation  of  authority  in  international  law:  considering 
Sovereignty,  Supremacy  and  Subsidiarity:  Essays  in  Honour  of  Professor  Ruth 
LAPIDOTH  33  (Tomer  Broude  &  Yuval  Shany  eds.,  2008). 

3.  see  john  k.  cooley,  unholy  wars:  afghanistan,  america,  and  international 
Terrorism  (2000). 


73 


International  Legal  Dynamics  and  the  Design  of  Feasible  Missions 

4.  Refugees  from  Afghanistan:  The  world's  largest  single  refugee  group,  AMNESTY  INTERNA- 
TIONAL, http://www.amnesty.org/en/library/asset/ASAl  1/016/1999/en/dom-ASAl  10161999en 
.html. 

5.  Afghanistan — Taliban  Era,  http://www.globalsecurity.org/military/world/afghanistan/ 
taliban.htm  (last  visited  Oct.  15,  2008). 

6.  Operation  Enduring  Freedom  is  the  title  given  to  the  joint  US-Afghan  counterterrorism 
operations  in  Afghanistan  from  October  7,  2001  until  October  6,  2005.  See  BENJAMIN  S. 
Lambeth,  Air  Power  Against  Terror:  America's  Conduct  of  Operation  Enduring 
Freedom  (2005). 

7.  S.C.  Res.  1383,  considerandum  5,  U.N.  Doc.  S/RES/1383  (Dec.  6,  2001). 

8.  S.C.  Res.  1214,  considerandum  13,  U.N.  Doc.  S/RES/1214  (Dec.  8,  1998). 

9.  Id.,  para.  13. 

10.  S.C.  Res.  1267,  considerandum  6,  U.N.  Doc.  S/RES/1267  (Oct.  15,  1999). 

11.  S.C.  Res.  1333,  consideranda  10  and  7,  U.N.  Doc.  S/RES/1333  (Dec.  19,  2000). 

12.  Id.,  considerandum  14. 

13.  S.C.  Res.  1363,  para.  4,  U.N.  Doc.  S/RES/1363  (July  30,  2001). 

14.  S.C.  Res.  1368,  U.N.  Doc.  S/RES/1368  (Sept.  12,  2001). 

15.  U.N.  Charter  art.  51. 

16.  S.C.  Res.  1373,  para.  2,  U.N.  Doc.  S/RES/1373  (Sept.  28,  2001). 

17.  S.C.  Res.  1378,  para.  1,  U.N.  Doc.  S/RES/ 1378  (Nov.  14,2001). 

18.  Id.,  considerandum  2. 

19.  Id.,  considerandum  4  (emphasis  added). 

20.  Agreement  on  Provisional  Arrangements  in  Afghanistan  Pending  the  Re-establishment 
of  Permanent  Government  Institutions,  Dec.  5,  2001,  available  at  http://www.un.org/News/dh/ 
latest/afghan/afghan-agree.htm. 

21.  S.C.  Res.  1383,  supra  note  7,  paras.  1-3. 

22.  S.C.  Res.  1386,  considerandum  8  &  para.  1,  U.N.  Doc.  S/RES/1386  (Dec.  20,  2001). 

23.  See  W.  Michael  Reisman,  The  United  States  and  International  Institutions,  41  SURVIVAL 
62(1999). 

24.  See  W.  Michael  Reisman  &  Andrea  Armstrong,  The  Past  and  Future  of  the  Claim  of  Pre- 
emptive Self-Defense,  100  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  525  (2006). 

25.  W.  Michael  Reisman,  Why  Regime  Change  Is  (Almost  Always)  a  Bad  Idea,  98  AMERICAN 
JOURNAL  OF  INTERNATIONAL  LAW  516  (2004),  also  available  at  2004  PROCEEDINGS  OF  THE 

American  Society  of  International  Law  290. 

26.  It  may  even  be  viewed  as  lawful,  as  I  will  explain  below. 

27.  See,  e.g.,  Military  and  Paramilitary  Activities  (Nicar.  v.  U.S.),  1986  I.C.J.  14  (June  27). 

28.  Wikipedia,  Afghanistan,  http://en.wikipedia.org/wiki/Afghanistan  (last  visited  Aug.  30, 
2008). 

29.  Id. 

30.  ABC  News/BBC  World  Service  Poll,  Afghanistan:  Where  Things  Stand,  Dec.  7,  2006, 
available  at  http://abcnews.go.com/images/politics/afghanistan_poll_061205.pdf. 

31.  Carlotta  Gall,  Karzai  Threatens  to  Send  Soldiers  to  Pakistan,  NEW  YORK  TIMES,  June  16, 
2008,  at  A6. 

32.  Id. 

33.  Afghan  President:  Til  Send  Troops  to  Pakistan,  THE  ASSOCIATED  PRESS,  June  15,  2008, 
available  at  http://www.foxnews.com/story/0,2933,367 184,00. html. 

34.  Id. 

35.  Id. 


74 


W.  Michael  Reisman 


36.  Id. 

37.  Id. 

38.  Id. 

39.  Statement  of  Barack  Obama,  available  at  http://factcheck.barackobama.com/factcheck/ 
2008/06/ 1 9/bin_laden_death_penalty.php. 

40.  I'm  Alone  Arbitration  (U.S.  v.  U.K.),  3  R.  Int'l  Arb.  Awards  1609  (1935). 

41.  Corfu  Channel  (U.K.  v.  Alb.),  1949  I.C.J.  17  (Sept.  30,  1947). 


75 


PART  II 


THE  LEGAL  BASIS  FOR 
MILITARY  OPERATIONS 


IV 


Afghanistan:  Hard  Choices  and  the 
Future  of  International  Law 


John  F.  Murphy1 


As  I  began  my  work  on  this  article,  the  news  out  of,  and  the  commentary 
about,  Afghanistan  was  grim.  For  example,  a  United  Nations  human  rights 
team  has  reportedly  found  "convincing  evidence"  that  ninety  civilians,  including 
sixty  children,  were  killed  in  airstrikes  on  a  village  in  western  Afghanistan.1  Ac- 
cording to  a  Time  magazine  article: 

There  has  been  a  dramatic  series  of  recent  attacks  by  the  Taliban:  a  mass  assault  on  jail 
freed  hundreds  of  prisoners,  and  a  suicide  bombing  outside  the  Indian  Embassy  on 
July  7  killed  40  and  injured  over  100.  Many  of  these  assaults  are  planned  and  supported 
from  safe  havens  across  the  border  in  the  tribal  areas  of  Pakistan.  Western  casualties  are 
climbing;  the  last  two  months  exceeded  the  monthly  death  toll  in  Iraq.  On  July  13,  nine 
U.S.  soldiers  were  killed  when  Taliban  fighters  swarmed  over  their  base  in  the  eastern 
province  of  Kunar — the  worst  attack  in  three  years.2 

In  response  to  the  Taliban  attacks  from  the  tribal  areas  of  Pakistan,  President 
George  W.  Bush  has  reportedly  authorized  attacks  by  US  special  operations  forces 
against  the  Taliban  in  Pakistan.3  This  in  turn  has  precipitated  a  strong  protest  from  the 
newly  elected  Pakistani  government  of  Asif  Ali  Zardari,  including  a  promise  by  Paki- 
stan's top  army  officer  to  defend  the  country's  sovereignty  "at  all  costs."4 


*  Professor  of  Law,  Villanova  University  School  of  Law. 


Afghanistan:  Hard  Choices  and  the  Future  of  International  Law 

There  are  also  recent  claims  that  Afghanistan  has  become  a  "narco-State."5  Ac- 
cording to  these  claims,  Hamid  Karzai,  the  President  of  Afghanistan,  and  the 
Afghan  government  are  deeply  involved  in 

protecting  the  opium  trade — by  shielding  it  from  American-designed  policies.  While  it 
is  true  that  Karzai's  Taliban  enemies  finance  themselves  from  the  drug  trade,  so  do 
many  of  his  supporters.  At  the  same  time,  some  of  our  NATO  allies  have  resisted  the 
anti-opium  offensive,  as  has  our  own  Defense  Department,  which  tends  to  see 
counternarcotics  as  other  people's  business  to  be  settled  once  the  war-fighting  is  over. 
The  trouble  is  that  the  fighting  is  unlikely  to  end  as  long  as  the  Taliban  can  finance 
themselves  through  drugs — and  as  long  as  the  Kabul  government  is  dependent  on 
opium  to  sustain  its  own  hold  on  power.6 

Even  if  one  would  not  go  so  far  as  to  agree  with  a  recent  statement  by  a  European 
diplomat  with  substantial  experience  in  Afghanistan  that  Afghanistan  is  "in  its 
worst  shape  since  200 1,"7  it  seems  clear  that  the  United  States  and  its  allies  are  cur- 
rently facing  serious  challenges  in  Afghanistan.  It  is  also  clear  that  many  of  the  chal- 
lenges raised  by  developments  in  Afghanistan  constitute  major  challenges  to 
international  law  and  international  institutions.  The  thesis  of  this  article  is  that 
these  challenges  will  require  the  United  States  and  other  members  of  the  world 
community  to  make  hard  choices  that  will  significantly  affect  the  future  of  interna- 
tional law. 

I  will  begin  with  a  discussion  of  the  backdrop  to  the  current  crisis  in  Afghani- 
stan, starting  with  the  events  that  led  to  the  invasion  by  US  and  allied  forces  in 
200 1 .  In  this  section,  as  well  as  in  subsequent  sections  of  this  article,  the  focus  is  pri- 
marily, but  by  no  means  exclusively,  on  issues  of  the  jws  ad  bellum,  the  law  of  resort 
to  the  use  of  armed  force;  the  jus  in  bello,  the  law  regulating  the  way  the  armed  force 
is  employed,  i.e.,  the  law  of  armed  conflict;  and  international  human  rights.  I  will 
also  explore  some  issues  of  governance,  the  roles  of  the  United  Nations  and  NATO, 
problems  created  by  the  use  of  the  tribal  areas  in  Pakistan  by  the  Taliban  and  al 
Qaeda  as  a  safe  haven,  and  the  impact  on  Afghanistan  of  the  current  unstable  polit- 
ical situation  in  Pakistan. 

The  Backdrop 

It  may  come  as  a  surprise  to  some  in  light  of  the  highly  negative  images  of  Afghani- 
stan created  by  the  reign  of  the  Taliban  that  Afghanistan  enjoyed  substantial  peri- 
ods of  stability  and  enlightened  governance.8  The  period  of  stability  began  after 
King  Amanullah  Khan  (1919-29)  launched  attacks  on  British  forces  in  Afghani- 
stan shortly  after  taking  power  and  won  complete  independence  from  Britain,  a 

80 


John  F.  Murphy 


reality  established  by  the  Treaty  of  Rawalpindi  on  August  8,  1919.  Reportedly, 
Khan  was  considered  a  secular  modernizer  presiding  over  a  government  in  which 
all  ethnic  minorities  participated.  He  was  succeeded  by  King  Mohammad  Nadir 
Shah  (1929-33),  and  then  by  King  Mohammad  Zahir  Shah.  "Zahir  Shah's  reign 
(1933-73)  is  remembered  fondly  by  many  older  Afghans  for  promulgating  a  con- 
stitution in  1964  that  established  a  national  legislature  and  promoting  freedoms  for 
women,  including  freeing  them  from  covering  their  face  and  hair."9  He  made, 
however,  what  was  possibly  a  fatal  mistake  when  he  entered  into  a  significant  polit- 
ical and  purchase  relationship  with  the  Soviet  Union. 

In  the  1970s,  Afghanistan  slid  into  instability  when  the  diametrically  opposed 
Communist  Party  and  Islamic  movements  grew  in  strength.  As  he  was  receiving 
medical  treatment  in  Italy,  Zahir  Shah  was  overthrown  by  his  cousin,  Mohammad 
Daoud,  a  military  leader  who  established  a  dictatorship  with  strong  State  involve- 
ment in  the  economy.  The  Communist  Party  overthrew  Daoud  in  1978,  led  by  Nur 
Mohammad  Taraki,  who  was  displaced  a  year  later  by  Hafizullah  Amin,  leader  of  a 
rival  faction.  They  tried  to  impose  radical  socialist  change,  in  part  by  redistributing 
land  and  bringing  more  women  into  government,  sparking  rebellion  by  Islamic 
parties  opposed  to  such  moves.  On  December  27,  1979,  the  Soviet  Union  sent 
troops  into  Afghanistan  to  prevent  a  seizure  of  power  by  the  Islamic  militias, 
known  as  the  mujahedin  (Islamic  fighters).  During  their  invasion,  the  Soviets  re- 
placed Hafizullah  Amin  with  an  ally,  Babrak  Karmal. 

The  Soviet  occupation  forces  failed  in  their  attempts  to  pacify  the  country.  A 
major  reason  for  this  failure  was  that  the  mujahedin  benefitted  from  US  weapons 
and  assistance,  provided  by  the  US  Central  Intelligence  Agency  (CIA)  in  coopera- 
tion with  Pakistan's  Inter-Services  Intelligence  directorate  (ISI).  Especially  useful 
in  combat  were  portable  shoulder-fired  anti-aircraft  systems  called  "Stingers," 
which  proved  highly  effective  against  Soviet  aircraft.  Also  useful  to  the  mujahedin 
was  a  large  network  of  natural  and  man-made  tunnels  and  caves  throughout  Af- 
ghanistan, in  which  they  hid  and  stored  weaponry. 

As  the  Soviet  losses  mounted,  Soviet  domestic  opinion  turned  against  the  war. 
In  1986,  after  Mikhail  Gorbachev  came  into  power,  the  Soviets  replaced  Karmal 
with  the  director  of  Afghan  intelligence,  Najibullah  Ahmedzai  (known  by  his  first 
name).  On  April  14,  1988,  Gorbachev  agreed  to  a  UN-brokered  accord  (the 
Geneva  Accords)  requiring  the  Soviet  Union  to  withdraw.  The  withdrawal  was 
completed  by  February  15, 1989,  leaving  in  place  the  weak  Najibullah  government. 
On  September  13, 1991,  the  Russian  and  US  governments  agreed  to  a  cutoff  of  mil- 
itary aid  to  the  Afghan  combatants.  With  Soviet  backing  withdrawn,  Najibullah's 
position  became  untenable.  His  government  fell,  and  the  mujahedin  regime  came 
into  power  on  April  18,  1992. 

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Afghanistan:  Hard  Choices  and  the  Future  of  International  Law 

There  were  major  differences  among  the  mujahedin  factions,  however,  and  civil 
war  ensued  (1992-96).  Four  years  of  civil  war  led  to  increased  support  for  the 
Taliban  as  a  movement  that  could  deliver  Afghanistan  from  the  factional  infight- 
ing. The  Taliban  took  control  of  Kabul  on  September  27,  1996.10 

It  didn't  take  long  for  the  Taliban  regime  to  lose  international  and  domestic 
support  as  it  imposed  strict  adherence  to  Islamic  customs  in  areas  it  controlled  and 
employed  harsh  punishments,  including  summary  executions.  The  Taliban  autho- 
rized its  "Ministry  for  the  Promotion  of  Virtue  and  the  Suppression  of  Vice"  to  use 
physical  punishments  to  enforce  strict  Islamic  practices,  including  bans  on  televi- 
sion, Western  music  and  dancing.  It  prohibited  women  from  attending  school  or 
working  outside  the  home  except  in  health  care,  and  it  publicly  executed  some 
women  for  adultery.  In  March  2001,  the  Taliban  committed  the  act  that  gained  the 
most  international  condemnation:  it  blew  up  two  large  statues  carved  into  hills 
above  Bamiyan  city  that  were  widely  recognized  as  works  of  art,  as  representations 
of  idolatry. 

The  Taliban's  hosting  of  al  Qaeda's  leaders  increasingly  concerned  the  Clinton 
administration.  In  April  1998,  then-US  Ambassador  to  the  United  Nations  Bill 
Richardson  visited  Afghanistan  and  asked  the  Taliban  to  hand  over  bin  Laden,  but 
the  Taliban  refused  to  do  so.  After  the  August  7, 1998  al  Qaeda  bombings  of  US  em- 
bassies in  Kenya  and  Tanzania,  the  Clinton  administration  increased  the  pressure 
on  the  Taliban,  imposing  US  sanctions  and  gaining  adoption  of  UN  sanctions  as 
well.  On  August  20, 1998,  the  United  States  fired  cruise  missiles  at  alleged  al  Qaeda 
training  camps  in  eastern  Afghanistan  but  failed  to  hit  bin  Laden.  According  to  re- 
ports, Clinton  administration  officials  said  "they  did  not  try  to  oust  the  Taliban 
from  power  with  US  military  force  because  domestic  US  support  for  those  steps 
was  then  lacking  and  the  Taliban's  opponents  were  too  weak  and  did  not  necessar- 
ily hold  US  values."11 

For  its  part,  the  George  W.  Bush  administration  initially  largely  continued  the 
Clinton  administration's  policy  toward  Afghanistan — applying  economic  and  po- 
litical pressure  while  retaining  dialogue  with  the  Taliban,  and  refraining  from  pro- 
viding military  assistance  to  the  Northern  Alliance,  the  primary  opponents  of  the 
Taliban.  Its  major  deviation  from  the  Clinton  administration's  policy  was  to  inten- 
sify talks  with  Pakistan  in  an  effort  to  end  its  support  of  the  Taliban. 

Although  it  was  fighting  with  some  Iranian,  Russian  and  Indian  financial  and 
military  support,  the  Northern  Alliance  continued  to  lose  ground  to  the  Taliban  af- 
ter it  lost  Kabul  in  1996.  By  the  time  of  the  September  1 1  attacks,  the  Taliban  con- 
trolled at  least  75  percent  of  the  country.  The  Alliance  suffered  a  major  setback  on 
September  9,  2001,  two  days  before  the  September  1 1  attacks,  when  Ahmad  Shah 


82 


John  F.  Murphy 


Masud,  the  leader  of  the  Northern  Alliance  and  a  highly  respected  military  strate- 
gist, was  assassinated  by  alleged  al  Qaeda  suicide  bombers  posing  as  journalists. 

The  September  1 1  Attacks  and  Operation  Enduring  Freedom 

After  the  September  11, 2001  attacks,  the  policy  of  the  Bush  administration  toward 
Afghanistan  changed  dramatically:  it  decided  to  overthrow  the  Taliban  by  military 
force  when  it  refused  to  surrender  bin  Laden  to  the  United  States.  Prior  to  the 
United  States  taking  military  action  against  Afghanistan,  the  UN  Security  Council 
adopted  two  resolutions:  Resolution  136812  and  Resolution  1373. 13  In  the  pream- 
ble of  Resolution  1368  the  Security  Council  recognizes  "the  inherent  right  of  indi- 
vidual or  collective  self-defense  in  accordance  with  the  Charter"  and  in  its  first 
operative  paragraph  its  determination  that  such  acts  (i.e.,  the  terrorist  attacks  of 
September  11)  are  "a  threat  to  international  peace  and  security."  In  its  fifth  opera- 
tive paragraph  the  Council  "expresses  its  readiness  to  take  all  necessary  steps  to  re- 
spond to  the  terrorist  attacks  of  1 1  September  2001 "  Declaring  the  September 

1 1  attacks  as  a  threat  to  international  peace  and  security  brings  them  within  the 
scope  of  Chapter  VII  of  the  UN  Charter  and  acts  as  a  possible  predicate  to  a  UN  en- 
forcement action.  Expressing  its  willingness  to  "take  all  necessary  steps  to  respond" 
to  the  terrorist  attacks  implies  that  the  Council  might  in  the  future,  if  necessary,  es- 
tablish a  peace  enforcement  force  or  authorize  the  use  of  force  by  member  States.14 
Recognizing  that  the  inherent  right  of  individual  or  collective  self-defense  applies 
to  the  September  1 1  attacks  appears  at  first  blush  to  be  mere  surplusage,  but  has 
significance  for  two  reasons.  First,  under  Article  51  of  the  UN  Charter,  the  right  to 
individual  or  collective  self-defense  is  only  an  interim  right — "until  the  Security 
Council  has  taken  measures  necessary  to  maintain  international  peace  and  secu- 
rity." The  express  recognition  of  the  right  in  this  instance  arguably  implies  that  the 
Council  has  no  intention  to  intervene  in  such  a  way  as  to  suspend  the  right15  and 
would,  of  course,  face  a  certain  veto  by  the  United  States  should  it  attempt  to  do  so. 
Second,  there  are  those  who  argue  that  the  right  of  individual  or  collective  self- 
defense  applies  only  to  an  "armed  attack"  by  a  State  and  not  to  armed  attacks  by 
non-State  actors.  To  the  contrary  it  has  been  argued  that  in  Resolution  1368  the  Se- 
curity Council  has  implicitly  recognized  that  the  right  of  individual  or  collective 
self-defense  applies  equally  to  attacks  by  non-State  actors  and  attacks  by  States.16 
In  the  preamble  of  Resolution  1373,  the  Security  Council  reaffirms  Resolution 
1368  and  "its  unequivocal  condemnation"  of  the  9/11  terrorist  attacks,  its  determi- 
nation that  the  attacks  constituted  a  threat  to  international  peace  and  security,  the 
inherent  right  of  individual  and  collective  self-defense,  and  "the  need  to  combat  by 
all  means,  in  accordance  with  the  Charter  of  the  United  Nations,  threats  to 

83 


Afghanistan:  Hard  Choices  and  the  Future  of  International  Law 

international  peace  and  security  caused  by  terrorist  acts."  In  the  rest  of  this  land- 
mark Resolution,  however,  the  Council  shifted  its  focus  away  from  the  9/11  attacks 
and  Afghanistan  to  actions  that  States  must  take  to  "prevent  and  suppress  the  fi- 
nancing of  terrorist  acts,"  a  subject  outside  the  scope  of  this  article. 

Major  combat  in  Afghanistan  began  on  October  7,  2001.  The  campaign  was 
given  the  name  "Operation  Enduring  Freedom."17  Even  before  President  Bush's 
September  20, 2001  address  to  a  joint  session  of  Congress,  in  which  he  issued  an  ul- 
timatum to  the  Taliban  that  it  deliver  to  US  authorities  all  the  leaders  of  al  Qaeda 
"who  hide  in  your  land"  or  "share  in  their  fate,"18  the  United  States  had  entered 
into  extensive  diplomatic  negotiations  with  its  allies,  seeking  their  understanding 
of,  and  ideally  cooperation  for,  a  military  response.  A  key  breakthrough  was  with 
then-president  General  Pervez  Musharraf  of  Pakistan.  Although  Pakistan's  intelli- 
gence services  had  supported  the  Taliban  in  its  rise  to  power  and  Islamic  groups  in 
Pakistan  objected  to  cooperation  with  the  United  States,  Musharraf  promptly  con- 
demned the  attacks  and  the  Taliban  for  harboring  bin  Laden,  and  agreed  to  allow 
the  United  States  and  its  allies  to  use  Pakistani  airspace  and  eventually  airbases.  The 
former  Soviet  republics  of  Uzbekistan,  Kyrgyzstan,  and  Tajikistan,  which  faced  in- 
ternal threats  from  al  Qaeda-linked  Islamist  movements,  agreed  to  permit  US 
forces  to  operate  from  bases  in  their  territory  in  exchange  for  increased  US  aid  and 
closer  political  and  security  ties.  Although  several  European  States  offered  to  pro- 
vide military  support,  the  United  States  decided  to  rely  primarily  on  its  own  forces 
and  those  of  the  Northern  Alliance,  with  limited  military  assistance  from  British, 
Canadian  and  Australian  troops. 

Combat  operations  in  Afghanistan  initially  consisted  primarily  of  US  airstrikes 
on  Taliban  and  al  Qaeda  forces,  aided  by  joint  efforts  between  small  numbers  (ap- 
proximately one  thousand)  of  US  special  operations  forces  and  the  Northern  Alli- 
ance and  Pashtun  anti-Taliban  forces.  At  the  height  of  the  fighting  in  October 
through  December  2001,  some  US  ground  units  (about  thirteen  hundred  Marines) 
moved  into  Afghanistan  to  pressure  the  Taliban  around  Kandahar,  but  there  were 
few  pitched  battles  between  US  and  Taliban  forces.  Most  of  the  ground  combat  was 
between  the  Taliban  and  its  Afghan  opponents.19 

A  key  turning  point  in  the  conflict  came  when  Taliban  forces  lost  Mazar-e- 
Sharif  on  November  9,  2001.  The  Taliban  regime  unraveled  rapidly  thereafter. 
Northern  Alliance  forces  entered  Kabul,  the  capital  of  Afghanistan,  on  November 
12,  2001,  to  "general  jubilation."20  The  Taliban  subsequently  lost  the  south  and 
east  to  pro-US  Pashtun  leaders,  such  as  Hamid  Karzai,  the  current  president  of  Af- 
ghanistan. The  end  of  the  Taliban  regime  is  generally  dated  as  December  9,  when 
the  Taliban  surrendered  Kandahar,  leaving  it  under  tribal  law  administered  by 
Pashtun  leaders.21 


84 


John  F.  Murphy 


Some  of  the  remaining  Taliban  and  al  Qaeda  troops  retreated  to  tunnel  com- 
plexes built  to  house  mujahedin  fighting  the  Soviets,  such  as  at  Tora  Bora,  near  the 
Pakistani  border.  On  December  16,  supported  by  US  precision  bombing,  local 
forces  the  Americans  dubbed  the  "Eastern  Alliance"  captured  Tora  Bora.  There 
was  no  follow-up,  however,  by  the  Eastern  Alliance  and  insufficient  US  ground 
forces,  to  prevent  hundreds  of  al  Qaeda  members,  possibly  including  bin  Laden, 
from  escaping  into  the  relatively  lawless  tribal  regions  of  Pakistan.  A  later  attack  on 
an  al  Qaeda  cave  complex  in  February  and  March  2002  was  more  successful.  This 
time,  over  one  thousand  US  infantrymen  led  the  assault,  called  Operation  Ana- 
conda, against  regrouping  al  Qaeda  in  the  Shah-i-kot  valley,  and  succeeded  in  pre- 
venting most  of  the  al  Qaeda  fighters  from  escaping. 

Thereafter,  remnants  of  al  Qaeda  mostly  scattered  to  tribal  areas  of  Pakistan  and 
Afghanistan.  Cooperative  combat  operations  between  the  US  and  allied  forces  and 
some  local  warlords  continued,  but  these  were  small  in  comparison  with  the  scale 
of  Operation  Anaconda  or  the  campaign  at  Tora  Bora.  On  May  1,  2003,  then- 
Secretary  of  Defense  Rumsfeld  announced  an  end  to  "major  combat  operations."22 

Before  turning  to  the  post-conflict  efforts  toward  stabilization  and  reconstruc- 
tion, let  us  consider  a  few  jus  ad  bellum  and  jus  in  hello  issues  that  arose  prior  to  or 
during  the  major  combat  operations  in  Afghanistan.  We  have  already  briefly  con- 
sidered the  claim  that  the  United  States  and  its  allies  violated  the  jus  ad  bellum  be- 
cause Article  51  of  the  UN  Charter  does  not  permit  the  use  of  armed  force  in  self- 
defense  against  an  armed  attack  by  non-State  actors.23  Yoram  Dinstein  has  noted 
that,  "[i]n  the  past,  many  commentators  admittedly  argued  that  the  expression 
'armed  attack'  in  Article  51  does  not  apply  to  every  armed  attack,  'regardless  of  the 
source,'  but  only  to  an  armed  attack  by  another  State."24  Dinstein  goes  on  to  state, 
however,  that  given  the  response  of  the  international  community  to  9/1 1,  "all  lin- 
gering doubts  on  this  issue  have  been  dispelled."  The  responses  of  the  international 
community  to  the  9/11  events  cited  by  Dinstein  include  Security  Council  Resolu- 
tions 1368  and  1373;  the  invocation  of  Article  5  of  the  NATO  Treaty,  which  pro- 
vides that  an  armed  attack  against  one  or  more  of  the  Allies  in  Europe  or  North 
America  "shall  be  considered  an  attack  against  them  all,"  by  the  Atlantic  Council;25 
and  a  resolution  by  the  Ministers  of  Foreign  Affairs,  acting  as  an  Organ  of  Consul- 
tation, in  application  of  the  1947  Inter- American  Treaty  of  Reciprocal  Assistance, 
stating  that  "these  terrorist  attacks  against  the  United  States  of  America  are  attacks 
against  all  American  States."26 

Assuming  that  the  shocking  nature  of  the  attacks  of  9/1 1,  and  the  international 
community's  response  to  them,  dispels  any  doubts  that  they  constituted  an  armed 
attack  within  the  scope  of  Article  51,  it  does  not  necessarily  follow  that  any  use  of 
armed  force  by  terrorists  constitutes  such  an  "armed  attack."  This  remains  a 

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Afghanistan:  Hard  Choices  and  the  Future  of  International  Law 

debatable  issue,  and  we  shall  return  to  it  later  in  this  article  when  we  consider  the 
legality  of  the  US  use  of  armed  force  against  the  Taliban  and  al  Qaeda  in  Pakistan.27 

The  increased  use  of  high-technology  warfare  in  Afghanistan,  especially  the  use 
of  so-called  "smart  bombs,"  guided  by  Global  Positioning  System  satellites,  re- 
sulted in  relatively  low  civilian  casualties.  Nonetheless,  there  were  some  mistakes 
made,28  and  the  US  military  was  criticized  for  some  operations  that  resulted  in  ci- 
vilian casualties.29  As  noted  at  the  beginning  of  this  article,  the  issue  of  allegedly  ex- 
cessive civilian  casualties  has  become  especially  acute  recently,  and  we  will  return 
to  it  later. 

Another  self-defense  issue  arising  out  of  Operation  Enduring  Freedom  is 
whether  the  right  of  self-defense  encompasses  "regime  change"  or  the  removal  of 
the  government  in  power,  in  this  case  the  Taliban.  In  the  case  of  the  Persian  Gulf 
conflict  of  1991  against  Iraq,  there  was  no  "march  to  Bagdad"  to  remove  the 
Saddam  Hussein  regime.  Rather,  President  George  H.W.  Bush  made  the  political 
decision  to  stop  the  attack  in  Iraq  well  short  of  an  invasion  of  Bagdad.  It  is  debat- 
able whether  Security  Council  Resolution  678,  which  authorized  member  States  to 
use  armed  force  against  Iraq  if  it  failed  to  comply  fully  with  its  resolutions  on  or  be- 
fore January  15,  1991,  could  have  been  interpreted  to  allow  the  removal  of  the 
Saddam  Hussein  regime.30 

With  respect  to  Operation  Enduring  Freedom,  some  have  questioned  whether 
self-defense  under  Article  51  of  the  UN  Charter  permitted  the  removal  of  the 
Taliban  from  power.31  Arguably,  while  it  was  permissible  for  Enduring  Freedom  to 
eliminate  the  military  capacity  of  the  Taliban  and  al  Qaeda,  in  order  to  prevent  a 
future  attack  by  them,  "[e]liminating  the  whole  government  structure  created  by 
the  Taliban,  as  a  war  aim,  was  beyond  necessary  self-defense"  and  therefore  a  dis- 
proportionate use  of  force.32 

Interestingly,  US  Secretary  of  State  Colin  Powell  reportedly  indicated  that  the 
United  States  would  not  seek  to  eliminate  the  Taliban  entirely33  and  that  Northern 
Alliance  forces  had  promised  US  officials  they  would  not  enter  Kabul.34  Under 
these  circumstances,  the  United  States  "may  not  be  responsible  for  a  dispropor- 
tionate use  of  force."35 

From  this  account,  however,  it  appears  that,  although  the  United  States  may  not 
have  intended  to  eliminate  the  Taliban  entirely,  because  it  hoped  to  attract  moder- 
ate Taliban  to  the  US  side,  it  did  intend  to  replace  the  radical  Taliban  leaders  and  to 
ensure  that  the  new  government  of  Afghanistan  would  not  follow  the  policies  of 
these  Taliban  leaders.  It  is  questionable,  at  best,  whether  this  goal  would  be  incom- 
patible with  the  right  of  self-defense. 


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Post-War  Stabilization  and  Reconstruction 

Despite  George  W.  Bush's  sharp  criticism  of  "nation  building"  during  his  2000 
election  campaign,  it  was  immediately  apparent  to  the  Bush  administration  that 
nation  building  was  urgently  required  in  Afghanistan.  Moreover,  despite  the  dis- 
trust of  the  United  Nations  by  many  in  the  administration,  President  Bush  called 
on  the  United  Nations  to  help  rebuild  a  post-war  Afghanistan.  During  the  1990s, 
after  playing  a  major  role  in  ending  the  Soviet  occupation,  the  United  Nations  em- 
ployed a  succession  of  mediators  in  an  effort  to  achieve  a  government  selected  by  a 
traditional  assembly,  or  loyajirga.56  These  efforts  were  unsuccessful,  however,  be- 
cause UN-mediated  cease-fires  between  warring  factions  always  broke  down. 
Non-UN  initiatives  also  made  little  progress,  particularly  the  "Six  Plus  Two"  mul- 
tilateral contact  group,  which  began  meeting  in  1997.37 

Although  he  had  resigned  in  frustration  in  1999,  immediately  after  the  Sep- 
tember 11,  2001  attacks,  former  UN  mediator  Lakhdar  Brahimi  was  brought 
back.  On  November  14,  2001,  the  Security  Council  adopted  Resolution  1378, 38 
which  called  for  a  "central"  role  for  the  United  Nations  in  establishing  a  transi- 
tional administration  and  invited  member  States  to  send  peacekeeping  forces  to 
promote  stability  and  the  delivery  of  aid.  After  the  fall  of  Kabul  in  November  2001, 
the  United  Nations  invited  major  Afghan  factions,  most  prominently  the  Northern 
Alliance  and  that  of  the  former  king — but  not  the  Taliban — to  a  conference  in 
Bonn,  Germany.39 

On  December  5,  2001,  the  factions  signed  the  Bonn  Agreement.40  It  was  en- 
dorsed by  the  Security  Council  on  December  6,  200 1.41  Ironically,  the  Agreement 
was  reportedly  forged  with  substantial  Iranian  diplomatic  help  because  of  Iran's 
support  for  the  Northern  Alliance.  According  to  Katzman,  the  Agreement,  among 
other  things: 

•  formed  the  interim  administration  headed  by  Hamid  Karzai. 

•  authorized  an  international  peacekeeping  force  to  maintain  security  in 
Kabul  and  directed  Northern  Alliance  forces  to  withdraw  from  the  capital. 
(Security  Council  Resolution  1386  (December  20, 2001)  provided  formal  Security 
Council  authorization  for  the  international  peacekeeping  force.) 

•  referred  to  the  need  to  cooperate  with  the  international  community  on 
counter-narcotics,  crime  and  terrorism. 

•  applied  the  Afghan  Constitution  of  1964  until  a  permanent  constitution 
could  be  drafted.42 

Inside  the  United  Nations,  there  was  strong  sentiment  in  favor  of  democratic  re- 
forms. During  the  1990s,  successive  UN  resolutions  on  Afghanistan  called  for 

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Afghanistan:  Hard  Choices  and  the  Future  of  International  Law 

"broad-based,  representative  government  with  a  commitment  to  human  rights 
and,  increasingly,  women's  rights."43  This  sentiment,  which  was  strongly  sup- 
ported by  the  US  government,  is  reflected  in  the  Bonn  Agreement.  Yet  the  interna- 
tional commitment  to  democratization  was  potentially  a  liability,  as  well.  As  noted 
by  one  commentator: 

The  post-Taliban  democratization  process  was  from  the  outset  more  heavily 
internationalized  than  other  reforms  in  Afghan  history  except  under  the 
communists.  Reforms  during  the  monarchy  in  the  1 920s  were  certainly  influenced  by 
foreign  ideas,  but  apart  from  a  small  number  of  foreign  advisors  they  were  very  much 
an  Afghan  operation.  The  same  applied  to  Zahir  Shah's  democratic  reforms  in  1964. 
This  time,  by  contrast,  the  UN  launched  a  visibly  internationalized  democratization 
process.  Foreign  experts  virtually  flooded  into  the  country  to  help  implement  the 
transition  schedule  of  the  Bonn  Agreement.  The  visibility  of  the  foreign  hand  in  the 
reforms  was  exemplified  during  the  2005  elections,  when  the  UN  had  40  million 
ballot  papers  printed  in  Europe  and  Australia  and  flown  into  Afghanistan.  The 
foreign  role  was  accentuated  by  the  widespread  presence  of  international  consultants 
in  the  new  administration  as  a  whole.  While  many  experts  were  Afghans  returning 
from  exile,  often  temporarily,  they  worked  for  international  salaries.  This  hardened 
the  distinction  between  "the  locals"  (on  local  salary)  and  "the  internationalists"  (on 
international  salaries).44 

This  anti-foreigner  sentiment  continued  and  intensified  to  the  point  Afghans  soon 
referred  to  foreign  non-governmental  organizations  (NGOs)  as  "cows  that  drink  their 
own  milk."45  Perhaps  the  most  important  policy  impact  of  foreign  involvement  in  Af- 
ghanistan was  "the  extreme  dependence  of  the  emerging  Afghan  state  on  international 
assistance."46  The  size  of  the  US  economic  and  military  contribution  in  particular  gave 
it  paramount  influence.  By  2004,  US  aid  accounted  for  over  half  of  all  recorded  donor 
assistance  to  the  government  budget.  As  a  result  of  its  large  financial  contribution  and 
extensive  presence  in  Afghanistan,  the  United  States  "effectively  underwrote  the  very 
survival  of  the  government,  as  President  Hamid  Karzai  publicly  admitted,  and  wielded 
an  implicit  veto  over  all  issues  it  considered  important."47 

President  Karzai  exercised  decisive  influence  over  the  process  of  promulgating  a 
new  constitution.  In  accordance  with  established  tradition,  a  small  committee  of 
experts  prepared  a  first  draft,  which  was  reviewed  by  a  larger  commission.  The  final 
step  would  be  the  calling  of  a  loyajirga  to  deliberate  and  approve  a  text.  During  the 
early  drafting  process,  a  critical  issue  emerged  as  to  the  form  the  government 
should  take:  a  purely  presidential  system  or  a  mixed  structure  with  a  prime  minis- 
ter. The  debate  divided  along  ethnic  lines.  The  non-Pushtun  minorities,  including 
the  Tajik,  Uzbek,  Hazara,  Turkmen  and  Qizilbash,  strongly  favored  the  traditional 
position  of  a  prime  minister  as  a  way  to  counter  the  influence  of  a  Pashtun 


88 


John  F.  Murphy 


president.  They,  therefore,  wanted  a  power- sharing  mechanism  and  favored  a 
mixed  system  with  a  president  and  a  prime  minister,  the  latter  preferably  to  be 
elected  by  the  parliament.  The  Pashtuns  argued,  however,  that  Afghanistan  needed 
a  strong  executive  in  order  to  overcome  the  catastrophic  divisions  of  the  past  and 
to  provide  a  unifying  leadership  for  the  future.  Hence,  in  their  view,  a  purely  presi- 
dential system  was  best.  After  a  period  of  time,  the  drafting  process  was  removed 
from  the  commission  and  "proceeded  in  a  'secretive  and  unaccountable  manner' 
in  the  office  of  Karzai."48  When  the  document  was  made  public  a  couple  of  months 
later,  in  November  2003,  the  position  of  prime  minister  had  been  eliminated;  in- 
stead, two  vice  presidents  selected  by  the  president  had  been  added.49  Karzai's  suc- 
cess in  overcoming  a  "varied  and  collectively  powerful  opposition  during  the 
constitutional  process  derived  primarily  from  his  relationship  with  the  United 
States,"  but  "the  parliamentary  issue  left  a  deep  scar  among  the  minorities."50 

Speaking  of  parliament,  a  controversial  issue  arose  regarding  the  election  sys- 
tem to  be  employed  to  select  members  of  the  parliament  for  Afghanistan.  Although 
political  parties  were  allowed — about  sixty  were  registered  with  the  Ministry  of 
Justice — the  government  chose  a  system  that  prevented  political  parties  from  for- 
mally fielding  candidates.  The  election  system  chosen  is  called  the  single  non- 
transferable vote  (SNTV).  In  the  2005  elections  its  use  meant  that  voters  could 
choose  among  individual  candidates  in  multi-member  constituencies,  but  there 
were  no  party  lists  and  no  party  identification  of  candidates  on  the  ballot.  With  no 
formal  party  affiliations  allowed,  there  was  no  proportional  representation  accord- 
ing to  party  strength.  As  one  commentator  noted: 

As  an  institution  of  political  democracy,  the  SNTV  was  deeply  flawed.  Without 
electoral  recognition  of  political  parties,  the  parliament  was  likely  to  be  fragmented  and 
weak,  with  little  capacity  to  aggregate  local  interests,  address  national-level  issues, 
provide  clear  lines  of  accountability  to  the  voters  and  thus,  in  the  end,  check  the  power 
of  the  executive  branch.  .  .  .  The  limitations  of  a  non-party  election  system  were 
common  knowledge.  Most  of  the  diplomatic  community  in  Afghanistan,  the  UN 
mission  in  Kabul  (UNAMA),  and  virtually  all  resident  international  experts  and  civil 

society  groups  warned  against  adopting  the  SNTV Yet  Karzai  resisted,  and  after  a 

year-long  debate  pushed  the  SNTV  through  a  final  Cabinet  decision  in  February 
2005.51 

The  public  argument  made  in  favor  of  the  SNTV  by  Karzai  was  that  Afghanistan 
had  historically  had  many  bad  experiences  with  political  parties.  The  Communist 
Party  had  left  a  legacy  of  extreme  violence,  as  had  the  civil  war  among  the  political 
factions  during  the  early  1990s.  According  to  Karzai,  an  election  system  that 
strengthened  the  role  of  political  parties  would  likely  institutionalize  ethnic 


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Afghanistan:  Hard  Choices  and  the  Future  of  International  Law 

divisions  and  work  against  national  reconciliation  and  unity.  Therefore,  it  was 
preferable  to  have  an  election  system  where  voters  would  vote  for  individuals 
rather  than  parties.  Karzai's  ability  to  have  the  SNTV  adopted  was  reportedly  de- 
pendent upon  strong  US  support,  including  a  brusque  intervention  by  American 
Ambassador  Zalmay  Khalilzad  at  a  meeting  with  UN  officials  and  diplomats  in 
Kabul,  who  declared  that  "he  had  just  spoken  to  President  Bush,  who  said  'SNTV  is 
the  choice.  SNTV  is  going  to  happen.'"52  Arguably,  "[t]he  institutional  arrange- 
ment suited  Washington's  primary  policy  objective  in  Afghanistan,  which  was  not 
to  promote  political  democracy  but  to  eliminate  terrorists  and  Al  Qaida."53 

In  any  event,  the  process  resulted  in  the  election  of  a  substantial  number  of  al- 
leged war  criminals  and  drug  traffickers  in  the  parliament,  which  undermined  the 
legitimacy  of  the  democratic  system.  Moreover,  as  previously  noted,  the  national 
budget  was  heavily  dependent  upon  foreign  funding.  In  2005,  around  90  percent  of 
the  total  budget  was  based  on  foreign  receipts.  "Only  the  operating  budget,  which 
represented  about  one-fourth  of  the  total,  was  managed  by  the  government.  The 
rest  was  the  development,  or  'external'  budget,  which  the  donors  controlled  more 
directly.  As  a  result,  the  power  of  the  parliament  was  extremely  limited  with  regard 
to  both  taxation  and  spending."54 

Not  surprisingly,  relations  between  Karzai  and  parliament  have  often  been  con- 
tentious. Nonetheless,  they  are  both  trying  to  improve  and  expand  governance 
throughout  the  country.  In  testimony  before  the  Senate  Armed  Services  Commit- 
tee on  February  28, 2008,  Director  of  National  Intelligence  Mike  McConnell  stated 
that  the  Karzai  government  controls  only  30  percent  of  the  country,  while  the 
Taliban  controls  10  percent,  and  tribes  and  local  groups  control  the  remainder.55 
US  and  NATO  officials  in  Kabul,  however,  told  CBS  in  March  2008  that  they  dis- 
agreed with  this  assessment  because  it  is  too  pessimistic.56  There  is  a  debate  in  Af- 
ghanistan over  whether  the  focus  should  continue  to  be  on  strengthening  the 
central  government — the  approach  favored  by  the  Karzai  government  and  the 
United  States  and  most  of  its  partners — or  to  promote  local  solutions  to  security 
and  governance  problems,  an  approach  some  international  partners,  such  as  Great 
Britain,  would  like  to  explore. 

Despite  its  relatively  weak  position,  parliament  has  asserted  itself  on  several  oc- 
casions. For  example,  it  exercised  its  prerogatives  in  the  process  of  confirming  a 
postelection  cabinet  and  in  forcing  Karzai  to  remove  several  prominent  conserva- 
tives from  the  Supreme  Court  and  replacing  them  with  jurists  more  experienced  in 
modern  jurisprudence.57  In  mid-2007,  parliament  promulgated  a  law  granting 
amnesty  to  commanders  who  fought  in  the  various  Afghan  wars  since  the  Soviet 
invasion  in  an  effort  to  improve  the  chances  for  greater  stability  as  Afghanistan  at- 
tempts to  rebuild  itself  as  a  modern  nation.  In  the  course  of  debate  on  the 

90 


John  F.  Murphy 


legislation,  the  law  was  rewritten  to  give  victims  the  right  to  bring  accusations  of 
past  abuses  forward.  Its  status,  however,  is  unclear  because,  although  Karzai  did 
not  veto  the  legislation,  neither  did  he  sign  it. 

In  spite  of  the  tensions  between  them,  the  executive  and  the  parliament  have  co- 
operated with  respect  to  less  contentious  issues,  such  as  the  adoption  of  a  labor  law, 
a  mines  law,  a  law  on  economic  cooperatives  and  a  convention  on  tobacco  control. 
The  legislature  also  confirmed  Karzai  nominees  for  a  new  Minister  of  Refugee  Af- 
fairs, the  head  of  the  Central  Bank  and  the  final  justice  to  complete  the  composi- 
tion of  the  Supreme  Court.58 

The  United  Nations  has  been  extensively  involved  in  the  post-war  stabilization 
and  reconstruction  effort  in  Afghanistan.  Some  of  the  debate  over  the  predomi- 
nant role  of  the  United  States  and  its  partners  was  reflected  in  a  proposal  to  create  a 
new  position  of  "super  envoy"  that  would  represent  the  United  Nations,  the  Euro- 
pean Union  and  NATO  in  Afghanistan.  The  proposal  would  subsume  the  role  of 
the  head  of  the  UN  Assistance  Mission  in  Afghanistan  (UNAMA).  In  January  2008, 
with  US  support,  UN  Secretary- General  Ban  Ki-moon  tentatively  appointed  Brit- 
ish diplomat  Paddy  Ashdown  to  this  "super  envoy"  position,  but  Karzai  rejected 
the  appointment,  reportedly  over  concerns  about  the  scope  of  the  authority  of  Mr. 
Ashdown,  especially  whether  it  might  dilute  the  US  role  in  Afghanistan.  There  has 
also  been  speculation  that  Karzai  wished  to  show  his  independence  from  the  inter- 
national community.  Ashdown  withdrew  his  name  on  January  28,  2008. 59 

On  March  20,  2008,  the  Security  Council  adopted  Resolution  1608,60  which  ex- 
tended UNAMA's  mandate  for  another  year  and  expanded  its  authority  to  include 
some  of  the  "super  envoy"  concept.  UNAMA  coordinates  the  joint  Afghan- 
international  community  coordination  body  called  the  Joint  Coordination  and 
Monitoring  Board,  and  Resolution  1806  directs  UNAMA  to  coordinate  the  work 
of  international  donors  and  strengthen  cooperation  between  the  international 
peacekeeping  force  (ISAF,  International  Security  Assistance  Force;  see  below)  and 
the  Afghan  government.  The  head  of  UNAMA,  as  of  March  2008,  is  Norwegian 
diplomat  Kai  Eide.  In  April  2008,  in  Washington,  D.C.,  Eide  stated  that  additional 
capacity  building  resources  are  needed  and  that  some  efforts  by  international  do- 
nors are  redundant  or  tied  to  purchases  by  Western  countries.61 

There  is  little  doubt  that  inadequate  resources,  both  for  security  and  reconstruc- 
tion purposes,  have  been  and  remain  a  primary  problem  in  Afghanistan.  The  prob- 
lem, moreover,  is  lack  of  both  financial  resources  and  human  capital  in  a  country 
that  is  one  of  the  poorest  on  earth,  with  a  literacy  rate  estimated  at  only  30  percent. 
The  recent  deterioration  in  the  security  situation  is  especially  disquieting. 


91 


Afghanistan:  Hard  Choices  and  the  Future  of  International  Law 

Post-War  Security  Operations  and  Force  Capacity  Building 

As  noted  previously,  after  the  negotiation  of  the  Bonn  Agreement,  the  UN  Security 
Council  adopted  Resolution  1386  on  December  20,  2001,  which  established  ISAF 
to  aid  the  Afghan  Interim  Authority  in  maintaining  peace  and  security  in  Kabul 
and  its  surrounding  areas,  "so  that  the  Afghan  Interim  Authority  as  well  as  the  per- 
sonnel of  the  United  Nations  can  operate  in  a  secure  environment."62  To  this  end, 
the  Resolution  authorized  ISAF  to  take  "all  necessary  measures"  to  fulfill  the  peace- 
keeping mission.63  Everyone  recognized  that  "all  necessary  measures"  might  in- 
clude the  use  of  force.  The  Resolution  also  called  upon  member  States  "to 
contribute  personnel,  equipment  and  other  resources  to  the  [ISAF],"64  and  "calls 
on  Member  States  participating  in  the  [ISAF]  to  provide  assistance  to  help  the 
Afghan  Interim  Authority  in  the  establishment  and  training  of  new  Afghan  secu- 
rity and  armed  forces."65 

It  is  important  to  note  that  Resolution  1386  envisaged  that  ISAF  would  be  a 
peacekeeping  force  in  the  classic  sense.  Although  ISAF  was  authorized  to  take  "nec- 
essary measures"  to  fulfill  its  mandate,  which  implied  that  force  might  have  to  be 
used,  the  initial  limitation  of  its  operations  to  Kabul  and  its  surrounding  areas  in- 
dicated that  the  use  of  force  contemplated  would  be  in  the  nature  of  actions  in  self- 
defense,  a  use  of  force  characteristic  of  peacekeeping  operations.  There  is  no  lan- 
guage in  the  Resolution  that  implies  the  use  of  force  to  enforce  peace.  Rather,  peace 
enforcement  responsibility  lay  with  separate  US  forces  who  sought  to  track  down 
Taliban  and  al  Qaeda  remnants,  which  were  largely  located  in  the  southern  and 
eastern  portions  of  the  country  near  the  border  with  Pakistan. 

The  composition  of  ISAF  originally  consisted  of  approximately  forty-six  hun- 
dred troops  from  122  different  States.66  The  leadership  of  ISAF  initially  rotated 
among  the  Western  nations,  but  NATO  took  over  leadership  of  ISAF  in  August 
2003.  This  was  NATO's  first  and  so  far  only  mission  outside  the  Euro- Atlantic  area 
in  its  history.  At  the  time  ISAF's  primary  goals  were  "to  assist  in  maintaining  secu- 
rity, develop  Afghan  national  security  structures,  assist  the  nation's  reconstruction, 
and  aid  the  training  of  Afghan  security  forces."67 

Although  Resolution  1386  initially  limited  ISAF  to  Kabul,  its  area  of  responsi- 
bility had  been  expanded  to  include  about  50  percent  of  the  country  before  August 
2006,  when  it  further  extended  its  role  to  take  over  the  lead  military  role  from  US 
troops  in  southern  Afghanistan.  In  other  words,  ISAF  had  evolved  from  a  peace- 
keeping force  to  one  clearly  involved  in  enforcing  the  peace  against  rejuvenated 
Taliban  and  al  Qaeda  forces.  As  one  European  official  in  NATO  reportedly  stated, 
"When  NATO  agreed  to  expand  its  control  to  southern  Afghanistan  in  2006,  no 


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John  R  Murphy 


one  really  anticipated  the  difficulty  in  the  fighting.  Maybe  we  were  in  denial,  but 
this  has  been  a  culture  shock  for  a  lot  of  us."68 

For  their  part,  US  officials  have  been  frustrated  by  what  they  perceive  as  a  failure 
on  the  part  of  some  NATO  members  to  bear  their  fair  share  of  the  fighting.  For  ex- 
ample, the  United  States  has  been  asking  its  NATO  allies  to  provide  more  troops  to 
stabilize  the  military  situation  in  Afghanistan  but  has  discovered  that  "some  allies 
appear  more  eager  to  reduce  their  forces  than  to  add  to  them."69  US  Secretary  of 
Defense  Robert  Gates  has  credited  the  Netherlands,  Britain,  Australia  and  Canada 
with  "doing  their  part  in  Afghanistan,"  but  indicated  that  other  NATO  members 
have  contributed  far  less.70  For  its  part,  Canada  threatened  to  withdraw  from  the 
southern  province  of  Kandahar  early  next  year  (2009)  unless  other  NATO  coun- 
tries agreed  to  send  one  thousand  additional  combat  troops  there,  a  threat  that  was 
met  when  France  agreed  to  contribute  the  extra  troops.71  Tensions  within  the  alli- 
ance have  also  risen  because  of  the  unwillingness  of  some  members,  including  Ger- 
many, Italy  and  Spain,  to  send  troops  to  the  south  of  Afghanistan,  where  the  bulk  of 
the  fighting  is  taking  place.72 

Secretary  Gates  has  recently  emphasized  "the  direct  threat  posed  to  European 
security  by  extremists  in  and  around  Afghanistan"  in  a  speech  reflecting  growing 
American  concerns  that  weak  public  support  risked  undermining  NATO's  mission 
in  the  country.73  As  evidence  of  increased  danger  to  Europe  from  terrorist  attacks, 
Gates  cited,  among  other  things,  the  arrest  of  fourteen  extremists  in  Barcelona,  sus- 
pected of  planning  attacks  against  public  transport  systems  in  Spain,  Portugal, 
France,  Germany  and  Britain.  On  the  reluctance  of  European  States  to  commit 
more  troops  to  Afghanistan,  or  to  allow  those  already  there  to  move  to  the  south 
and  other  areas  where  the  fighting  was  most  intense,  Gates  warned  against  the  alli- 
ance becoming  a  two-tiered  coalition,  of  those  willing  to  fight  and  those  who  were 
not.  He  reportedly  added  that  "[s]uch  a  development,  with  all  its  implications  for 
collective  security,  would  effectively  destroy  the  alliance."74 

The  same  European  official  who  reported  that  NATO  members  suffered  "cul- 
ture shock"  when  they  realized  how  difficult  fighting  in  southern  Afghanistan 
would  be,  reportedly  recognized  the  continuing  frustration  of  American  officials 
when  he  said,  "American  officials  were  frustrated  when  the  alliance  had  35,000 
troops  in  Afghanistan  but  only  8,000  troops  in  the  volatile  south,  and  they  are  still 
unsatisfied  with  NATO's  52,000  troops  in  Afghanistan  and  22,000  in  the  south."75 

Both  Barack  Obama  and  John  McCain,  the  contenders  in  the  2008  presidential 
elections,  supported  a  troop  "surge"  in  Afghanistan.  Senator  McCain  proposed 
moving  troops  from  Iraq  to  Afghanistan,  conditional  on  continued  progress  in 
Iraq.  Senator  Obama's  proposal  is  much  more  radical;  he  argues  that  we  should 
have  sent  the  2007  surge  to  Afghanistan,  not  Iraq,  that  Afghanistan  is  the  "central 

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Afghanistan:  Hard  Choices  and  the  Future  of  International  Law 

front"  and  that  we  must  rebuild  Afghanistan  "from  the  bottom  up  along  the  lines 
of  the  Marshall  Plan."76  Secretary  of  Defense  Gates  has  also  supported  the  idea  of  a 
surge  in  Afghanistan.  He  has  endorsed  a  $20  billion  plan  to  increase  substantially 
the  size  of  Afghanistan's  army,  as  well  as  the  role  and  numbers  of  Western  troops 
there  to  aid  it. 

Serious  questions  have  been  raised,  however,  about  the  validity  of  this  thesis. 
For  example,  although  denying  sanctuary  for  terrorists — in  Afghanistan  and  else- 
where— has  been  put  forth  as  a  rationale  for  increased  troop  strength,  it  has  been 
argued  that  "[accomplishing  it . . .  requires  neither  the  conquest  of  large  swathes 
of  Afghan  territory  nor  a  troop  surge  there — nor  even  maintaining  the  number  of 
troops  NATO  has  in  Afghanistan  today.  Counterterrorism  is  not  about  occupa- 
tion. It  centers  on  combining  intelligence  with  specialized  military  capabilities."77 
Even  if  one  maintains  that  counterterrorism  in  Afghanistan  requires  more  troops 
than  suggested  by  the  above  argument,  the  question  remains,  how  many?  Dan 
McNeill,  the  American  general  who  was  NATO's  top  commander  in  Afghanistan 
until  he  left  in  June  2008,  reportedly  said  that  "according  to  current  American 
counterinsurgency  doctrine,  a  successful  occupation  of  Afghanistan,  which  is 
larger,  more  complex,  more  populous  and  very  much  less  governable  than  Iraq, 
would  require  400,000  troops."78 

Strictly  speaking,  NATO  is  not  an  occupying  force  in  Afghanistan  because  ISAF 
was  established  by  Security  Council  resolution  and  President  Karzai  has  given  his 
permission  for  its  presence.  As  noted  previously,  however,  the  large  number  of  for- 
eigners in  Afghanistan  has  raised  objections  from  the  Afghans,  who  have  a  long- 
standing distrust  of  foreigners.  Tensions  have  been  greatly  exacerbated  by  civilian 
casualties  caused  by  NATO  bombing.  Karzai  has  demanded  an  end  to  civilian  casu- 
alties. A  surge  of  foreign  troops  along  the  lines  suggested  could  greatly  intensify 
these  objections  and  likely  provoke  a  serious  backlash. 

One  possible  answer  to  this  objection  might  be  to  concentrate  greater  attention 
and  resources  on  training  an  Afghan  army  and  police.  This  has  proven  to  be  a  diffi- 
cult goal  to  achieve.  American  commanders  remain  frustrated  by  NATO's  failure 
to  deploy  the  promised  number  of  Operational  Mentor  and  Liaison  Teams 
(OMLTs)  ("Omelets"  in  NATO-speak).  These  are  twelve-  to  nineteen-person 
training  teams  that  serve  as  a  vital  link  between  forward-deployed  Afghan  army 
and  police  units  and  ISAF  support  such  as  airpower,  medical  evacuations  and  re- 
supply.  This  is  a  dangerous  mission,  as  was  demonstrated  in  June  2008,  when  eigh- 
teen police  trainers  from  the  Security  Transition  Command  were  killed  in  action.  It 
was  the  worst  month  of  the  conflict  for  that  command.79 

As  a  consequence,  some  NATO  States,  in  particular  Germany,  now  refuse  to  al- 
low their  OMLTs  to  accompany  Afghan  units  into  combat  in  the  southern  and 

94 


John  F.  Murphy 


eastern  parts  of  the  country.  Others  have  failed  to  field  the  training  teams  at  all,  ap- 
parently because  of  the  financial  cost.  The  result  is  a  shortage  of  twenty  mentoring 
teams  and  twenty-three  thousand  trainers.80  General  John  Craddock,  NATO's  su- 
preme allied  commander  in  Afghanistan,  has  expressed  his  frustration  at  this  situa- 
tion in  vivid  terms: 

I've  talked  at  every  meeting  of  the  North  Atlantic  Council  [NATO's  governing  body], 
and  at  every  foreign  ministers  council.  At  one  [meeting]  I  brought  a  big  cup  and  labeled 
it  "Contributions,"  and  I  reminded  all  the  defense  chiefs  that  their  respective  heads  of 
state  agreed  to  meet  this  requirement,  so  where  is  your  bid?  And  I  didn't  get  anything! 
So  yeah,  I'm  frustrated.81 

Building  a  quality  police  force  in  Afghanistan  has  so  far  proven  to  be  a  mission 
impossible  because  of  pervasive  corruption.  The  current  seventy-nine  thousand 
members  of  Afghanistan's  national  police  force  are  "better  known  as  shakedown 
artists  than  law  enforcers."82  Major  General  Robert  Cone,  who  is  in  charge  of  the 
mission  to  train  the  Afghan  army  and  national  police,  points  out:  "The  problem  is 
endemic  corruption  in  a  country  that  had  virtually  no  economy  for  30  years  other 
than  narco-trafficking,  so  the  way  cops  made  money  was  to  stop  vehicles  at  check- 
points and  demand  money."83  Many  of  Afghanistan's  governors  are  former  war- 
lords who  put  their  cronies  on  the  police  rolls.  As  a  result,  they  also  are  lukewarm  to 
police  reforms.  According  to  Cone,  "[i]f  you  gave  them  truth  serum  and  asked  if 
they  wanted  a  good,  non-corrupt  police  force,  probably  only  30  percent  or  so 
would  say  yes.  For  years,  corrupt  police  is  how  they've  made  money."84 

Military  action  against  the  Taliban  and  al  Qaeda  has  not  been  going  well  the  last 
two  years.  The  toll  among  foreign  troops  in  Afghanistan  has  reached  a  new  high, 
with  more  than  230  deaths  so  far  in  2008  among  more  than  twenty  NATO  nations 
contributing  troops.  American  commanders  have  said  that  the  level  of  violence  is 
up  30  percent  in  the  past  year.  In  July  2008,  for  the  first  time,  American  military  ca- 
sualties in  Afghanistan  exceeded  those  in  Iraq.85  A  major  reason  for  the  increase  of 
casualties  in  Afghanistan  has  been  the  ability  of  the  Taliban  and  al  Qaeda  to  cross 
the  border  between  Pakistan  and  Afghanistan,  launch  an  attack  in  Afghanistan  and 
return  to  their  safe  haven  in  the  tribal  areas  of  Pakistan.  After  months  of  US  criti- 
cism, behind  the  scenes  and  in  public,  against  Pakistan  for  not  doing  enough  to 
prevent  such  attacks,  the  United  States  launched  drone  strikes  against  targets  in  Pa- 
kistan and  a  raid  by  special  operations  forces  in  Pakistan's  tribal  areas.  Pakistan  re- 
acted forcefully  to  these  attacks  and  the  risk  grew  of  an  armed  confrontation 
between  Pakistani  and  US  forces.  But  as  the  Taliban  went  deeper  into  Pakistan 
proper  and  carried  out  major  terrorist  attacks  like  the  Marriot  Hotel  bombing  in 


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Afghanistan:  Hard  Choices  and  the  Future  of  International  Law 

Islamabad  on  September  20,  2008,  Pakistan  reacted  and  escalated  its  attacks  on 
Taliban  strongholds  like  Swat,  a  settled  area  of  the  North- West  Frontier  Province 
that  was  once  a  middle  class  resort.86  Fighting  has  been  fierce,  and  success  of  the  Pa- 
kistani effort  is  by  no  means  assured. 

For  his  part,  President  Karzai  has  repeatedly  sought  the  intervention  of  the 
Saudi  royal  family  to  bring  the  Taliban  to  peace  negotiations,  but  without  success. 
Karzai  has  reportedly  imposed  conditions  on  bringing  the  Taliban  into  the  gov- 
ernment. These  include  a  renunciation  of  violence,  acceptance  of  Afghanistan's 
democratic  constitution  and  a  repudiation  of  al  Qaeda — all  terms  the  Taliban 
leadership  has  rejected.87 

As  noted  earlier,  there  are  recent  claims  that  Afghanistan  has  become  a  "narco- 
State"  and  that  Hamid  Karzai  and  his  government  are  deeply  involved  in  protect- 
ing the  opium  trade  and  using  proceeds  from  it  to  maintain  themselves  in  power.88 
At  this  writing,  there  are  further  reports  that  President  Karzai's  brother,  Ahmed 
Wali  Karzai,  is  heavily  involved  in  the  heroin  trade  in  Afghanistan  and  that  Presi- 
dent Karzai's  government  is  protecting  him.  American  officials  in  Kabul  report- 
edly "fear  that  perceptions  that  the  Afghan  president  might  be  protecting  his 
brother  are  damaging  his  credibility  and  undermining  efforts  by  the  United  States 
to  buttress  his  government,  which  has  been  under  siege  from  rivals  and  a  Taliban 
insurgency  fueled  by  drug  money."89 

I  will  now  turn  to  a  consideration  of  the  international  law  issues  raised  by  the 
current  situations  in  Afghanistan  and  Pakistan,  the  hard  choices  faced  by  decision 
makers  attempting  to  resolve  these  issues,  and  possible  impacts  on  the  future  of  in- 
ternational law  of  these  choices. 

Afghanistan,  Pakistan,  Hard  Choices  and  the  Future  of  International  Law 

A  major  problem  that  decision  makers  face  in  dealing  with  the  currently  unsatis- 
factory situations  in  Afghanistan  and  Pakistan  is  that  both  nations  are  sovereign 
States  with  governments  selected  in  free  elections.  Although  the  United  States  and 
other  foreign  governments  involved  in  Afghanistan  can  urge  that  President  Karzai 
stop  protecting  drug  lords  and  narco-farmers,  they  cannot  order  him  to  do  so. 
Much  less  can  they  decide  to  remove  him  and  his  government  from  power.  To  be 
sure,  they  could,  as  suggested  by  Thomas  Schweich,  a  former  senior  US  Depart- 
ment of  State  counter-narcotics  official,  "inform  President  Karzai  that  he  must 
stop  protecting  drug  lords  or  he  will  lose  US  support."90  The  wisdom  of  this  recom- 
mendation, however,  is  highly  questionable.  It  would  seem  to  call  for  a  "nuclear 
option"  in  a  situation  not  calling  for  it.  As  one  commentator  has  noted: 


96 


John  F.  Murphy 


Neither  [presidential]  candidate  has  mentioned  heroin  use  as  a  pressing  domestic 
issue,  and  there  is  even  less  reason  it  should  be  a  major  international  one.  In  any  case, 
our  demand  for  heroin  is  not  the  fault  of  the  Afghan  peasants  who  would  take  the 
financial  hit  for  our  interdiction  efforts.  Liberal  democracies  cannot  win 
counterinsurgencies  against  the  wills  of  local  populations,  and  denying  a  livelihood  to 
the  poor  farmers  of  southern  and  eastern  Afghanistan  is  no  way  to  persuade  Afghans  to 
our  side.91 

Tensions  between  the  Karzai  government  and  the  US  government  over  civilian 
casualties  allegedly  caused  by  airstrikes  raise  somewhat  similar  problems.  Al- 
though the  law  of  armed  conflict  clearly  prohibits  an  intentional  direct  attack 
against  the  civilian  population  as  such,  and  indeed  categorizes  it  as  a  war  crime,92 
"there  can  be  no  assurance  that  attacks  against  combatants  and  other  military  ob- 
jectives will  not  result  in  civilian  casualties  in  or  near  such  military  objectives."93  In 
the  latter  case,  the  civilian  casualties  are  known  as  "collateral  damage"  and  do  not 
give  rise  to  accountability  of  the  attacker.  Nonetheless,  as  the  head  of  the  sovereign 
government  of  Afghanistan,  President  Karzai  can  order  the  complete  cessation  of 
airstrikes  (he  has  done  so  on  occasion),  and,  as  a  matter  of  international  law,  the 
United  States  and  its  allies  are  bound  to  comply — even  though  such  airstrikes  are  a 
crucially  important  factor  in  the  battle  against  the  Taliban,  and  the  Taliban  regu- 
larly intermingles  among  the  civilian  population  in  order  to  use  them  as  human 
shields  (itself  a  violation  of  the  law  of  armed  conflict)  and  then  uses  civilian  casual- 
ties as  part  of  its  war  propaganda  effort.94  In  short,  the  Taliban  has  been  success- 
fully engaging  in  so-called  "lawfare,"  using  false  accusations  of  violations  of  thejws 
in  bello  in  order  to  win  public  opinion  to  its  side. 

In  a  recent  interview,  Admiral  Michael  Mullen,  Chairman  of  the  US  Joint  Chiefs 
of  Staff  and  the  nation's  highest- ranking  military  officer,  has  identified  the  prob- 
lem of  how  to  deal  with  attacks  by  the  Taliban  and  al  Qaeda  across  the  border  be- 
tween Pakistan  and  Afghanistan,  and  their  use  of  the  tribal  areas  of  Pakistan  as  a 
safe  haven,  as  the  gravest  he  faces.95  Although  he  suggests  that  more  military  forces 
are  needed,  he  states,  "It's  not  just  about  [sending]  additional  combat  forces  to  Af- 
ghanistan." Rather,  he  notes,  "Afghanistan  has  a  weak  government  and  economy,  a 
huge  opium  trade,  and  an  inadequate  army.  If  those  problems  aren't  addressed, 
more  troops  won't  help." 

There  is  a  serious  question,  however,  whether  these  problems  are  surmount- 
able. As  raised  starkly  by  one  commentator: 

But  what  are  the  real  prospects  for  turning  fractious,  impoverished  Afghanistan  into  an 
orderly  and  prosperous  nation  and  a  potential  ally  of  the  United  States?  What  true 
American  interests  are  being  insufficiently  advanced  or  defended  in  its  remote  deserts 


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Afghanistan:  Hard  Choices  and  the  Future  of  International  Law 

and  mountains?  And  even  if  these  interests  are  really  so  broad,  are  they  deliverable  at  an 
acceptable  price?  The  answers  to  these  questions  put  the  wisdom  of  an  Afghan  surge 

into  great  question The  invasion  of  Afghanistan  was  a  great  tactical  success  and  the 

correct  strategic  move.  Yet  since  then  it  seems  as  if  the  United  States  has  been  trying  to 
turn  the  conflict  into  the  Vietnam  War  of  the  early  21st  century.  Escalating  in 
Afghanistan  to  "must-win"  status  means,  according  to  General  McNeil's  estimate, 
deploying  three  times  as  many  troops  as  were  sent  to  Iraq  at  the  height  of  the  surge.  If 
Americans  really  believe — as  Senator  Obama  in  particular  argues — that  Afghanistan  is 
the  right  war  and  a  place  appropriate  for  Iraq-style  nation-building,  then  they  must 
understand  both  the  cost  involved  and  the  remote  likelihood  of  success.96 

At  this  writing,  Britain  has  reportedly  backed  a  statement  by  a  senior  military 
commander  that  the  war  against  the  Taliban  cannot  be  won.97  According  to  the  re- 
port, "the  UK's  ministry  of  defense  'did  not  have  a  problem'  with  warning  the  UK 
public  not  to  expect  a  'decisive  military  victory'  and  to  prepare  instead  for  a  possi- 
ble deal  with  the  Taliban."98  For  its  part,  however,  the  United  States  is  skeptical 
about  any  idea  of  negotiating  with  the  Taliban.  When  asked  about  the  British  com- 
mander's statement,  a  White  House  spokesman  reportedly  said:  "We  plan  on  win- 
ning in  Afghanistan.  It's  going  to  be  tough  and  going  to  take  some  time,  but  we  will 
eventually  succeed."99 

Even  if  there  should  be  an  eventual  agreement  that  success  in  Afghanistan  does 
not  require  a  complete  military  victory,  US  Joint  Chiefs  Chairman  Michael 
Mullen  is  surely  right  in  suggesting  that  the  problem  along  the  Afghan-Pakistani 
border  is  the  one  to  be  most  concerned  about  for  the  near  future  and  will  be  "front 
and  center  on  the  agenda  of  the  next  president."100  As  noted  earlier,  US  and  coali- 
tion forces  have  been  frustrated  by  Pakistan's  failure  to  prevent  Taliban  and  al 
Qaeda  forces  from  crossing  the  border  to  launch  attacks  in  Afghanistan  and  have 
recently  attacked  targets  in  the  tribal  areas  of  Pakistan  either  by  drones  or  by  spe- 
cial operations  forces.  Pakistan  has  protested  vociferously  and  threatened  military 
action  against  coalition  forces.  Most  recently,  however,  Pakistan  has  reacted  to 
Taliban  and  al  Qaeda  attacks  in  Pakistan  by  intensifying  military  action  against 
them  in  Pakistan.101 

A  major  issue  arising  out  of  this  situation  is  whether  US  and  coalition  forces  vi- 
olated international  law  restraints  on  the  use  of  force  by  launching  their  attacks  in 
Pakistani  territory.  The  answer  to  this  question  has  to  be  a  resounding  "maybe." 
As  noted  previously,  with  respect  to  the  9/11  attacks  and  the  issue  of  whether  Arti- 
cle 51  of  the  UN  Charter  applies  to  armed  attacks  by  non-State  actors,  Yoram 
Dinstein  has  concluded  that  "all  lingering  doubts  on  this  issue  have  been  dispelled 
as  a  result  of  the  response  of  the  international  community  to  the  shocking  events" 
of  September  ll.102  It  is  unclear,  however,  whether  this  conclusion  would  apply  to 


98 


John  F.  Murphy 


cross-border  attacks  by  "terrorists" — or  less  pejoratively,  "irregular  forces"  of  a 
non-State  character — that  do  not  have  the  extraordinary  features  of  the  9/11  attacks 
and  the  global  response  to  them.  Dinstein  himself  notes  that  there  is  considerable 
scholarly  comment  in  support  of  the  proposition  that  there  is  no  right  of  self- 
defense  under  Article  51  against  an  armed  attack  by  a  non-State  actor.  This  proposi- 
tion is  also  supported  by  the  controversial  statement  in  the  2004  International  Court 
of  Justice's  Advisory  Opinion  on  Legal  Consequences  of  the  Construction  of  a  Wall  in 
the  Occupied  Palestinian  Territory.103  There  the  court  summarily  dismissed  Israel's 
claim  that  it  was  acting  in  self-defense  against  attacks  by  terrorist  groups.  In  its  view, 
Israel  could  not  be  acting  in  self-defense  because  Israel  had  not  claimed  that  the  ter- 
rorist attacks  at  issue  were  imputable  to  a  foreign  State  and  because  those  attacks 
were  not  transnational  in  nature,  having  occurred  wholly  within  territory  occupied 
by  Israel.  The  opinion  has  been  heavily  criticized,104  however,  and  the  court  argu- 
ably backed  off  its  view  in  its  2005  case  concerning  Armed  Activities  on  the  Territory 
of  the  Congo,  where  the  court  stated  that,  given  the  circumstances  of  the  case,  there 
was  "no  need  to  respond  to  the  contentions  of  the  Parties  as  to  whether  and  under 
what  conditions  contemporary  international  law  provides  for  a  right  of  self-defense 
against  large  scale  attacks  by  irregular  forces."105 

Assuming  arguendo  that  there  is  a  right  of  self-defense  against  armed  attacks  by 
non-State  actors,  there  is  still  the  requirement  that  the  use  of  force  in  self-defense 
be  necessary  for  the  object  of  defense  and  proportional  to  the  injury  threatened.106 
Although  the  drone  attacks  and  special  operations  forces  attack  drew  strong  pro- 
tests from  the  Pakistani  government,  they  were  arguably  necessary  in  light  of  Paki- 
stan's failure  to  prevent  cross-border  attacks  and  proportional  to  the  injury  they 
threatened.  As  noted  by  Admiral  Mullen,  there  is  no  plan  to  invade  Pakistan,107  and 
there  is  evidence  of  a  favorable  shift  in  the  Pakistani  military's  outlook  after  hor- 
rendous terrorist  attacks  on  targets  in  its  own  country.  He  is  also  encouraged  that  a 
tribal  leader  in  Bajaur,  a  Taliban  and  al  Qaeda  stronghold  along  the  border,  has 
mobilized  several  anti-Taliban  fighters.  At  the  same  time  he  recognizes  that  the  Pa- 
kistani military  does  not  yet  have  the  skills  or  the  equipment  it  needs.  If  these  can 
be  provided,  there  is  hope  that  no  further  cross-border  attacks  by  US  and  coalition 
forces  will  be  necessary. 

Even  a  cursory  review  of  the  foregoing  discussion  leads  to  the  unhappy  conclu- 
sion that  efforts  toward  "nation  building"  in  Afghanistan  are  going  very  badly,  and 
hard  choices  will  have  to  be  made  that  will  have  a  major  impact  on  the  future  of  in- 
ternational law  and  international  institutions.  The  first  choice  will  have  to  be 
whether  having  a  "surge"  in  Afghanistan  of  approximately  ten  thousand  troops  is  a 
good  idea  and  will  contribute  to  winning  the  war  against  the  Taliban  and  al  Qaeda. 
Since  both  candidates  in  the  US  presidential  election  favor  a  surge,  it  is  highly 

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Afghanistan:  Hard  Choices  and  the  Future  of  International  Law 

probable  that  such  a  surge  will  take  place.  As  noted,  however,  the  British  govern- 
ment believes  the  war  is  unwinnable  in  the  sense  of  a  decisive  military  victory  and 
favors  instead  President  Karzai's  efforts  to  broker  a  peace  settlement  with  the 
Taliban — efforts  apparently  opposed  by  the  US  government.  Some  critics  have 
gone  much  further  and  proposed  a  major  drawdown  of  Western  troops  to  a  maxi- 
mum of  perhaps  twenty  thousand.  In  their  view,  this  number  would  be  sufficient, 
if  coupled  with  an  intelligence  operation  sufficient  to  collect  the  intelligence 
needed  to  allow  special  operations  forces  to  eliminate  terrorist  threats  as  they 
appear.108 

It  will  also  be  necessary  to  decide  whether,  in  light  of  considerable  evidence  of 
pervasive  corruption  in  the  Karzai  government,  and  considering  the  cost  in  lives 
and  treasure  already  expended,  the  efforts  toward  nation  building  should  be  con- 
tinued. On  the  topic  of  nation  building  in  Afghanistan,  James  Kitfield  of  the  Na- 
tional Journal  had  the  following  to  say: 

The  overwhelming  theme  of  the  Afghan  nation-building  at  this  time  is  a  lack  of 
coordination  and  coherence.  Everyone  seems  to  be  doing  their  own  thing  based  on 
different  and  occasionally  conflicting  or  at  least  clashing  agendas.  The  critical  issue  of 
who  should  be  dealing  directly  with  Taliban  leaders  in  proposing  reconciliation,  and 
what  they  can  offer  them  to  jump  to  the  government's  side,  is  a  case  in  point.  The  US 
pushed  hard  for  the  naming  of  a  very  high  profile  rep  in  Paddy  Ashdown,  precisely  to 
instill  more  coherence  in  the  effort.  President  Karzai  apparently  viewed  that  as  a 
reproach  and  Ashdown  as  a  potential  competitor  for  influence,  so  he  nixed  the  idea  of  a 
high  profile  UN  "czar."  The  hopes  for  Ashdown's  successor  are  more  modest,  but 
everyone  seems  to  think  someone  is  still  needed  who  can  be  a  one-stop  contact  for  civil, 
international  aid  operations.  The  US  military  commanders  in  Afghanistan,  and  their 
NATO  counterparts,  are  very  anxious  that  someone  fill  such  a  role  so  that  they  can  get 
the  critical  sequencing  right  in  their  "clear,  hold,  build"  operations.109 

Hard  choices  will  also  have  to  be  made  as  to  what  to  do  about  the  drug  lords  and 
narcotics  traffickers  who  are  supporting  the  Taliban  and  al  Qaeda  insurgency. 
General  David  D.  McKiernan,  the  top  American  commander  in  Afghanistan,  has 
announced  that  ISAF  forces  will  step  up  attacks  on  these  drug  lords  and  narcotics 
traffickers  in  situations  where  they  are  linked  to  the  movement  of  weapons,  impro- 
vised explosives  or  foreign  fighters  into  Afghanistan.110  American  and  NATO  offi- 
cials have  vigorously  rejected  the  suggestions  of  some  NGOs  that  international 
security  forces  take  an  active  role  in  eradicating  the  poppy  crops,  on  the  ground 
that  such  decisions  should  be  left  to  the  Afghan  government,  which  would  also 
have  to  develop  alternate  livelihoods  for  the  farmers.  But  General  McKiernan  has 
proposed  that  perhaps  this  position  should  be  reexamined  because  the  fight  in  Af- 
ghanistan is  now  not  only  against  the  Taliban  and  al  Qaeda,  but  also  against  "a  very 

100 


John  F.  Murphy 


broad  range  of  militant  groups  that  are  combined  with  the  criminality,  with  the 
narco-trafficking  system,  with  corruption,  that  form  a  threat  and  a  challenge  to 
that  great  country."111  The  major  problem  with  increasing  the  mission  of  the  mili- 
tary in  this  fashion  is  that  there  is  substantial  evidence  that  the  Karzai  government 
and  its  supporters  are  also  receiving  funds  from  the  narco-traffickers. 

With  respect  to  the  problem  of  cross-border  attacks  from  Pakistan,  the  primary 
issue  is  whether  the  new  Pakistani  government  will  have  the  will  and  the  ability  to 
defeat  the  Taliban  and  al  Qaeda  forces  in  the  tribal  areas.  General  McKiernan  has 
reported  that  he  is  "cautiously  optimistic"  that  a  continuing  assault  by  Pakistani 
forces  against  militants  in  the  tribal  area  of  Bajaur  could  put  a  "dent  in  extremist 
operations  in  the  border  region."  He  also  praised  the  appointment  of  the  new  head 
of  Pakistan's  top  spy  organization,  saying  Lieutenant  General  Ahmed  Shuja  Pasha 
was  likely  to  reform  the  agency,  which  in  the  past  had  "institutional  and  historical 
ties  to  the  Taliban  and  other  militant  networks."112 

If,  however,  General  McKiernan's  cautious  optimism  turns  out  to  be  misplaced, 
and  cross-border  attacks  by  Taliban,  al  Qaeda  and  other  militants  become  a  major 
problem,  then  the  choice  facing  US  and  coalition  forces  will  be  especially  hard.  As 
General  John  Craddock  has  acknowledged,  insurgencies  that  enjoy  uncontested 
sanctuary  have  rarely,  if  ever,  been  defeated.113 

Similarly,  General  McKiernan,  in  addressing  the  question  whether  it  is  possible 
to  have  a  positive  outcome  to  the  Afghanistan  campaign  without  resolving  the 
problem  of  insurgent  sanctuaries  in  Pakistan,  has  answered  that  "while  I  won't  say 
it  will  be  impossible,  it  will  be  very,  very  difficult."114  At  the  same  time,  McKiernan 
has  stated  categorically  that  "[f]ailure  is  not  an  option  in  Afghanistan."115  Hence, 
the  likelihood  of  US  and  NATO  attacks  on  targets  in  Pakistan  resuming  under 
these  circumstances  would  be  great.  Moreover,  although  Robert  Gates  has  de- 
fended earlier  such  attacks  as  justified  under  international  law  in  order  to  protect 
US  troops  in  Afghanistan,  as  we  have  seen  earlier,  this  is  a  debatable  proposition, 
and  Gates  has  recognized  that  "Pakistan  probably  did  not  agree  that  international 
law  permitted  unilateral  action."116  Indeed,  as  we  also  saw  earlier,  Pakistan  vehe- 
mently objected  to  the  US  drone  and  special  operations  attacks  in  the  tribal  areas. 

One  should  devoutly  hope  that  failure  in  Afghanistan  is  in  fact  not  an  option. 
Robert  D.  Kaplan  has  recently  suggested  that  "[strategically,  culturally,  and  his- 
torically speaking,  Afghanistan  and  Pakistan  are  inseparable."1 17  Also,  in  his  view: 

[F]ailure  in  Afghanistan  would  do  India  no  favors.  In  Afghanistan  we  are  not  simply 
trying  to  save  a  country,  but  to  give  a  whole  region  a  new  kind  of  prosperity  and 
stability,  united  rather  than  divided  by  energy  needs,  that  would  be  implicitly 


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Afghanistan:  Hard  Choices  and  the  Future  of  International  Law 

pro -American.  .  .  .  What  the  Pentagon  calls  the  "long  war"  is  the  defining  geopolitical 
issue  of  our  time,  and  Afghanistan  is  at  its  heart.  The  fate  of  Eurasia  hangs  in  the  balance. 

But  how  long  is  this  "long  war"  likely  to  be?  A  crucial  issue,  in  both  Iraq  and  Af- 
ghanistan, is  the  time  required  for  a  well-run  counterinsurgency  strategy  to  work. 
Sarah  Sewall,  a  former  Pentagon  official  who  wrote  the  introduction  to  the  Univer- 
sity of  Chicago  edition  of  the  new  U.S.  Army/Marine  Corps  Counterinsurgency  Field 
Manual, l 18  for  one,  is  skeptical  that  the  US  public  will  be  willing  to  "supply  greater 
concentrations  of  forces,  accept  higher  casualties,  fund  serious  nation-building 
and  stay  many  long  years  to  conduct  counterinsurgency  by  the  book."119 

If  Ms.  Sewall's  gloomy  prognosis  should  prove  correct  with  respect  to  Afghani- 
stan, the  adverse  impact  on  international  law  and  international  institutions  would 
be  substantial.  Failure  in  Afghanistan  would  be  a  catastrophic  failure  on  the  part 
not  only  of  the  United  States  but  of  the  world  community  as  a  whole.  It  would 
mean  that  the  Taliban,  al  Qaeda  and  other  militant  Islamic  forces  had  managed  to 
defeat  US  and  other  NATO  forces  in  ISAF,  as  well  as  US  forces  engaged  in  anti- 
terrorism missions  under  Operation  Enduring  Freedom.  This  would  call  into  seri- 
ous question  the  future  viability  of  NATO  and  of  UN  peacekeeping  efforts.  Failure 
in  Afghanistan  would  also  call  into  question  the  continued  viability  of  nation- 
building  efforts,  by  the  United  Nations  and  others,  and  arguably  support  those 
skeptical  of  such  efforts,  such  as  the  Bush  administration  in  its  early  days. 

At  this  writing,  there  are  reports  that  the  Bush  administration  has  initiated  a 
major  review  of  its  Afghanistan  policy  and  that  a  nearly  completed  National  Intel- 
ligence Estimate,  a  formal  report  that  reflects  the  consensus  judgments  of  all 
American  intelligence  agencies,  will  set  forth  an  extremely  grim  assessment  of  the 
current  situation  in  Afghanistan,  especially  of  the  Afghan  leadership  and  its  for- 
eign allies.  This  should  come  as  no  surprise  to  those  familiar  with  the  develop- 
ments and  issues  discussed  in  this  article.  One  must  hope,  however,  that  issuance 
of  the  report  after  the  2008  presidential  election  will  stimulate  a  searching  review 
of  these  developments  and  issues.  Avoiding  failure  in  Afghanistan  will  depend  in 
substantial  measure  upon  a  successful  resolution  of  the  many  issues  arising  out  of 
the  situation  there. 

Notes 

1.  Carlotta  Gall,  U.S.  Killed  90  in  Afghan  Village,  Including  60  Children,  UN.  Finds,  NEW 
YORK  TIMES,  Aug.  27,  2009,  at  A6,  col.  1 .  See  also  Alison  Smale,  Afghanistan  Is  in  Its  Worst  Shape 
Since  2001,  European  Diplomat  Says,  NEW  YORK  TIMES,  Sept.  15,  2008,  at  Al  1,  col.  2. 

2.  Rory  Stewart,  How  to  Save  Afghanistan,  TIME,  July  17,  2008,  available  at  http:// 
www.time.com/time/printout/0,88 16, 1823753,00. html. 


102 


John  F.  Murphy 


3.  See  Eric  Schmitt  8c  Mark  Mazzetti,  Bush  Said  to  Give  Orders  Allowing  Raids  in  Pakistan, 
NEW  YORK  TIMES,  Sept.  11,  2008,  at  Al,  col.  1. 

4.  See  Jane  Perlez,  Pakistan's  Military  Chief  Criticizes  U.S.  Over  a  Raid,  NEW  YORK  TIMES, 
Sept.  11,2008,  at  A8,  col.  3. 

5.  See  Thomas  Schweich,  Is  Afghanistan  a  Narco-State?,  NEW  YORK  TIMES  MAGAZINE,  July 
27,  2008,  available  at  http://www.nytimes.com/2008/07/27/magazine/27AFGHAN-t.html?scp 
= 1  &sq=is%20afghanistan%20a%20narco-state&st=cse. 

6.  Id.  at  I. 

7.  See  Smale,  supra  note  1. 

8.  Much  of  the  information  in  this  section  is  taken  from  Kenneth  Katzman,  Afghanistan: 
Post-War  Governance,  Security,  and  U.S.  Policy,  CRS  REPORT  FOR  CONGRESS  1-7  (July  11, 2008), 
available  at  http://www.fas.org/sgp/crs/row/RL30588.pdf. 

9.  Id.  at  I. 

10.  After  his  government  fell,  Najibullah  declined  to  flee  Afghanistan.  Instead,  he,  his 
brother  and  aides  remained  at  a  UN  facility  in  Kabul  until  the  Taliban  movement  gained  control 
in  1996  and  entered  the  facility  to  seize  and  then  hang  them.  Id.  at  4. 

11.  Id.  at  5. 

12.  S.C.  Res.  1368,  U.N.  Doc.  S/RES/1368  (Sept.  12,  2001). 

13.  S.C.  Res.  1373,  U.N.  Doc.  S/RES/1373  (Sept.  28,  2001). 

14.  Compare  the  language  the  Security  Council  used  in  Resolution  678,  adopted  on  Novem- 
ber 29, 1990,  which  authorized  member  States,  unless  Iraq  complied  with  a  series  of  prior  Coun- 
cil resolutions  by  January  15,  1991,  to  use  "all  necessary  means"  to  "uphold  and  implement" 
these  resolutions  and  "to  restore  international  peace  and  security  in  the  area." 

15.  It  is  debatable,  however,  whether  the  Security  Council  has  ever  acted  in  such  a  way  as  to 
supersede  the  right  to  individual  or  collective  self-defense.  See,  e.g.,  Eugene  V.  Rostow,  Until 
What?  Enforcement  Action  or  Collective  Self-defense?,  85  AMERICAN  JOURNAL  OF  INTERNATIONAL 
LAW  506  (1991),  in  which  the  author  argues  that  the  Persian  Gulf  War  of  1990-91  was  not  a  UN 
enforcement  action  but  rather  "a  campaign  of  collective  self-defense  approved,  encouraged,  and 
blessed  by  the  Security  Council."  To  the  contrary,  see  Thomas  M.  Franck  8c  Faiza  Patel,  UN  Police 
Action  in  Lieu  of  War:  The  Old  Order  Changeth,  85  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 
63(1991). 

1 6.  For  a  forceful  defense  of  the  proposition  that  "all  lingering  doubts  on  this  issue  have  been 
dispelled  as  a  result  of  the  response  of  the  international  community  to  the  shocking  events  of  9 
[sic]  September  2001  (9/11),"  see  YORAM  DlNSTEIN,  WAR,  AGGRESSION,  AND  SELF-DEFENSE 
206-8  (4th  ed.  2005). 

17.  This  discussion  of  the  early  combat  operations  in  Afghanistan  is  based  primarily  on 
Katzman,  supra  note  8,  at  7  and  BARRY  E.  CARTER  ET  AL.,  INTERNATIONAL  LAW  80-84  (5th  ed. 
2007). 

18.  See  excerpts  from  the  President's  speech  in  CARTER  ET  AL.,  supra  note  17,  at  80-81. 

19.  According  to  reports,  "some  critics  believe  that  U.S.  dependence  on  local  Afghan  militia 
forces  in  the  war  strengthened  the  militias  in  the  post-war  period."  Katzman,  supra  note  8,  at  7. 

20.  Id. 

21.  Id. 

22.  Id. 

23.  See  DlNSTEIN,  supra  note  16,  and  associated  text. 

24.  Mat  206-7. 

25.  As  a  condition  precedent  to  its  invocation  of  Article  5,  for  the  first  time  in  history,  the  At- 
lantic Council  met  and  agreed  that  there  had  to  be  evidence  that  the  attack  against  the  United 


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Afghanistan:  Hard  Choices  and  the  Future  of  International  Law 

States  was  directed  from  abroad.  Evidence  to  support  this  condition  was  presented  to  and 
deemed  sufficient  by  the  Council. 

26.  Dinstein  notes  further  that  "[t]his  must  be  understood  in  light  of  Article  3  of  the  Rio 
Treaty,  which  refers  specifically  to  an  armed  attack  and  to  the  right  of  self-defence  pursuant  to 
Article  51 "  DINSTEIN,  supra  note  16,  at  208. 

27.  Michael  Byers,  for  example,  has  described  the  US  "expansion"  of  the  definition  of  self- 
defense  to  include  a  military  response  against  States,  such  as  Afghanistan,  that  willingly  harbor 
terrorist  groups  that  have  attacked  the  United  States  as  "dangerous"  because  it  might  be  ex- 
tended to  situations  where  the  provocation  is  far  less  grave  than  the  September  1 1  attacks.  See 
Michael  Byers,  War  Law:  Understanding  International  Law  and  Armed  Conflict  67 
(2005). 

28.  See,  e.g.,  David  Usborne,  UN  Raps  U.S.  Military  after  Afghan  Wedding  Deaths  Cover-up, 
THE  INDEPENDENT  (London),  July  30,  2002,  at  9. 

29.  See, CARTER  ET  AL.,  supra  note  17,  at  82. 

30.  For  discussion  of  this  debate,  see  John  F.  Murphy,  Force  and  Arms,  in  1  UNITED  NATIONS 
LEGAL  ORDER  247,  286-88  (Oscar  Schachter  &  Christopher  C.  Joiner  eds.,  1995). 

31.  See  e.g.,  Mary  Ellen  O'Connell,  Lawful  Self-Defense  to  Terrorism,  61  UNIVERSITY  OF 
PITTSBURGH  LAW  REVIEW  889,  902-4  (2002). 

32.  Id.  at  904.  J 

33.  See  Pamela  Constable,  U.S.  Hopes  to  Attract  Moderates  in  Taliban;  Powell  sees  them  in 
'New  Afghanistan/  WASHINGTON  POST,  Oct.  17,  2001,  at  A24,  cited  in  id.  at  904  n.97. 

34.  Katzman,  supra  note  8,  at  7. 

35.  O'Connell,  supra  note  31,  at  904. 

36.  See  Katzman,  supra  note  8,  at  7. 

37.  The  "Six  Plus  Two"  group  consisted  of  the  United  States,  Russia,  and  the  six  States  bor- 
dering Afghanistan:  Iran,  China,  Pakistan,  Turkmenistan,  Uzbekistan,  and  Tajikistan.  Other 
failed  efforts  included  a  "Geneva  group"  (Italy,  Germany,  Iran  and  the  United  States)  formed  in 
2000;  an  Organization  of  the  Islamic  Conference  contact  group;  and  Afghan  exile  efforts,  includ- 
ing one  by  the  Karzai  clan  (including  Hamid  Karzai)  and  one  centered  on  Zahir  Shah,  the  former 
king  of  Afghanistan.  See  id.  at  7-8. 

38.  S.C.  Res.  1378,  U.N.  Doc.  S/RES/1378  (Nov.  14,  2001). 

39.  Katzman,  supra  note  8,  at  8.  In  most  instances  where  the  United  Nations  has  sought  to 
broker  a  post-conflict  peace  process,  it  has  relied  on  existing  administrative  and  political  institu- 
tions. This  could  not  be  the  case  in  Afghanistan,  where  the  Taliban  had  been  removed  from 
power  and  what  little  it  had  in  the  way  of  an  administrative  and  political  infrastructure  de- 
stroyed. See  Marina  Ottaway  &  Bethany  Lacina,  International  Interventions  and  Imperialism:  Les- 
sons from  the  1990s,  23  SAIS  REVIEW  OF  INTERNATIONAL  AFFAIRS  71,  82  (Summer-Fall  2003). 

40.  The  text  of  the  Bonn  Agreement  is  available  at  http://www.ag-afghanistan.de/files/ 
petersburg.htm. 

41.  S.C.  Res.  1385,  U.N.  Doc.  S/RES/1385  (Dec.  6,  2001). 

42.  Katzman,  supra  note  8,  at  8. 

43.  Id. 

44.  See  Astri  Suhrke,  Democratizing  a  Dependent  State:  The  Case  of  Afghanistan,  DEMOCRA- 
TIZATION, June  1,  2008,  available  at  http://pdfserve.informaworld.com/974713_731198615 
_793225710.pdf. 

45.  Id.  at  634. 

46.  Mat  635. 

47.  Id 


104 


John  F.  Murphy 


48.  Id.  at  638. 

49.  Id. 

50.  Id.  at  639. 

51.  id.  at  640. 

52.  Id.  at  641. 

53.  Id. 

54.  Id.  at  644. 

55.  Katzman,  swpra  note  8,  at  10. 

56.  Id. 

57.  Id. 

58.  Mat  11. 

59.  Id. 

60.  S.C.  Res.  1608,  U.N.  Doc.  S/RES/1608  (Mar.  20,  2008). 

61.  Katzman,  supra  note  8,  at  12. 

62.  S.C.  Res.  1386,  U.N.  Doc.  S/RES/1386  (Dec.  20,  2001),  operative  para.  1. 

63.  Id.,  operative  para.  3. 

64.  Id.,  operative  para.  2. 

65.  Id.,  operative  para.  10. 

66.  CARTER  ET  AL.,  supra  note  17,  at  86. 

67.  Id. 

68.  See  James  Kitfield,  Backsliding,  NATIONAL  JOURNAL,  Sept.  13,  2008,  at  30,  36. 

69.  See  Yochi  J.  Deazen,  Troop  Needs  Open  NATO  Rift,  WALL  STREET  JOURNAL,  Feb.  8, 2008, 
atA8,  col.  1. 

70.  Id. 

71.  See  Fidelius  Schmid,  Jon  Boone  8c  Stephen  Fidler,  Paris  comes  to  Canada's  aid  with  extra 
troops,  Financial  Times,  Feb.  8, 2008,  at  2,  col.  l. 

72.  Id. 

73.  See  Stephen  Fidler,  US  flags  up  Afghanistan  terror  dangers  for  Europe,  FINANCIAL  TIMES, 
Jan.  11,2008,  at  4,  col.  7. 

74.  Id. 

75.  Kitfield,  supra  note  68,  at  36. 

76.  See  Bartle  Breese  Bull,  The  Wrong  Force  for  the  'Right  War,'  NEW  YORK  TIMES,  Aug.  14, 
2008,  at  A23,  col.  2. 

77.  Id. 

78.  Id. 

79.  See  Kitfield,  supra  note  68,  at  36. 

80.  Id. 

81.  Id. 

82.  Id.  at  33. 

83.  Id.  at  40. 

84.  Id. 

85.  See  John  F.  Burns,  Karzai  Sought  Saudi  Help  With  Taliban,  NEW  YORK  TIMES,  Oct.  1, 
2008,  at  A12,  col.  1. 

86.  See  Jane  Perlez  8c  Pir  Ubair  Shah,  Confronting  Taliban,  Pakistan  Finds  Itself  at  War,  NEW 
YORK  TIMES,  Oct.  3,  2008,  at  Al,  col.  4. 

87.  Burns,  supra  note  85,  at  A12,  col.  1. 

88.  See  Schweich,  supra  note  5. 


105 


Afghanistan:  Hard  Choices  and  the  Future  of  International  Law 

89.  See  James  Risen,  Reports  Link  Karzais  Brother  to  Afghanistan  Heroin  Trade,  NEW  YORK 
TIMES,  Oct.  5,  2008,  at  1. 

90.  See  Schweich,  supra  note  5,  at  9-10. 

91.  See  Bull,  supra  note  76. 

92.  See  Statute  of  the  International  Criminal  Court  art.  8(2)(b)(i)-(ii),  July  17,  1998,  2187 
U.N.T.S.  90.  For  discussion  of  the  problem  of  "collateral  damage,"  see  YORAM  DlNSTEIN,  THE 
Conduct  of  Hostilities  under  the  Law  of  International  Armed  Conflict  115-16 
(2004). 

93.  DlNSTEIN,  supra  note  92,  at  115,  quoting  Waldemar  A.  Solf,  Article  51,  in  MICHAEL 
Bothe,  Karl  J.  Partsch  &  Waldemar  A.  Solf,  New  Rules  for  Victims  of  Armed 

CONFLICTS:  COMMENTARY  ON  THE  TWO  1977  PROTOCOLS  ADDITIONAL  TO  THE  GENEVA 
CONVENTIONS  OF  1949,  at  296,  300  (1982). 

94.  See  Charles  J.  Dunlap  Jr.,  Using  bad  PR  is  Taliban's  defense  against  airpower,  ATLANTA 
JOURNAL-CONSTITUTION,  Sept.  17,  2008,  available  at  http://www.ajc.com/opinion/content/ 
opinion.stories/2008/09/17dunlaped.  In  his  op-ed  piece  General  Dunlap  quotes  a  conversation 
between  Taliban  commanders,  intercepted  by  US  intelligence  officers,  in  which  one  of  the  com- 
manders says,  "Tanks  and  armor  are  not  a  big  deal — the  planes  are  the  killers.  I  can  handle  every- 
thing but  the  jet  fighters." 

95.  See  Trudy  Rubin,  Danger  on  Remote  Pakistan  Border,  PHILADELPHIA  INQUIRER,  Oct.  5, 
2008,  at  CI,  col.  1. 

96.  See  Bull,  supra  note  76. 

97.  See  Jimmy  Burns  &  Daniel  Dombey,  Britain  risks  US  rift  in  war  against  Taliban,  FINAN- 
CIAL TIMES,  Oct.  6,  2008,  at  9,  col.  1. 

98.  Id. 

99.  Id. 

100.  See  Rubin,  supra  note  95,  at  CI,  C6. 

101.  See  Perlez  &  Shah,  supra  note  86,  and  accompanying  text. 

102.  See  DlNSTEIN,  supra  note  16,  and  accompanying  text. 

103.  Legal  Consequences  of  the  Construction  of  a  Wall  in  the  Occupied  Palestinian  Territory, 
Advisory  Opinion,  2004  I.C.J.  136  (July  9). 

1 04.  For  sharply  contrasting  views  on  the  opinion,  compare  Sean  D.  Murphy,  Self-Defense  and 
the  Israeli  Wall  Advisory  Opinion:  An  Ipse  Dixit  from  the  ICJ?,  99  AMERICAN  JOURNAL  OF  INTER- 
NATIONAL LAW  62  (2005),  with  Iain  Scobbie,  Words  My  Mother  Never  Taught  Me — In  Defense  of 
the  International  Court,  99  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  76  (2005). 

105.  Armed  Activities  on  the  Territory  of  the  Congo  (Dem.  Rep.  Congo  v.  Uganda),  2005 
I.C.J.  116,  para.  147  (Dec.  19). 

106.  Legality  of  the  Threat  or  Use  of  Nuclear  Weapons,  Advisory  Opinion,  1996  I.C.J.  226, 
para.  141  (July  8). 

107.  See  Rubin,  supra  note  95. 

108.  See,  e.g.,  Bull,  supra  note  76. 

109.  E-mail  from  James  Kitfield  to  John  F.  Murphy  (Sept.  30,  2008)  (on  file  with  author). 

110.  See  Thorn  Shanker  &  Eric  Schmitt,  NATO  Aims  At  Afghans  Whose  Drugs  Aid  Militants, 
NEW  YORK  TIMES,  Oct.  2,  2008,  at  A8,  col.  1. 

111.  Id. 

112.  Id. 

113.  Kitfield,  supra  note  68,  at  37. 

114.  Mat  38. 

115.  Id.  at  35. 


106 


John  R  Murphy 


116.  See  Demetri  Sevastopulo,  Gates  defends  operations  inside  Pakistan,  FINANCIAL  TIMES, 
Sept.  24,  2008,  at  8,  col.  1. 

1 1 7.  See  Robert  D.  Kaplan,  A  Manhunt  Or  A  Vital  War?,  NEW  YORK  TIMES  SUNDAY  OPINION, 
Oct.  5,  2008,  at  10,  col.  2. 

118.  See  Sarah  Sewall,  Introduction  to  THE  U.S.  ARMY/MARINE  CORPS  COUNTERINSURGENCY 
FIELD  MANUAL  xxi  (Univ.  of  Chicago  Press  2007). 

119.  Id.  at  xxxviii-xxxix. 


107 


V 


The  International  Legality  of  US  Military 

Cross-Border  Operations 

from  Afghanistan  into  Pakistan 

Sean  D.  Murphy* 

Introduction 

An  aspect  of  US  military  involvement  in  Afghanistan  since  2001  has  been  the 
use  of  cross-border  US  operations  from  Afghanistan  into  Pakistan,  under- 
taken for  the  purposes  of  striking  at  the  camps,  compounds,  and  convoys  of  Al 
Qaeda  and  Taliban  elements  based  in  Pakistan,  and  of  defending  against  cross- 
border  attacks  and  infiltration  by  those  militants  from  Pakistan  into  Afghanistan. 
As  a  matter  of  scale,  US  cross-border  operations  are  far  less  momentous  than  oper- 
ations that  seek  to  topple  a  dejure  government  (as  occurred  when  the  United  States 
intervened  in  Iraq  in  2003,  ousting  the  government  of  Saddam  Hussein)  or  a  de 
facto  government  (as  occurred  when  the  United  States  intervened  in  Afghanistan 
in  2001,  displacing  the  largely- unrecognized  government  of  the  Taliban).  Never- 
theless, these  smaller-scale  cross-border  attacks  on  non-State  actors,  though  they 
entail  less  intrusive  and  more  temporary  projections  of  force,  implicate  important 
issues  of  sovereignty,  stability,  and  self-defense,  and  raise  difficult  questions  about 
the  role  of  law  in  regulating  low- intensity  conflict. 

This  article  discusses  the  nature  of  these  cross-border  operations  for  the  pur- 
pose of  assessing  their  legality  under  the  jws  ad  bellum,  meaning  their  consistency 


*  Patricia  Roberts  Harris  Research  Professor  of  Law,  George  Washington  University  Law  School. 


The  International  Legality  of  US  Military  Cross-Border  Operations 

with  the  norms  embodied  in  Articles  2(4)  and  51  of  the  UN  Charter.  Attention  is 
devoted  to  unpacking  the  complicated  and  evolving  circumstances  on  the 
ground,  but  the  facts  at  issue  in  many  instances  are  quite  difficult  to  discern,  and 
hence  can  support  only  tentative  legal  conclusions.  While  the  focus  here  will 
principally  be  on  US  operations  from  Afghanistan  into  Pakistan  from  2002  to 
the  present,  the  analysis  is  relevant  in  other  contexts  as  well,  such  as  Turkey's 
cross-border  operations  in  northern  Iraq  against  the  Kurdistan  Workers'  Party  or 
Colombia's  recent  forays  into  Ecuador  against  the  Revolutionary  Armed  Forces 
of  Colombia. 

Among  other  things,  this  article  assumes  that  analyzing  the  legality  of  US  cross- 
border  operations  into  Pakistan  under  the  jus  ad  bellum  is  important  to  the  United 
States.  US  law  and  policy  generally  call  for  compliance  with  international  law  in  the 
conduct  of  US  military  operations.  Further,  US  ability  to  secure  the  cooperation  of 
other  States  may  turn  on  whether  US  operations  are  in  compliance  with  interna- 
tional law.  Support  from  US  allies  includes  support  from  Pakistan  itself,  in  that  most 
cargo  and  much  fuel  supporting  the  approximately  thirty  thousand  US  forces  that 
are  based  in  landlocked  Afghanistan  transit  through  Pakistan.1  Indeed,  in  September 
2008,  the  Pakistani  government  threatened  to  close  down  US  supply  routes  into 
Afghanistan  in  response  to  US  cross-border  operations,  prompting  the  United 
States  to  rethink  its  strategy  in  this  area.2  Broader  US  objectives  of  maintaining  a 
stable  Pakistan — an  objective  arguably  paramount  for  the  United  States  in  com- 
bating terrorism3 — may  turn  in  part  on  internal  Pakistani  perceptions  concerning 
the  legality  of  US  conduct.  Moreover,  though  adjudication  of  the  legality  of  US 
cross-border  operations  before  an  inter-State  tribunal,  such  as  the  International 
Court  of  Justice,  may  not  be  likely,  it  is  not  impossible,  and  adverse  rulings  may  af- 
fect the  ability  of  the  United  States  to  maintain  both  domestic  and  international 
support  for  its  policies.4  Finally,  the  State  parties  to  the  Rome  Statute5  establishing 
the  International  Criminal  Court  (ICC),  at  their  review  conference  in  2010,  may 
activate  the  ICC's  jurisdiction  over  the  crime  of  aggression,  thereby  potentially  ex- 
posing US  military  personnel  engaged  in  such  cross-border  operations  to  interna- 
tional criminal  liability.6  For  all  these  reasons,  there  is  value  in  assessing  the  legality 
of  US  cross-border  operations  against  Pakistan  under  the  jus  ad  bellum. 

US  Cross-Border  Operations  from  Afghanistan  to  Pakistan 

The  Afghan-Pakistan  Border  in  Law 

The  2,250-kilometer-long  border  between  Afghanistan  and  Pakistan  was  essen- 
tially established  in  1893  by  Sir  Henry  Mortimer  Durand,  a  civil  servant  and  diplomat 
of  colonial  British  India.  The  purpose  of  the  line  (which  became  known  as  the 

110 


Sean  D.  Murphy 


"Durand  Line")  was  to  delimit  British  colonial  holdings  in  India  from  Afghanistan, 
since  Pakistan  did  not  yet  exist  as  a  nation-State.  The  standard  account  is  that  the 
Durand  Line  was  negotiated  with  and  accepted  by  the  Amir  of  Afghanistan,  Abdur 
Rahman  Khan,  and  when  Pakistan  achieved  national  independence  in  1947,  Paki- 
stan succeeded  to  that  border.7 

The  border,  however,  is  not  without  some  controversy.  Given  that  the  border  di- 
vides the  ancestral  home  of  the  Pashtun  people,  the  Pashtuns  have  objected  that  the 
border  was  imposed  by  a  strong  colonial  power  (Britain)  upon  a  weak  State  (Af- 
ghanistan), which  was  in  no  real  position  to  object.  In  the  years  after  Pakistani  inde- 
pendence, Afghanistan  began  to  voice  a  view  that  the  Durand  Line  lapsed  with  the 
end  of  the  British  colonial  rule,8  a  position  that  essentially  rejects  the  internationally 
accepted  principle  of  uti  possedetis  juris  (which  maintains  that  States  newly  formed 
out  of  colonies  should  have  the  same  borders  that  they  had  before  their  independ- 
ence). The  Afghan  position  is  widely  accepted  within  Afghanistan,  but  has  gained 
no  traction  in  the  international  community,  and  would  likely  not  be  accepted  by 
any  authoritative  decisionmaker,  such  as  the  International  Court  of  Justice.  By 
contrast,  Pakistan  has  maintained  that  the  border  is  of  longstanding  legality,  is  fully 
demarcated  and  largely  follows  a  series  of  topographic  features  that  provides  for  a 
natural  divide.9 

In  short,  the  border  as  a  legal  construct  is  well  known  and  accepted  within  the 
international  community.  As  such,  arguments  in  favor  of  significant  cross-border 
operations  cannot  credibly  be  justified  on  grounds  of  uncertainty  as  to  the  location 
of  the  border  or  genuinely  disputed  territory;  other  justifications  are  necessary. 

The  Afghan-Pakistan  Border  in  Practice 

While  the  location  of  the  Afghan-Pakistani  border  is  relatively  well  settled,  the 
functioning  of  that  border  as  an  effective  barrier  between  the  two  States  is  far  less 
so.  The  movement  of  peoples  across  the  border  is  generally  unchecked,  with  sizable 
populations  of  both  Pashtuns  and  Baluch  on  both  sides  of  the  border  moving  freely 
and  engaged  in  extensive  smuggling  operations  that  predate  200 1.10  The  graphic11 
depicts  the  border  area.  On  the  Pakistani  side  of  the  border,  there  are  certain 
groups  that  are  the  object  of  US  cross-border  operations. 

First,  there  are  the  remnants  of  Al  Qaeda  and  other  extremist  Islamic  "foreign 
fighters"  who  fled  across  the  border  from  Afghanistan  after  the  US-led  interven- 
tion in  the  fall  of  2001.  US  defense  officials  and  independent  analysts  place  the 
number  of  Al  Qaeda  fighters  in  Afghanistan  at  somewhere  between  150  and  500 
persons.12  Osama  Bin  Laden  is  thought  to  be  hiding  among  those  fighters  in  the 
Waziristan  region  of  Pakistan,  which  is  part  of  the  Federally  Administered  Tribal 


111 


The  International  Legality  of  US  Military  Cross-Border  Operations 


AFGHANISTAN 


•  Kabul 


BALUCHISTAN     *» 


INDIA 


RAND  MG595-4. 2 


112 


Sean  D.  Murphy 


Areas  (FATA)  immediately  adjacent  to  the  border,13  but  his  whereabouts  are  not 
confirmed. 

Second,  there  are  remnants  of  the  Afghan  Taliban  regime  (a  predominately 
Pashtun  movement)  that  also  fled  into  Pakistan  in  late  2001,  but  have  reorganized 
and  experienced  a  resurgence  in  fomenting  guerrilla  resistance  to  the  new  Afghan 
government  and  its  foreign  supporters,  including  the  United  States.14  At  present, 
Afghan  insurgent  groups  based  along  the  Afghan-Pakistani  demarcation  straddle 
both  sides  of  the  border,  engaging  in  classic  guerrilla  warfare  by  attacking  targets 
in  Afghanistan  and  then  retreating  to  mountain  strongholds  on  both  sides  of  the 
border.15 

Third,  there  is  Pakistan's  own  Taliban  movement  (called  Tehrik-e-Taliban  Pa- 
kistan), led  by  Baitullah  Mehsud,  and  consisting  of  a  cluster  of  Pashtun  tribes  and 
clans  united  principally  by  a  shared  goal  of  resistance  to  the  Pakistani  and  US  gov- 
ernments. Tehrik-e-Taliban  Pakistan  has  established  strongholds  in  North  and 
South  Waziristan,  and  at  present  there  are  concerns  about  "Talibanization"  of  the 
entire  western  region  of  Pakistan.  While  Pakistan's  Taliban  is  principally  focused 
on  activities  within  Pakistan,  it  is  also  promoting  fighting  across  the  border  with 
US  forces  in  Afghanistan.16 

The  relationship  among  Al  Qaeda,  other  militant  groups,  the  Afghan  Taliban 
and  the  Taliban  in  Pakistan  is  not  entirely  transparent,  but  connections  clearly  do 
exist.  Many  of  the  "foreign  fighters"  in  the  region  take  their  guidance  from  senior 
Al  Qaeda  leaders  and  serve  as  "trainers,  shock  troops,  and  surrogate  leaders  for 
Taliban  units  in  the  field."17  In  this  way,  Al  Qaeda  is  supporting  militants  who  cross 
the  border  into  Afghanistan,  as  well  as  insurgent  groups  in  Afghanistan,  in  their  at- 
tacks on  US  and  coalition  forces,  as  well  as  the  Afghan  government.  A  recent 
RAND  report  states: 

Al  Qaeda  played  a  critical  role  in  the  [Afghan]  insurgency  as  a  force  multiplier,  assisting 
insurgent  groups  such  as  the  Taliban  at  the  tactical,  operational,  and  strategic  levels. 
Groups  such  as  the  Taliban  used  support  and  training  from  jihadists  to  construct 
increasingly  sophisticated  IEDs  [improvised  explosive  devices],  including  IEDs  with 
remote- control  detonators.  For  example,  there  were  a  handful  of  al  Qaeda-run 
training  facilities  and  IED  assembly  facilities  in  such  places  as  North  and  South 
Waziristan. . . .  al  Qaeda  received  operational  and  financial  support  from  local  clerics 
and  Taliban  commanders  in  Waziristan.18 

A  Taliban  commander  characterized  the  Taliban  and  Al  Qaeda  in  Pakistan  as  hav- 
ing "close  ties,"  while  a  US  military  intelligence  official  stated  that  "trying  to  sepa- 
rate Taliban  and  al  Qaeda  in  Pakistan  serves  no  purpose.  It's  like  picking  gray  hairs 
out  of  your  head."19 

113 


The  International  Legality  of  US  Military  Cross-Border  Operations 

In  recent  testimony  before  the  US  Senate  Armed  Service  Committee,  the  Vice 
Chairman  of  the  Joint  Chiefs  of  Staff,  General  James  Cartwright,  testified  that  Is- 
lamic militant  fighters  crossing  the  border  from  the  FATA  region  of  Pakistan  into 
Afghanistan  account  for  about  30-40  percent  of  the  guerrilla  attacks  taking  place  in 
Afghanistan  against  the  Afghan  government  or  its  allies.20  Further,  those  cross- 
border  attacks  (many  of  which  are  suicide  attacks)  from  Afghanistan  have  been  on 
the  rise,  from  twenty  a  month  in  March  2007  to  fifty-three  a  month  in  April  2008, 
with  many  attacks  targeting  troops  from  countries  considering  whether  to  with- 
draw their  forces  from  Afghanistan,  such  as  Canada  and  the  Netherlands.21  Ac- 
cording to  the  RAND  study: 

Several  factors  can  be  attributed  to  the  rise  in  suicide  attacks.  First,  the  Taliban 
successfully  tapped  into  the  expertise  and  training  of  the  broader  jihadist  community, 
especially  al  Qaeda.  Jihadists  imparted  knowledge  on  suicide  tactics  to  Afghan  groups 
through  the  Internet  and  in  face-to-face  visits.  With  al  Qaeda's  assistance,  these 
militants  helped  supply  a  steady  stream  of  suicide  bombers.  Second,  al  Qaeda  and  the 
Taliban  concluded  that  suicide  bombing  was  more  effective  than  other  tactics  in  killing 
Afghan  and  coalition  forces.22 

The  government  of  Pakistan  generally  does  not  control  the  FATA  region,  which 
is  divided  into  largely  autonomous  provinces  loosely  linked  to  Islamabad  by  means 
of  a  "political  agent"  (a  vestige  of  British  colonialism).  Indeed,  the  legal  relation- 
ship is  so  attenuated  that  the  ability  of  the  Pakistani  government,  under  Pakistani 
law,  to  authorize  US  military  actions  in  the  FATA  is  not  entirely  clear.  Conse- 
quently, prior  to  the  attacks  of  September  11,  2001,  the  border  areas  were  almost 
entirely  in  the  hands  of  local  tribal  groups.  After  9/11  and  the  US-led  intervention 
in  Afghanistan,  the  United  States  urged  Pakistan's  central  government  to  exercise 
greater  control  over  the  border  areas,  which  resulted  in  the  Pakistani  army  reluc- 
tantly conducting  some  counterterrorism  operations  in  the  FATA  against  Taliban 
and  Al  Qaeda  operatives.  Those  operations  were  not  effective  in  eliminating  mili- 
tant groups  and  caused  significant  collateral  civilian  casualties  that  inflamed  local 
animosity  toward  the  Pakistani  government  and  army.23  Most  military  operations 
have  been  left  to  the  eighty-thousand-person  "Frontier  Corps,"  a  poorly  trained 
and  underfunded  paramilitary  force  consisting  of  recruits  from  local  Pashtun 
tribes  serving  under  regular  Pakistani  army  officers.  While  these  units  have  some- 
times engaged  in  assaults  on  Taliban  and  Al  Qaeda  elements  in  the  border  areas, 
there  are  credible  reports  (denied  by  the  Pakistani  government)  that  elements  of 
the  Frontier  Corps  are  closely  aligned  with  the  Taliban.24  In  response  to  Pakistani 
government  military  operations,  the  militant  groups  in  the  FATA  began  conduct- 
ing a  series  of  suicide  attacks  against  various  targets  in  other  parts  of  Pakistan  to 

114 


Sean  D.  Murphy 


show  their  strength  and  weaken  the  Pakistani  government,  though  such  attacks 
may  have  undermined  support  for  the  militants  within  the  Pakistani  population.25 

Islamabad's  efforts  to  "govern"  the  FATA  have  always  entailed  deals  being 
struck  between  the  government,  its  regional  authorities,  or  the  Pakistani  army  and 
the  FATA  tribal  officials.  In  the  post-9/11  period,  the  Pakistani  government  con- 
tinued to  pursue  such  deal  making,  including  agreements  not  just  with  tribal 
groups  but  with  Tehrik-e-Taliban  Pakistan  itself,  addressing  issues  such  as  control 
of  the  border  areas,  militant  terrorist  attacks  within  Pakistan  and  militant  cross- 
border  attacks  into  Afghanistan.26  As  such,  the  strategy  of  the  central  Pakistani 
government  in  handling  the  western  border  areas  has  oscillated  between  military 
action  and  negotiation. 

The  opaqueness  of  the  relationship  among  the  Pakistani  Army,  the  Frontier 
Corps  and  the  militants  in  the  FATA  somewhat  clouds  the  legal  analysis  that  fol- 
lows, since  the  cross-border  militant  attacks  on  Afghanistan  might  or  might  not  be 
viewed  as  attributable  to  the  Pakistani  government,  either  due  to  that  govern- 
ment's outright  collusion  with  the  Taliban  or  its  failure  to  take  the  steps  necessary 
to  stop  cross-border  attacks.  On  the  one  hand,  in  some  instances  US  intelligence 
officials,  as  well  as  independent  researchers,  have  concluded  that  the  Pakistani  gov- 
ernment has  provided  direct  support  to  militants  for  operations  in  Afghanistan, 
such  as  logistical  support  for  a  militant  car  bombing  at  the  Indian  Embassy  in 
Kabul  in  July  2008,  a  charge  denied  by  Pakistan.27  In  light  of  those  conclusions,  it  is 
no  surprise  that  the  Washington  Post  reported  Central  Intelligence  Agency  and  US 
military  officials  as  saying  that  they  "now  withhold  intelligence  about  the  suspected 
whereabouts  of  al-Qaeda  commanders  [in  Pakistan]  out  of  fear  that  the  Pakistanis 
might  tip  them  off."28 

On  the  other  hand,  the  Pakistani  government's  general  indifference  to  militant 
attacks  across  the  border  into  Afghanistan  probably  lies  less  in  tacit  support  for 
those  operations  than  in  a  simple  belief  that  pursuing  large-scale  military  opera- 
tions in  the  FATA  that  kill  Pashtuns,  trample  prior  agreements  providing  for  the 
FATA  autonomy  and  incur  significant  Pakistani  army  casualties  would  be  ex- 
tremely unpopular  with  the  Pakistani  population  and  ultimately  ineffective  in 
stopping  cross-border  attacks.  Moreover,  some  Pakistani  officials  apparently  wish 
to  preserve  the  possibility  of  a  "Taliban  option,"  one  that  might  prove  useful  for  fu- 
ture relations  in  Afghanistan.29  Whatever  the  reason,  by  mid-2008  the  New  York 
Times  was  reporting  that  "Pakistani  officials  are  making  it  increasingly  clear  that 
they  have  no  interest  in  stopping  cross-border  attacks  by  militants  into  Afghani- 
stan, prompting  a  new  level  of  frustration  from  Americans  who  see  the  infiltration 
as  a  crucial  strategic  priority  in  the  war  in  Afghanistan."30 


115 


The  International  Legality  of  US  Military  Cross-Border  Operations 

US  Cross-Border  Operations  into  Pakistan 

US  cross-border  operations  into  Pakistan  to  date  have  taken  three  forms:  missile 
strikes  from  Predator  drones,  defensive  actions  in  immediate  response  to  a  cross- 
border  raid  from  Pakistan  and  covert  missions  by  special  operations  forces  against 
militant  targets  located  deeper  in  Pakistan.  Each  should  be  considered  separately 
when  analyzing  their  legality  under  the  jus  ad  helium. 

First,  the  United  States  has  engaged  in  attacks  against  what  are  believed  to  be  Al 
Qaeda  and  Taliban  targets  (such  as  training  camps,  compounds  or  convoys)  in  Pa- 
kistan, using  Hellfire  missiles  launched  from  unmanned  Predator  aircraft.  At  least 
some  of  those  aircraft  are  reportedly  kept  at  a  secret  base  in  Pakistan,  not  Afghani- 
stan, such  that  these  are  not  necessarily  cross-border  operations.31  Further,  the  Pa- 
kistani government  apparently  has  tacitly  agreed  that  these  strikes  may  be 
undertaken  without  specific  consent  to  each  operation,  so  long  as  they  target  "for- 
eign fighters"  and  not  Pakistani  Taliban,  though  the  existence  of  that  tacit  consent 
is  disputed.32  While  the  United  States  does  not  disclose  its  strikes,  the  Pakistani 
government  asserted  that  three  strikes  occurred  in  2007,  while  eleven  were  con- 
ducted from  January  to  August  of  2008,33  with  perhaps  another  dozen  or  more  in 
September  and  October.34  The  strikes  reportedly  have  had  some  success,  killing 
several  senior  Al  Qaeda  leaders.35  Yet  they  have  also  been  blamed  for  the  deaths  of 
dozens  of  civilians  in  Pakistan,  collateral  casualties  that  have  fueled  resentment 
among  Pakistanis  toward  the  United  States.  If  relations  between  the  United  States 
and  Pakistan  were  to  deteriorate,  and  Predator  aircraft  were  no  longer  allowed  to 
be  launched  from  within  Pakistan,  then  presumably  such  aircraft  might  be  based  in 
Afghanistan  for  the  purpose  of  undertaking  cross-border  missions  into  Pakistan. 

Second,  while  US  military  forces  engaged  in  military  operations  in  Afghanistan 
are  generally  prohibited  from  crossing  or  firing  into  Pakistan,  their  rules  of  engage- 
ment apparently  allow  them  to  do  so  as  a  matter  of  "hot  pursuit"  when  engaging  in 
self-defense.36  Hence,  when  US  forces  come  under  attack  from  militants  (either 
by  artillery  fire  from  Pakistan  or  by  militant  units  who  cross  over  the  border  from 
Pakistan),  US  forces  have  responded  forcibly  against  the  militants  both  in  Afghani- 
stan and  through  pursuit  of  the  militants  back  into  Pakistan.  For  example,  in  June 
2008,  US  officials  asserted  that  Taliban  fighters  from  Pakistan  crossed  over  the 
border  into  Afghanistan  (Kunar  Province)  and  attacked  US-led  forces  with 
small-caliber  weapons  and  rocket-propelled  grenades.  The  US -led  forces  returned 
fire,  drove  the  militants  back  across  the  border,  and  then  pursued  them  with  US  Air 
Force  fighter-bombers  and  a  B- 1  bomber,  which  dropped  twelve  gravity  bombs  on 
them.  Though  US  forces  apparently  alerted  Pakistani  forces  in  advance  about  the 
intended  airstrike,  Pakistani  Frontier  Corps  personnel  were  present  at  a  border 
checkpoint.  Eleven  were  killed  by  the  bombs  (as  were  several  of  the  militants), 

116 


Sean  D.  Murphy 


resulting  in  a  strong  protest  by  the  Pakistani  government  that  the  US  operation  was 
"a  gross  violation  of  the  international  border."37 

The  determination  that  an  attack  from  Pakistan  against  US  forces  in  Afghani- 
stan has  occurred  or  is  occurring  has  proven  somewhat  elastic.  Hence,  in  at  least 
one  instance,  when  US  forces  received  information  that  militants  were  on  the 
move  in  Pakistan  and  heading  toward  US  forces  in  Afghanistan,  US  forces  preemp- 
tively attacked  the  militants  even  before  they  crossed  the  border,  including  striking 
a  compound  one  mile  within  Pakistan  with  missiles.38 

Third,  US  cross-border  operations  now  apparently  include  covert  missions  by  a 
US  joint  special  operations  task  force  likely  consisting  of  Navy  SEALs  and  the 
Army's  Delta  Force39)  in  pursuit  of  targets  in  Pakistan's  tribal  areas — missions  not 
undertaken  in  immediate  response  to  a  cross-border  raid  from  Pakistan.  Such  mis- 
sions reportedly  were  planned  but  not  undertaken  up  until  mid-2008,  due  to  con- 
cerns about  the  likely  success  of  such  missions,  the  effect  on  relations  with  the 
government  of  Pakistan,  and  the  risks  attendant  to  special  forces  being  killed  or 
captured.40  In  July  2008,  however,  President  Bush  reportedly  issued  secret  orders 
for  such  operations  to  occur  even  in  the  absence  of  express  and  prior  Pakistani  gov- 
ernment approval.  According  to  the  New  York  Times,  which  broke  the  story: 

The  new  orders  reflect  concern  about  safe  havens  for  al  Qaeda  and  the  Taliban  inside 
Pakistan,  as  well  as  an  American  view  that  Pakistan  lacks  the  will  and  ability  to  combat 
militants.  They  also  illustrate  lingering  distrust  of  the  Pakistani  military  and 
intelligence  agencies  and  a  belief  that  some  American  operations  had  been 
compromised  once  Pakistanis  were  advised  of  the  details.41 

On  September  3,  2008,  the  first  operation  occurred,  involving  US  Navy  SEALs 
crossing  the  border  on  helicopters,  supported  by  an  AC- 130  gunship,  landing  in 
Angor  Adda  (in  the  South  Waziristan  tribal  agency),  killing  about  two  dozen  sus- 
pected Al  Qaeda  fighters  and  then  returning  to  Afghanistan  by  helicopter.42  Paki- 
stani authorities  strongly  objected  to  the  operation  and  threatened,  if  such  attacks 
continued,  to  cut  off  US  supply  lines  through  Pakistan  to  US  forces  in  landlocked 
Afghanistan.43 

Potential  Legal  Bases  for  US  Cross-Border  Operations 

Article  2(4)  of  the  UN  Charter  provides  that  "[a]ll  Members  shall  refrain  in  their 
international  relations  from  the  threat  or  use  of  force  against  the  territorial  integ- 
rity or  political  independence  of  any  state,  or  in  any  other  manner  inconsistent 
with  the  Purposes  of  the  United  Nations."44  The  three  forms  of  cross-border  (or, 


117 


The  International  Legality  of  US  Military  Cross-Border  Operations 

with  respect  to  drone  aircraft,  potentially  cross-border)  operations  noted  in  the 
prior  section  would  likely  be  regarded  as  violations  of  Article  2(4)  in  the  absence 
of  some  form  of  justification,  for  they  entail  military  personnel  or  weapons  en- 
tering Pakistani  territory  and  inflicting  considerable  violence  upon  persons  pres- 
ent in  Pakistan  and  their  property.  There  are,  however,  four  potential  bases  for 
justifying  these  cross-border  operations  under  international  law:  (A)  consent  by 
the  Pakistani  government,  (B)  authorization  by  the  UN  Security  Council,  (C)  in- 
herent self-defense  against  non-State  actors  operating  from  Pakistan  or  (D)  in- 
herent self-defense  against  Pakistan  itself.  Each  justification  is  briefly  discussed  in 
turn. 

US  Cross-Border  Action  Taken  with  the  Consent  of  Pakistan 

To  the  extent  that  the  government  of  Pakistan  has  consented  to  US  cross-border 
military  operations  from  Afghanistan  into  Pakistan,  that  consent  obviates  any 
question  about  the  legality  of  those  operations  under  international  law.  Standard 
rules  on  State  responsibility  accept  that  conduct  does  not  violate  an  obligation  to  a 
State  if  that  State  has  consented  to  the  conduct,45  and  that  view  applies  in  the  area 
of  the  jus  ad  helium  as  well.46  While  the  legal  justification  for  US  cross-border  oper- 
ations appears  heavily  reliant  on  Pakistani  consent,  the  existence  of  such  consent  to 
the  three  forms  of  US  cross-border  operations  discussed  above  is  not  at  all  clear  or 
may  not  prove  enduring. 

Media  reports,  largely  based  on  off- the- record  comments  by  senior  US  and  Pa- 
kistani officials,  indicate  that  Pakistan's  civilian  and  military  leadership  are  not 
prepared  publicly  to  support  US  cross-border  operations  into  Pakistan.47  Yet  that 
lack  of  public  consent  does  not  mean  that  Pakistani  consent  does  not  exist.  Sur- 
veying the  background  to  US  cross-border  operations,  the  Washington  Post  has 
noted  that  although  Pakistan  "formally  protests  such  actions  as  a  violation  of  its 
sovereignty,  the  Pakistani  government  has  generally  looked  the  other  way  when  the 
CIA  conducted  Predator  missions  or  US  troops  respond  to  cross-border  attacks  by 
the  Taliban."48  There  maybe  internal  documents  or  communications  from  the  Pa- 
kistani government  that  clarify  such  consent  and,  if  so,  the  United  States  will  be  in  a 
strong  position  to  establish  the  legality  of  these  operations  in  whatever  venue  is 
necessary,  assuming  such  information  can  be  made  public.  Certainly  the  Pakistani 
government's  knowledge  of  Predator  drones  being  based  in  Pakistan,  and  its 
knowledge  that  such  aircraft  are  being  used  for  missile  strikes,  presents  a  strong 
picture  of  tacit  consent  so  long  as  such  knowledge  can  be  established.  However,  if 
the  claim  of  the  Pakistani  government's  consent  is  based  solely  on  a  belief  that  the 
Pakistani  government  is  "looking  the  other  way,"  then  establishing  consent  may  be 


118 


Sean  D.  Murphy 


difficult  in  the  face  of  the  various  public  protests  about  US  cross-border  actions 
that  have  been  made  by  Pakistan. 

With  respect  to  the  more  recent  special  operations  missions,  the  New  York 
Times  reported  that  a  "senior  American  official  said  that  the  Pakistani  govern- 
ment had  privately  assented  to  the  general  concept  of  limited  ground  assaults  by 
Special  Operations  forces  against  significant  militant  targets,  but  that  it  did  not 
approve  each  mission."49  Yet  the  public  stance  of  the  Pakistani  government  is  that 
such  operations  are  not  permitted.50  In  the  wake  of  the  September  3,  2008  cross- 
border  operation  by  US  Navy  SEALs,  and  the  adverse  reaction  of  the  Pakistani 
army  and  public  opinion  to  such  raids,  the  Chief  of  the  Army  Staff,  General 
Ashfaq  Parvez  Kayani,  asserted:  "There  is  no  question  of  any  agreement  or  under- 
standing with  the  coalition  forces  whereby  they  are  allowed  to  conduct  operations 
on  our  side  of  the  border."51 

Confusion  about  the  existence  of  consent  stems  in  part  from  the  fractured  na- 
ture of  the  Pakistani  government.52  The  President  of  Pakistan,  Asif  Ali  Zardari,  is 
the  official  head  of  State,  while  Prime  Minister  Syed  Yousaf  Raza  Gillani  is  the  head 
of  government.  The  President  and  his  designees  would  normally  be  looked  to  for 
Pakistani  consent  to  the  use  of  force  by  another  State  in  Pakistan.  Under  Pakistani 
law,  the  President  appoints  the  Chief  of  the  Army  Staff,  currently  General  Ashfaq 
Parvez  Kayani,  an  individual  who  might  be  seen  as  deputized  to  provide  consent 
on  behalf  of  the  President.  Yet,  at  present,  there  is  a  considerable  divide  in  views  be- 
tween President  Zardari  and  the  Army  leadership,  including  over  Pakistani  con- 
sent to  US  cross-border  operations.53  The  Army's  disagreements  with  the  civilian 
leadership  are  not  simply  bureaucratic  maneuvers;  on  several  occasions  the  Army 
has  overthrown  the  President  and  Prime  Minister,  most  recently  in  October  1999 
when  the  Army  deposed  the  elected  Prime  Minister,  Nawaz  Sharif,  in  a  bloodless 
coup.54  Moreover,  as  indicated  above,  with  the  "Talibanization"  of  the  western  re- 
gion, Pakistani  sovereign  power  in  the  FATA  is  almost  de  minimis,  suggesting  a  na- 
scent insurgency  that  already  contests  Islamabad's  authority  in  the  west  and  that 
may  ultimately  contest  it  nationwide.  Depending  on  how  Pakistani  politics  unfold, 
discerning  consent  solely  from  the  President  may  or  may  not  reflect  the  true  source 
of  sovereign  power  in  Pakistan. 

Even  if  sovereign  consent  may  be  discerned,  there  are  disadvantages  to  the 
United  States  in  basing  the  jus  ad  bellum  legality  of  its  operations  solely  on  the  con- 
sent of  the  Pakistani  government.  That  consent,  whether  given  explicitly  or  implic- 
itly, may  be  withdrawn  at  any  time,  unless  it  is  expressed  as  a  legally  binding 
commitment  for  a  specified  period  of  time.  With  the  changes  in  leadership  within 
Pakistan  in  recent  years,  consent  from  the  government  cannot  be  relied  upon  as 
steadfast.  Moreover,  consent  may  always  be  predicated  on  certain  requirements, 

119 


The  International  Legality  of  US  Military  Cross-Border  Operations 

such  as  prior  notification  of  a  given  action  to  the  Pakistani  government,  which  may 
be  difficult  for  time- sensitive  operations  or  where  concerns  exist  about  maintain- 
ing confidentiality.  Since  the  host  government's  consent  only  establishes  the  legal- 
ity of  action  taken  within  the  scope  of  the  consent,  any  US  operations  taken  outside 
that  scope  will  implicate  Article  2(4).  For  example,  if  it  is  true  that  Predator  drone 
strikes  are  only  authorized  for  attacks  against  Al  Qaeda  or  foreign  fighters,  then 
pursuit  of  such  strikes  against  the  Taliban  could  be  regarded  as  a  violation  of  the  jus 
ad  bellum. 

Finally,  while  consent  is  a  valid  justification  when  it  is  received  from  a  de  jure 
government  fully  in  control  of  its  territory,  it  might  become  invalid  if  that  govern- 
ment no  longer  controls  or  only  partially  controls  its  territory.  Traditional  jus  ad 
bellum  doctrine  regards  support  for  a  government  as  permissible  until  such  point 
as  an  internal  insurgency  has  risen  to  the  level  of  being  a  co-belligerent  with  the 
government,  at  which  point  arguably  the  government  is  no  longer  "in  a  position  to 
invite  assistance  in  the  name  of  the  state."55  If  the  apparent  "Talibanization"  of  the 
western  provinces  of  Pakistan  continues  apace,  and  spreads  throughout  Pakistan, 
at  some  point  the  ability  of  the  dejure  government  to  consent  to  US  cross-border 
operations  under  international  law  may  be  regarded  in  the  international  commu- 
nity as  insufficient  to  support  the  legality  of  those  operations.56 

In  short,  consent  of  the  Pakistani  government  is  a  strong  legal  justification  for 
the  use  of  US  Predator  aircraft  in  Pakistan,  so  long  as  Pakistan  continues  to  allow 
them  to  be  launched  from  a  Pakistani  base.  US  cross-border  operations,  however, 
can  only  rely  upon  this  justification  if  authoritative  decisionmakers  in  Pakistan 
have  formally  consented  to  the  type  of  operation  at  issue,  and  so  long  as  that  con- 
sent remains  intact.  The  facts  publicly  available  suggest  Pakistani  tolerance  of,  but 
not  necessarily  formal  consent  to,  US  cross-border  operations  undertaken  in  im- 
mediate response  to  attacks  by  militants  staged  from  Pakistan.  Even  for  these  oper- 
ations, Pakistan  appears  to  expect  notification  and  avoidance  of  actions  that  could 
harm  Pakistani  forces  or  civilians.  By  contrast,  Pakistan  publicly  appears  to  have 
rejected  cross-border  operations  by  US  special  forces  undertaken  deeper  in  Paki- 
stani territory  and  not  in  response  to  an  immediate  raid  from  Pakistan.  Overall, 
given  the  potential  difficulty  in  proving  the  existence  of  Pakistani  consent  to  US 
cross-border  operations,  and  the  possibility  of  such  consent  ending,  other  justifi- 
cations for  US  cross-border  operations  should  be  considered  as  well. 

US  Cross-Border  Action  Authorized  by  the  UN  Security  Council 

Assuming  that  Pakistani  government  consent  cannot  be  found  in  support  of  all  or 
some  of  the  US  cross-border  operations,  an  alternative  basis  for  legality  might  be 
pursued  in  the  form  of  Security  Council  authorization.  When  acting  under  UN 

120 


Sean  D.  Murphy 


Charter  Chapter  VII,  the  Security  Council  is  empowered  to  decide  upon  measures 
necessary  for  maintaining  or  restoring  peace  and  security,  including  measures  that 
are  forcible  in  nature.57  The  Security  Council  has  adopted  several  resolutions  relat- 
ing to  Afghanistan  in  the  aftermath  of  the  attacks  of  9/1 1,  but  none  of  those  resolu- 
tions appear  to  authorize  US  cross-border  operations  into  Pakistan. 

Prior  to  the  overthrow  of  the  de  facto  Afghan  government  of  the  Taliban,  the  Se- 
curity Council  adopted  two  resolutions  that  affirmed,  in  the  context  of  the  9/11  at- 
tacks, the  inherent  right  of  individual  and  collective  self-defense  and  the  need  "to 
combat  by  all  means"  the  "threats  to  international  peace  and  security  caused  by 
terrorist  acts."58  These  resolutions  did  not  constitute  a  Chapter  VII  authorization 
from  the  Security  Council  to  use  force;  rather,  they  were  a  confirmation  of  an  in- 
herent right  of  self-defense  that  preceded  and  was  preserved  through  passage  of  the 
resolutions.59  The  next  subsection  considers  whether  US  cross-border  operations 
into  Pakistan  can  be  justified  on  the  basis  of  individual  or  collective  self-defense. 

After  the  de  facto  Taliban  government  was  overthrown  in  late  2001,  the  United 
Nations  facilitated  negotiations  in  Bonn,  Germany  to  establish  a  framework  and 
timeline  for  the  establishment  of  new  Afghan  political  institutions.  Moreover,  An- 
nex 1  of  the  Bonn  Agreement  provided  that  "the  participants  request  the  assistance 
of  the  international  community  in  helping  the  new  Afghan  authorities  in  the  estab- 
lishment and  training  of  new  Afghan  security  and  armed  forces,"  and  requested 
"the  early  deployment  to  Afghanistan  of  a  United  Nations  mandated  force."60  In 
Resolution  1386,  the  Security  Council  endorsed  the  Bonn  Agreement  and  autho- 
rized the  establishment  of  the  International  Security  Assistance  Force  (ISAF)  "to 
assist  the  Afghan  Interim  Authority  in  the  maintenance  of  security  in  Kabul  and  its 
surrounding  areas,  so  that  the  Afghan  Interim  Authority  as  well  as  the  personnel  of 
the  United  Nations  can  operate  in  a  secure  environment."61  The  resolution  also 
called  upon  "Member  States  participating  in  the  International  Security  Assistance 
Force  to  provide  assistance  to  help  the  Afghan  Interim  Authority  in  the  establish- 
ment and  training  of  new  Afghan  security  and  armed  forces."62  Shortly  thereafter, 
the  interim  Afghan  government  concluded  a  bilateral  agreement  with  the  ISAF 
concerning  the  size  of  the  deployment  and  the  tasks  it  would  undertake.63  In  2002, 
the  Security  Council  adopted  Resolution  1413,  authorizing  "Member  States  partic- 
ipating in  the  International  Security  Assistance  Force  to  take  all  necessary  measures 
to  fulfill  the  mandate  of  the  International  Security  Assistance  Force."64  Subsequent 
resolutions  have  extended  ISAF's  mandate  temporally65  and  geographically,  such 
as  allowing  ISAF 

to  support  the  Afghan  Transitional  Authority  and  its  successors  in  the  maintenance  of 
security  in  areas  of  Afghanistan  outside  of  Kabul  and  its  environs,  so  that  the  Afghan 


121 


The  International  Legality  of  US  Military  Cross-Border  Operations 

Authorities  as  well  as  the  personnel  of  the  United  Nations  and  other  international 
civilian  personnel  engaged,  in  particular,  in  reconstruction  and  humanitarian  efforts, 
can  operate  in  a  secure  environment,  and  to  provide  security  assistance  for  the 
performance  of  other  tasks  in  support  of  the  Bonn  Agreement.66 

From  these  instruments,  it  is  apparent  that  the  ISAF  is  a  multinational  security 
force  authorized  by  the  UN  Security  Council  under  Chapter  VII  of  the  UN  Charter. 
The  ISAF  is  not  a  UN  force  in  the  sense  of  being  funded  by,  and  under  the  command- 
and-control  of,  the  United  Nations;  rather,  it  is  a  coalition  of  self- funding  States 
authorized  by  the  Security  Council  to  engage  in  specified  tasks  in  Afghanistan. 
Though  the  Security  Council  theoretically  could  authorize  the  ISAF  to  engage  in 
cross-border  operations  into  Pakistan,  no  such  authorization  exists  in  any  of  the 
Security  Council  resolutions  either  expressly  or  by  implication.  Indeed,  while  the 
ISAF  sees  its  mission  as  including  efforts  to  defeat  the  threat  of  insurgency  in  Af- 
ghanistan, NATO's  2005  Operational  Plan,  as  revised,  provides  that  ISAF's  mission 
is  the  stabilization  of  Afghanistan,  not  counterterrorism.67 

US  cross-border  operations  are  not  undertaken  through  the  ISAF.  Rather,  such 
operations  occur  as  a  part  of  the  multinational  coalition  of  States  present  in  Af- 
ghanistan for  Operation  Enduring  Freedom  (OEF).  US  forces  in  Afghanistan  for 
OEF  are  deployed  as  Combined  Joint  Task  Force-82  (CJTF-82),  which  is  based  at 
Bagram  Air  Base.  That  task  force  reports  to  the  US-led  Combined  Forces  Command- 
Afghanistan,  which  is  based  in  Kabul.  CJTF-82  operates  and  supervises  a  Com- 
bined Joint  Special  Operations  Task  Force-Afghanistan,  which  consists  of  special 
operations  forces.  Yet  there  is  also  reportedly  an  "Other  Coalition  Forces"  unit  of 
special  operations  forces,  which  does  not  report  to  CJTF-82.  This  latter,  more  se- 
cretive unit  may  be  the  one  responsible  for  the  covert  US  cross-border  missions 
into  Pakistan. 

In  any  event,  all  of  these  US  forces  deployed  for  OEF  are  separate  from  the  US 
forces  deployed  in  support  of  the  UN-mandated  and  NATO-led  ISAF  which,  as 
discussed  above,  is  focused  on  providing  security  in  Kabul  and  its  surrounding  ar- 
eas for  the  Afghan  government,  and  assisting  the  government  in  the  establishment 
and  training  of  Afghan  security  and  armed  forces.  The  ISAF  and  OEF  have  com- 
pletely separate  mandates  and  missions,  with  the  ISAF  focusing  on  a  stabilization 
and  security  mission,  while  OEF  focuses  on  the  counterterrorism  mission.  None  of 
the  Security  Council  resolutions  discussed  above  relate  to  OEF  and  hence  cannot 
serve  as  a  basis  for  a  Security  Council  mandate  for  the  United  States  to  engage  in 
cross-border  operations  into  Pakistan. 


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US  Cross-Border  Action  Taken  in  Self-Defense  against  Non-State  Actors 

A  third  basis  for  finding  US  cross-border  operations  into  Pakistan  permissible 
under  the  jus  ad  bellum  relies  upon  the  United  States'  inherent  right  of  self-defense 
or  its  right  to  engage  in  collective  self-defense  at  the  request  of  Afghanistan.  Article 
51  of  the  UN  Charter  indicates  that  the  prohibition  on  the  use  of  force  embedded 
in  Article  2(4)  may  be  overcome  when  acting  in  self-defense,  since  "[njothing  in 
the  present  Charter  shall  impair  the  inherent  right  of  individual  or  collective  self- 
defence  if  an  armed  attack  occurs  against  a  Member  of  the  United  Nations,  until 
the  Security  Council  has  taken  the  measures  necessary  to  maintain  international 
peace  and  security."68 

In  considering  this  basis,  there  are  several  key  and  perhaps  troubling  questions 
that  arise:  What  was  the  preceding  use  of  force  against  which  the  United  States  is 
defending?  Does  that  preceding  use  of  force  rise  to  the  level  of  an  "armed  attack" 
within  the  meaning  of  UN  Charter  Article  51?  Can  the  United  States  invoke  Article 
51  when  defending  against  the  conduct  of  a  non-State  actor?  Are  the  US  cross- 
border  actions  necessary  and  proportionate  defensive  responses?  Each  question  is 
discussed  in  turn. 

What  Was  the  Preceding  Use  of  Force  against  Which  the  United  States  Is  Defending? 
There  are  two  candidates  for  the  preceding  use  of  force  to  which  the  United  States 
is  responding  in  self-defense.  First,  the  United  States  might  be  seen  today  as  still  de- 
fending against  Al  Qaeda's  attacks  of  9/ 1 1  (as  well  as  perhaps  other  actions  taken  by 
Al  Qaeda  globally  against  the  United  States,  such  as  the  1998  bombing  of  US  em- 
bassies in  Tanzania  and  Kenya  and  the  2000  attack  on  the  USS  Cole  in  Yemen).  If 
the  initial  US  invasion  of  Afghanistan  was  a  permissible  act  of  self-defense  against 
the  perpetrators  of  9/1 1,  one  designed  to  diminish  or  destroy  Al  Qaeda's  network, 
then  cross-border  operations  today  might  be  seen  as  part  of  a  continuous  process 
to  accomplish  that  objective,  albeit  years  later.  There  has  been  no  temporal  inter- 
ruption in  the  deployment  of  US  forces  for  this  purpose,  nor  has  there  been  a  geo- 
graphic interruption  given  that  Al  Qaeda  elements  fled  toward  and  across  the 
Pakistani  border. 

One  complicating  factor,  however,  arises  from  the  use  of  cross-border  operations 
to  diminish  or  destroy  the  Taliban  instead  of  Al  Qaeda.  Even  at  the  time  of  9/ 1 1 , 
there  were  some  doubts  expressed  about  the  right  of  the  United  States  to  defend 
against  the  9/11  attacks  by  using  force  for  the  purpose  of  ousting  and  destroying  the 
Taliban.69  While  selective  attacks  on  the  Taliban  that  were  necessary  to  defend  US 
forces  hunting  down  Al  Qaeda  elements  post-9/1 1  were  squarely  within  the  notion 
of  self-defending  against  Al  Qaeda's  9/11  attacks,  operations  directed  solely  against 
the  Taliban  were  seen  as  more  problematic,  since  the  Taliban  was  not  directly 

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The  International  Legality  of  US  Military  Cross-Border  Operations 

involved  in  the  9/11  attacks,  in  the  sense  of  planning,  funding,  sending  persons  or 
otherwise  sponsoring  those  attacks. 

An  alternative  preceding  act  triggering  a  right  of  US  self-defense  is  the  more  re- 
cent cross-border  raids  into  Afghanistan  by  militants  based  in  Pakistan  (mostly 
Taliban,  but  with  support  from  Al  Qaeda  and  other  foreign  fighters)  to  strike  at  US 
or  coalition  forces,  or  the  government  of  Afghanistan.  This  approach  does  not  em- 
phasize the  attacks  of  9/1 1  but,  rather,  the  contemporary  cross-border  operations 
that  are  harming  coalition  and  Afghan  interests  in  Afghanistan.  So  long  as  Afghani- 
stan has  consented  to  the  presence  of  US  forces  as  a  means  of  assisting  Afghanistan 
in  defending  against  such  attacks,  US  actions  fall  within  the  scope  of  either  individ- 
ual or  collective  self-defense,  though  they  should  be  notified  to  the  UN  Security 
Council  in  accordance  with  UN  Charter  Article  51.  Afghan  President  Hamid 
Karzai  himself  has  asserted  Afghanistan's  right  to  defend  itself  from  such  attacks  by 
crossing  the  border  into  Pakistan  and  destroying  "terrorist  nests."70  Here,  though, 
the  complicating  factor  is  the  converse  of  that  noted  above;  to  the  extent  that  the 
Taliban  is  principally  responsible  for  such  cross-border  operations,  then  it  is  its 
conduct  that  may  be  seen  as  triggering  a  right  of  self-defense  and  it  is  its  conduct 
against  which  defensive  measures  may  be  taken.  Only  to  the  extent  that  Al  Qaeda  is 
engaged  in  the  cross-border  attacks  into  Afghanistan  can  US  defensive  responses 
against  those  attacks  target  Al  Qaeda  elements. 

The  upshot  is  that  the  preceding  acts  at  issue  may  be  a  hybrid.  US  cross-border 
actions  against  Al  Qaeda  in  the  form  of  covert  special  forces  missions  (as  well  as 
Predator  attacks  when  launched  from  Afghanistan)  are  probably  best  viewed  as  a 
continuing  defensive  response  to  the  attacks  of  9/11,  whereas  actions  against 
Taliban  and  other  militants  infiltrating  Afghanistan  are  best  viewed  as  defensive  re- 
sponses against  attacks  occurring  today  on  coalition  forces  in  Afghanistan,  as  well 
as  the  Afghan  government. 

Do  Those  Preceding  Uses  of  Force  Rise  to  the  Level  of  an  "Armed  Attack"  within  the 
Meaning  of  UN  Charter  Article  51  ? 

Article  51,  by  its  terms,  preserves  a  pre-existing  right  of  self  defense  "if  an  armed  at- 
tack occurs."  Scholars  and  States  differ  over  whether  such  language  necessarily  re- 
quires that  an  "armed  attack"  occur  before  the  resort  to  self-defense,71  but 
governments  typically  argue  that  such  an  attack  has  occurred  whenever  they  resort 
to  self-defense.72  As  such,  a  key  question  is  whether  the  preceding  actions  that  jus- 
tify US  cross-border  operations  rise  to  the  level  of  being  an  "armed  attack"  within 
the  meaning  of  Article  51.  In  the  case  concerning  Military  and  Paramilitary  Activ- 
ities in  and  against  Nicaragua  (Nicaragua  v.  United  States  of  America),  the  Interna- 
tional Court  of  Justice  provided  some  guidance  on  this  point.  On  the  one  hand,  a 

124 


Sean  D.  Murphy 


State's  deployment  of  regular  armed  forces  across  a  border,  or  the  sending  by  a 
State  of  "armed  bands,  groups,  irregulars  or  mercenaries  which  carry  out  acts  of 
armed  force,"  can  constitute  an  armed  attack;  on  the  other  hand,  a  State's  "assis- 
tance to  rebels  in  the  form  of  the  provision  of  weapons  or  logistical  or  other  sup- 
port" does  not  constitute  an  armed  attack.73  Hence,  there  is  a  sliding  scale  by  which 
one  assesses  the  level  of  intrusiveness  and  gravity  of  the  act  at  issue  to  determine 
whether  it  rises  to  a  level  of  "armed  attack"  that  triggers  a  right  of  self-defense  un- 
der Article  51. 

With  respect  to  the  preceding  act  of  Al  Qaeda's  conduct  on  9/ 1 1 ,  there  should  be 
little  doubt  that  such  coercion  constitutes  an  "armed  attack,"  given  the  scale  of  de- 
struction and  loss  of  life  that  occurred,  as  well  as  the  reactions  of  the  United  States 
and  relevant  international  organizations,  all  of  which  characterized  the  conduct  as 
attacks  triggering  a  right  of  self-defense.74 

With  respect  to  the  preceding  act  of  Taliban  cross-border  operations  into  Af- 
ghanistan, the  gravity  of  those  actions  to  date  are  of  a  much  different  character,  in 
terms  of  the  loss  of  life  and  destruction.  Nevertheless,  as  indicated  previously,  the 
attacks  are  occurring  at  a  rate  of  from  twenty  a  month  in  March  2007  to  fifty- 
three  a  month  in  April  2008,  causing  considerable  injury  and  deaths  to  Afghans 
and  the  coalition  forces  that  are  in  Afghanistan  with  Afghan  consent.  While  any 
given  cross-border  raid  into  Afghanistan  by  militants  from  Pakistan  might  be  said 
to  fall  below  the  threshold  of  an  armed  attack,  and  instead  constitute  merely  a 
"frontier  incident,"75  the  cumulative  effect  of  all  these  cross-border  attacks  by 
militants  would  likely  be  seen  as  constituting  an  "armed  attack"  within  the  mean- 
ing of  Article  51. 

Can  the  United  States  Invoke  Article  51  When  Defending  against  the  Conduct  of  a 
Non-State  Actor? 

Article  2(4)  prohibits  uses  of  force  by  one  State  against  another  State.  Article  51  is 
less  clear  in  speaking  solely  to  conduct  between  two  States,  since  its  language  sim- 
ply speaks  of  a  UN  member's  inherent  right  of  self-defense  against  an  armed  attack, 
without  indicating  whether  it  is  a  State  that  must  be  undertaking  that  attack.  Even 
so,  it  might  be  argued  that  the  Charter  was  designed  solely  to  speak  to  rights  and 
obligations  as  between  States,  and  any  act  of  self-defense  must  be  in  response  to  an 
armed  attack  committed  by  or  attributable  to  another  State.76  In  the  Military  and 
Paramilitary  Activities  case,  the  International  Court  of  Justice  regarded  attribution 
of  non-State  actor  conduct  to  a  State  as  the  critical  factor  when  weighing  the 
permissibility  of  defensive  action  against  that  State,  but  did  not  directly  address  the 
issue  of  defensive  action  against  the  non-State  actor  itself.77  However,  in  the  Advisory 
Opinion  on  the  Israeli  Wall,  the  Court — without  much  analysis — rejected  Israel's 

125 


The  International  Legality  of  US  Military  Cross-Border  Operations 

claim  that  it  was  acting  in  self-defense  against  attacks  by  terrorist  groups.  The 
Court  opined  that  Israel  could  not  be  acting  in  self-defense  under  Article  51  be- 
cause ( 1 )  Israel  had  not  claimed  that  the  terrorist  attacks  at  issue  were  imputable  to 
a  foreign  State  and  (2)  those  attacks  were  not  transnational  in  nature,  having  oc- 
curred wholly  within  territory  occupied  by  Israel.78 

If  the  advisory  opinion  is  correctly  interpreting  the  jus  ad  helium,  then  it  may 
not  be  possible  to  engage  in  Article  5 1  self-defense  against  a  non-State  actor;  rather, 
self-defense  is  reserved  for  actions  against  another  State,  perhaps  in  situations 
where  the  acts  of  the  non-State  actor  have  been  imputed  to  that  other  State.  The 
Court's  opinion,  however,  has  been  subjected  to  considerable  criticism,  much  of 
which  notes  the  fact  that  the  global  community  (including  the  Security  Council, 
NATO,  and  the  Organization  of  American  States  (OAS))  appears  to  have  regarded 
the  attacks  by  Al  Qaeda  of  9/1 1  as  justifying  a  response  in  self-defense.79  Such  criti- 
cisms may  explain  a  possible  retreat  by  the  Court  in  its  2005  case  concerning  Armed 
Activities  on  the  Territory  of  the  Congo.  In  that  case,  rather  than  repeat  its  legal  posi- 
tion from  the  advisory  opinion,  the  Court  stated  that,  given  the  facts  at  issue  in  the 
case,  there  was  "no  need  to  respond  to  the  contentions  of  the  Parties  as  to  whether 
and  under  what  conditions  contemporary  international  law  provides  for  a  right 
of  self-defense  against  large-scale  attacks  by  irregular  forces."80  Both  Judges 
Kooijmans  and  Simma  stated  in  separate  opinions  that,  if  the  Court  still  views  Arti- 
cle 51  as  restricted  to  self-defense  only  against  an  attack  by  another  State,  then  the 
Court  is  out  of  step  with  both  the  Security  Council  and  State  practice.81 

While  this  area  of  the  law  remains  somewhat  uncertain,  the  dominant  trend  in 
contemporary  interstate  relations  seems  to  favor  the  view  that  States  accept  or  at 
least  tolerate  acts  of  self-defense  against  a  non-State  actor.  Turkey  has  engaged  in 
various  cross-border  operations  against  the  Kurdish  separatist  guerrilla  organiza- 
tion known  as  the  Kurdistan  Workers'  Party,82  without  being  condemned  by  the 
Security  Council,  General  Assembly,  or  International  Court.  In  early  2008,  Colom- 
bian military  forces  bombed  and  crossed  into  Ecuador  to  attack  guerrillas  of  the 
Revolutionary  Armed  Forces  of  Columbia,  which  is  regarded  by  Colombia  as  a  ter- 
rorist and  drug-trafficking  organization.  Again,  none  of  the  principal  organs  of  the 
United  Nations  criticized  the  action;  while  the  Organization  of  American  States 
adopted  a  resolution  declaring  the  Colombian  raid  to  be  a  violation  of  Ecuador's 
sovereignty,  the  OAS  stopped  short  of  expressly  condemning  Colombia.83  Israel  in 
the  summer  of  2006  sent  military  forces  into,  and  bombed  portions  of,  southern 
Lebanon  in  an  effort  to  strike  at  the  Hezbollah  movement,  which  has  operated  out 
of  Lebanon  to  attack  and  kill  Israeli  nationals.84  Similarly,  in  early  2008,  Israel 
launched  a  major  military  ground  operation,  as  well  as  airstrikes,  against  Hamas 
fighters  in  the  Gaza  Strip.85  In  neither  instance  did  the  principal  UN  organs  declare 

126 


Sean  D.  Murphy 


the  conduct  unlawful  self-defense.  The  United  States  undertook  an  airstrike  inside 
Syria  in  October  2008  reportedly  to  stem  the  flow  of  foreign  fighters  and  weapons 
from  that  country  into  Iraq.86  As  is  the  case  for  most  customary  law  on  the  jus  ad 
bellum  norms,  it  is  not  possible  to  demonstrate  through  widespread  and  systematic 
State  practice  that  the  concept  of  self-defense  embraces  action  against  non-State  ac- 
tors, but  the  better  view  appears  to  be  that  it  does. 

Are  the  US  Cross-Border  Actions  Necessary  and  Proportionate  Defensive  Responses? 
Although  Article  51  of  the  UN  Charter  does  not  expressly  require  that  self-defense 
be  undertaken  only  as  necessary  and  proportionate  to  the  threat  faced,  those  con- 
straints present  in  customary  international  law  on  the  use  of  force  have  been 
deemed  applicable  to  the  post-Charter  jus  ad  bellum.  As  the  International  Court  of 
Justice  has  stated: 

The  submission  of  the  exercise  of  the  right  of  self-defence  to  the  conditions  of  necessity 
and  proportionality  is  a  rule  of  customary  international  law.  As  the  Court  stated  in  the 
case  concerning  Military  and  Paramilitary  Activities  in  and  against  Nicaragua 
(Nicaragua  v.  United  States  of  America):  there  is  a  "specific  rule  whereby  self-defence 
would  warrant  only  measures  which  are  proportional  to  the  armed  attack  and 
necessary  to  respond  to  it,  a  rule  well  established  in  customary  international  law"  (I.  C.J. 
Reports  1986,  p.  94,  para.  176).  This  dual  condition  applies  equally  to  Article  51  of  the 
Charter,  whatever  the  means  of  force  employed.87 

In  considering  whether  force  is  "necessary,"  the  International  Court  of  Justice 
and  scholars  typically  first  consider  whether  there  are  peaceful  alternatives  to  self- 
defense,  such  as  pursuing  available  diplomatic  avenues.88  This  might  entail  deter- 
mining whether  the  attacker  has  been  asked  to  desist  from  further  attacks  and  to 
make  reparation  for  injuries  it  has  caused.  Assuming  that  no  reasonable  alternative 
means  exist,  the  concept  of  "necessity"  focuses  on  the  nature  of  the  target  pursued 
by  the  defender;  where  the  target  is  the  source  (or  one  of  the  sources)  of  the  threat 
to  the  defender,  it  is  considered  necessary  defense  to  attack  that  target.  "Necessity" 
does  not  require  a  defender  to  limit  itself  to  actions  that  merely  repel  an  initial  at- 
tack; a  State  may  use  force  in  self-defense  to  remove  a  continuing  threat  to  future 
security,89  such  as  pursuing  action  against  Japan  in  the  1940s  until  its  militarist  re- 
gime had  capitulated.  An  example  of  a  lack  of  necessity  may  be  seen  in  the  Interna- 
tional Court  of  Justice's  Oil  Platforms  case,  where  the  Court  found  that  the  United 
States  did  not  complain  to  Iran  about  the  military  activities  allegedly  undertaken 
from  the  platforms,  nor  prove  that  the  platforms  were  the  source  of  the  threat  to 
the  United  States  in  the  Gulf  such  that  attacking  them  was  necessary  for  eliminat- 
ing that  threat.90 

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The  International  Legality  of  US  Military  Cross-Border  Operations 

"Proportionality"  does  not  require  that  the  force  be  a  mirror  image  of  the  initial 
attack,  or  that  the  defensive  actions  be  restricted  to  the  particular  geographic  loca- 
tion in  which  the  initial  attack  occurred.  Rather  than  focus  on  the  form,  substance 
or  strength  of  the  initial  attack,  proportionality  calls  for  assessing  the  result  sought 
for  eliminating  that  threat  and  the  means  being  used  to  achieve  that  result.91  As 
suggested  by  Professor  Roberto  Ago,  a  rapporteur  for  the  International  Law  Com- 
mission on  the  rules  of  State  responsibility  and  later  judge  on  the  International 
Court  of  Justice,  "[I]n  the  case  of  action  taken  for  the  specific  purpose  of  halting 
and  repelling  an  armed  attack,  this  does  not  mean  that  the  action  should  be  more 
or  less  commensurate  with  the  attack.  Its  lawfulness  cannot  be  measured  except  by 
its  capacity  for  achieving  the  desired  result."92  Such  reasoning  is  reflected  in  the  na- 
tional military  manuals  adopted  by  many  States;  for  instance,  the  US  Commander's 
Handbook  on  the  Law  of  Naval  Operations  indicates  that  proportionality  imposes  a 
"requirement  that  the  use  of  force  be  in  all  circumstances  limited  in  intensity,  du- 
ration, and  scope  to  that  which  is  reasonably  required  to  counter  the  attack  or 
threat  of  attack  and  to  ensure  the  continued  safety  of  U.S.  forces."93 

In  the  Oil  Platforms  case,  the  International  Court  signaled  that,  if  it  were  proved 
that  a  shore-based  missile  had  been  launched  by  Iran  against  a  US  flag  vessel,  a  pro- 
portionate defensive  response  could  include  destroying  an  Iranian  oil  platform 
elsewhere  in  the  Gulf,  so  long  as  the  platform  was  shown  to  be  engaged  in  assisting 
attacks  on  US  vessels  in  the  Gulf.  In  other  words,  the  Court  found  that  a  propor- 
tionate defensive  response  to  a  missile  attack  on  a  vessel  was  not  limited  to  inflic- 
tion of  a  missile  attack  in  response,  nor  limited  to  the  targeting  of  the  facility  from 
which  the  missile  was  launched.  At  the  same  time,  the  Court  stated  that,  in  a  situa- 
tion where  the  attack  consists  of  the  single  mining  of  a  ship  (which  was  damaged 
but  not  sunk),  a  defensive  response  that  destroys  numerous  vessels  and  aircraft  of 
the  attacker,  as  well  as  oil  platforms,  is  disproportionate  in  scale  to  the  threat.94 
While  one  might  argue  about  the  Court's  treatment  of  the  facts  in  that  case,  the 
thrust  of  the  Court's  dicta  was  to  consider  the  nature  of  the  threat  being  faced  by 
the  defender  and  whether  the  defensive  conduct,  by  its  nature  and  scale,  was  de- 
signed to  eliminate  that  threat.  Similarly,  in  Armed  Activities  on  the  Territory  of  the 
Congo,  the  Court  indicated  that  the  armed  "taking  of  airports  and  towns  many 
hundreds  of  kilometers  from  [the  defending  State's]  border  would  not  seem  pro- 
portionate to  the  series  of  transborder  attacks  it  claimed  had  given  rise  to  the  right 
of  self-defence,  nor  to  be  necessary  to  that  end."95 

In  considering  the  necessity  and  proportionality  of  US  cross-border  operations 
against  Pakistan,  it  is  important  to  focus  on  the  two  preceding  threats  that  appear 
to  have  prompted  those  operations:  the  attacks  of  9/1 1  and  the  more  recent  cross- 
border  attacks  from  Pakistan  into  Afghanistan. 

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Sean  D.  Murphy 


First,  the  Al  Qaeda  attacks  of  9/11  serve  as  a  preceding  "armed  attack"  against 
the  United  States  triggering  a  right  of  self-defense  in  the  form  of  operations  de- 
signed to  remove  the  threat  of  Al  Qaeda.  Given  that  for  years  the  United  States  had 
demanded  that  Al  Qaeda  desist  from  its  activities  and  had  sought  extradition  of  Bin 
Laden  and  his  lieutenants  from  Afghanistan,  and  given  that  the  9/11  attacks  were 
attributable  to  planning,  training  and  funding  emanating  from  Afghanistan,96  the 
defensive  response  taken  against  Al  Qaeda  personnel  and  camps  in  Afghanistan  is 
properly  regarded  as  both  necessary  and  proportionate.97 

Yet  most  international  observers  or  courts  would  likely  find  that  the  same  is  not 
true  with  respect  to  the  ability  of  the  United  States  to  pursue  defensive  actions 
against  Al  Qaeda  across  a  national  boundary  into  Pakistan  or  any  other  country. 
Here  the  use  of  force  in  self-defense  in  response  to  the  attacks  of  9/1 1  would  likely 
be  seen  as  both  unnecessary  and  disproportionate,  principally  because  Pakistan  is  a 
third  country  that  in  no  sense  harbored  Al  Qaeda  elements  at  the  time  of  9/ 1 1 .  Such 
use  of  force  is  unnecessary  given  Pakistan's  stated  willingness  to  ally  itself  with  the 
United  States  in  its  counterterrorism  efforts  to  strike  at  Al  Qaeda.  The  United 
States  no  doubt  disagrees  and  distrusts  aspects  of  Pakistani  policy  on  how  best  to 
engage  in  counterterrorism;  yet  those  disagreements  alone  do  not  provide  the  legal 
justification  for  the  United  States  to  engage  in  unilateral  uses  of  force  in  Pakistan. 
While  working  in  conjunction  with  the  Pakistani  government  is  no  doubt  a  diffi- 
cult diplomatic  challenge,  most  observers  would  likely  say  that  it  is  an  available  av- 
enue that  makes  the  unilateral  resort  to  force  unnecessary.98 

For  similar  reasons,  the  unilateral  use  of  force  to  strike  at  Al  Qaeda  in  Pakistan  in 
response  to  the  9/11  attacks  would  be  found  disproportionate,  in  that  the  spatial 
and  temporal  displacement  of  the  threat  of  Al  Qaeda  to  a  different  nation  intro- 
duces important  competing  values,  to  wit  the  territorial  integrity  and  political  in- 
dependence of  a  nation  that  did  not  knowingly  support,  sponsor  or  tolerate  Al 
Qaeda  in  the  years  preceding  9/11.  The  violence  that  invariably  accompanies  uni- 
lateral uses  of  force,  even  those  taken  in  self-defense,  intrudes  severely  into  the  val- 
ues of  peace  and  stability  to  which  Pakistan  is  entitled  under  the  jus  ad  bellum,  and 
does  so  without  justification  when  the  targeted  State  bears  no  responsibility  for  the 
initial  armed  attack  against  which  defensive  action  is  being  deployed.99  Certainly  if 
Osama  Bin  Laden  were  to  turn  up  in  a  nation  such  as  Bulgaria  or  Tunisia,  that  cir- 
cumstance would  introduce  multiple  new  variables  for  any  proportionality  analy- 
sis, such  that  the  United  States  could  not  rely  on  the  same  analysis  that  justified 
intervening  in  Afghanistan  in  2001.  The  same  holds  true  for  Pakistan,  notwith- 
standing its  existence  as  a  neighbor  to  Afghanistan. 

A  final  consideration  is  that,  arguably,  the  threat  to  the  United  States  from  Al 
Qaeda  itself  has  changed  since  9/11;  the  Al  Qaeda  now  in  Pakistan  is  a  considerably 

129 


The  International  Legality  of  US  Military  Cross-Border  Operations 

reduced  and  weakened  entity,  one  forced  to  hide  out  in  the  hills,  with  difficulty  in 
sustaining  the  same  infrastructure  it  operated  in  Afghanistan.  Some  observers  see 
Al  Qaeda  as  having  mutated  into  an  almost  headless  hydra,  such  that  the  real  threat 
of  attacks  to  the  United  States  now  largely  lies  in  numerous  cells  located  world- 
wide.100 If  so,  then  the  elements  of  Al  Qaeda  present  in  Afghanistan,  including 
Osama  Bin  Laden,  remain  dangerous,  but  may  not  be  seen  as  operationally  threat- 
ening the  United  States  in  the  same  manner  as  they  did  in  2001.  As  such,  the  defen- 
sive action  that  may  be  taken  against  those  elements,  in  order  to  be  proportionate, 
could  be  viewed  as  of  a  lesser  magnitude  than  what  was  regarded  as  permissible  in 
the  immediate  aftermath  of  9/11.  Not  all  analysts,  however,  see  the  threat  of  Al 
Qaeda  as  having  changed  so  significantly  since  9/11.  While  there  may  be  "a  low- 
level  probability  that  al  Qaeda  will  be  able  to  attack  the  United  States  in  the  next 
five  years,"  Al  Qaeda  even  based  along  the  Afghan-Pakistani  border  is  still  able  to 
train  personnel  for  and  direct  attacks  abroad,  such  as  the  July  2005  London  bomb- 
ings, the  foiled  August  2006  plot  in  the  United  Kingdom  to  blow  up  US  airliners 
with  liquid  explosives  and  Al  Qaeda  attacks  in  Iraq.101 

Could  circumstances  change  in  Pakistan  that  might  generate  a  consensus  favor- 
able to  the  unilateral  resort  to  armed  force  in  Pakistan  against  Al  Qaeda  because  the 
latter  represents  a  broad  threat  to  US  national  security?  Certainly  if  the  same  cir- 
cumstances arose  as  existed  at  the  time  of  9/1 1 — with  a  radical  Islamic  government 
in  Islamabad,  one  hostile  to  the  United  States  and  with  close  connections  to  Al 
Qaeda,  resulting  in  a  major  Al  Qaeda  attack  on  the  United  States — then  the  unilat- 
eral use  of  force  in  self-defense  against  Al  Qaeda  in  Pakistan  would  likely  be  seen  as 
justified,  just  as  it  was  in  Afghanistan  in  2001.  A  more  difficult  question  might  be 
whether  such  force  would  be  justified  in  the  period  prior  to  Al  Qaeda  in  Pakistan's 
attack  on  the  United  States,  perhaps  due  to  highly  credible  information  concerning 
an  imminent  attack.  At  present,  however,  Pakistan  simply  is  not  like  Afghanistan 
under  the  Taliban  in  2001,  and  it  is  hoped  that  with  proper  support  from  the 
United  States  and  other  allies,  and  avoidance  of  tactics  that  fuel  militancy,  Pakistan 
will  not  descend  to  that  level. 

The  second  type  of  preceding  armed  attack  are  the  cross-border  raids  by  mili- 
tants from  Pakistan,  principally  Taliban  but  with  support  from  Al  Qaeda,  against 
US  and  coalition  forces  and  the  Afghan  government  in  Afghanistan.  Here  the  jus  ad 
helium  requirements  of  necessity  and  proportionality  do  not  lend  themselves  to 
broad  conclusions,  but  do  provide  guidance  for  analyzing  confrontations  as  they 
arise  along  the  border.  For  example,  the  necessity  of  US  forces  reacting  to  incur- 
sions by  militants  from  Afghanistan  will  turn  in  part  on  whether  the  United  States 
has  pursued  and  continues  to  pursue  all  avenues  possible  to  obtain  Pakistani  gov- 
ernment support  for  preventing  such  incursions.  Responses  by  US  forces  to 

130 


Sean  D.  Murphy 


militant  incursions  will  be  regarded  as  necessary  if  it  is  evident  that  Pakistani  au- 
thorities are  unwilling  or  unable  to  stem  such  incursions  from  their  territory.  Fur- 
ther, responses  by  US  forces  that  react  to  an  actual  raid  by  militants  into 
Afghanistan  likely  will  be  regarded  as  more  necessary  than  those  that  act  to  inter- 
dict anticipated  incursions,  given  that  there  is  always  uncertainty  as  to  whether  the 
anticipated  event  will  actually  occur.  Responses  by  US  forces  that  react  to  incur- 
sions by  directly  and  immediately  targeting  those  militants,  using  force  of  a  compa- 
rable nature  and  scale,  likely  will  be  regarded  as  more  proportionate  than  responses 
that  target  other  militants  in  other  places  and  times,  using  force  of  considerably 
greater  magnitude,  though  even  the  latter  can  be  proportionate  if  designed  to  re- 
move the  overall  threat  of  cross-border  incursions  from  Pakistan. 

A  perhaps  harder  question  concerns  the  necessity  and  proportionality  of  strik- 
ing at  Al  Qaeda  officials,  camps  or  convoys  as  a  response  to  Al  Qaeda's  support  for 
militant  cross-border  raids  into  Afghanistan.  Such  attacks  are  more  removed  tem- 
porally and  spatially  from  the  cross-border  raids  by  militants.  Yet  if  Al  Qaeda  is 
providing  training  and  other  support  for  such  raids,  and  in  some  instances  even 
commanding  them,  then  most  observers  would  likely  regard  it  as  proportionate  to 
the  threat  posed  to  respond  by  attacking  persons  and  entities  behind-the-lines  di- 
rectly associated  with  the  raids.  The  facts  of  Al  Qaeda's  association  with  these 
cross-border  raids  would  have  to  be  well  understood  and  the  acts  of  self-defense 
by  the  United  States  against  Al  Qaeda,  in  order  to  be  proportionate,  would  need  to 
be  designed  to  prevent  that  association.  As  for  whether  such  actions  are  necessary, 
they  are  not  necessary  in  the  sense  of  providing  immediate  defense  to  US  forces  in 
Afghanistan  who  are  under  attack,  but  they  are  necessary  if  it  can  be  shown  that,  in 
the  absence  of  such  actions,  the  cross-border  raids  from  Pakistan  will  continue. 

The  distinction  drawn  here  may  seem  meaningless,  if  it  allows  the  United  States 
to  strike  at  Al  Qaeda  not  for  purposes  of  responding  to  9/1 1,  but  instead  for  pur- 
poses of  responding  to  Al  Qaeda's  association  with  cross-border  raids  into  Afghan- 
istan. Yet  the  point  is  that  while  jus  ad  bellum  requirements  of  proportionality  and 
necessity  do  not  preclude  US  cross-border  operations  in  response  to  raids  by  mil- 
itants from  Pakistan,  nor  attacks  on  Al  Qaeda  elements  in  support  of  those  raids, 
those  requirements  will  likely  be  regarded  as  conditioning  the  manner  in  which  the 
US  operations  may  be  conducted.  Rather  than  testing  the  necessity  and  propor- 
tionality of  US  operations  against  the  threat  posed  by  Al  Qaeda  from  its  attacks  of 
9/11,  they  must  be  tested  against  the  threat  posed  by  Al  Qaeda  in  its  association 
with  the  cross-border  raids,  which,  depending  on  the  facts,  can  lead  to  considerable 
differences  in  the  scope  and  intensity  of  US  measures  that  may  be  undertaken. 


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The  International  Legality  of  US  Military  Cross-Border  Operations 

US  Cross-Border  Action  Taken  in  Self-Defense  against  Pakistan 

At  present,  the  United  States  has  not  regarded  Pakistan  itself  as  posing  a  threat  to 
the  security  of  the  United  States,  but  this  may  change  in  the  future.  As  discussed 
above,  while  the  Pakistani  government's  relationship  with  militant  actors  in  the 
western  part  of  Pakistan  is  obscure,  it  is  reasonably  clear  that  Pakistan's  interests 
and  objectives  are  not  fully  synchronized  with  those  of  the  United  States.  Though 
Pakistani  officials  seem  to  have  no  particular  sympathy  for  Al  Qaeda,  the  same  is 
not  uniformly  true  with  respect  to  Tehrik-e-Taliban  Pakistan.  Over  time,  Paki- 
stan's tolerance  if  not  support  for  Tehrik-e-Taliban  Pakistan  may  lead  to  some 
level  of  indirect  support  for  Al  Qaeda,  which  would  place  Pakistan  at  considerable 
odds  with  US  interests. 

The  jus  ad  bellum  disfavors  action  taken  in  self-defense  against  a  government 
that  is  simply  associated  with  a  malfeasant  non-State  actor.  The  lesson  of  the  Nica- 
ragua case  is  that  when  a  State  simply  harbors  or  even  funds  a  bad  actor,  and  that 
bad  actor  engages  in  an  act  of  extreme  violence  against  another  State,  the  first  State 
is  not  viewed  as  itself  having  committed  an  armed  attack  against  the  attacked  State. 
Rules  of  State  responsibility  on  the  attribution  of  conduct  to  a  State  would  require 
the  host  State  itself  to  order  the  bad  actor  to  engage  in  the  violent  conduct,  to  em- 
power the  bad  actor  to  act  on  the  State's  behalf,  to  endorse  the  violent  conduct,  or 
perhaps  to  fail  to  prevent  the  violent  conduct  knowing  that  it  was  about  to  happen 
and  having  the  means  to  prevent  it.102  As  such,  imputing  the  armed  attacks  of  Al 
Qaeda  or  of  the  Taliban  as  being  armed  attacks  of  Pakistan  would  be  a  significant 
leap,  at  least  in  the  absence  of  far  greater  connections  between  the  Pakistani  gov- 
ernment and  those  militants  than  is  presently  understood  to  exist. 

Conclusion 

To  date,  US  cross-border  operations  from  Afghanistan  into  Pakistan  have  taken 
three  forms:  the  use  of  Predator  drones  to  target  Al  Qaeda  fighters  (although  such 
drones  may  be  launched  solely  from  within  Pakistan);  the  "hot  pursuit"  of  mili- 
tants who  engaged  in  raids  from  Pakistan  against  US  and  allied  forces  in  Afghani- 
stan, as  well  as  the  Afghan  government;  and  the  deployment  of  special  operations 
forces  into  Pakistan  as  a  means  of  striking  at  Al  Qaeda. 

These  types  of  cross-border  operations  clearly  implicate  the  jus  ad  bellum,  in 
that  they  entail  one  State  projecting  highly  coercive  military  force  into  another 
State.  Arguably  Pakistan  has  consented  to  at  least  some  of  these  types  of  cross-border 
operations,  but  that  consent  is  poorly  documented,  suffers  from  the  conflicting 
and  diffuse  sources  of  authority  within  the  Pakistani  government,  and  ultimately 
may  not  endure  given  the  vicissitudes  of  Pakistani  domestic  politics.  As  such, 

132 


Sean  D.  Murphy 


though  consent  is  a  powerful  and  useful  basis  for  supporting  the  legality  of  US 
cross-border  operations,  other  justifications  should  be  considered  as  well. 

Assuming  Pakistani  consent  is  lacking,  other  justifications  for  US  cross-border 
operations  must  be  considered.  The  UN  Security  Council  has  on  several  occasions 
addressed  the  legality  of  foreign  forces  in  Afghanistan.  Yet  the  Security  Council's 
Chapter  VII  resolutions  are  best  seen  as  either  authorizing  the  presence  of  a  multi- 
national force  designed  to  stabilize  Afghanistan  (without  having  as  its  mission 
counterterrorism  operations,  let  alone  operations  outside  Afghanistan),  or  simply 
recognizing  the  inherent  right  of  self-defense  of  the  United  States  and  its  allies.  The 
inherent  right  of  self-defense  (individual  and  collective)  does  justify  US  cross-border 
operations  that  respond  to  raids  by  militants  from  Pakistan  into  Afghanistan,  so 
long  as  the  US  operations  remain  necessary  and  proportionate  to  the  threat  of 
those  raids,  and  so  long  as  the  Afghan  government  consents  to  the  presence  of  US 
forces.  Such  self-defense  would  also  support  unilateral  uses  of  US  force  against  Al 
Qaeda  in  Pakistan,  in  the  form  of  either  covert  operations  by  special  forces  units  or 
the  launching  of  Predators  from  Afghanistan  to  strike  at  targets  in  Pakistan,  so  long 
as  it  can  be  shown  that  those  Al  Qaeda  targets  are  ones  that  are  supporting  the 
cross-border  raids  into  Pakistan,  and  so  long  as  Pakistan  is  unwilling  or  unable  to 
prevent  Al  Qaeda's  support  for  those  raids. 

A  broader  right  of  self-defense  against  Al  Qaeda  targets  in  Pakistan  based  on  the 
attacks  of  9/1 1,  however,  is  far  more  problematic,  since  the  requirements  of  neces- 
sity and  proportionality  likely  preclude  unilateral  uses  of  force  against  a  third  State 
that  was  not  implicated  in  those  attacks.  In  general,  the  jus  ad  bellum  recognizes 
important  rights  of  a  defending  State  to  maintain  its  security  against  the  violence  of 
a  non-State  actor,  but  those  values  must  coexist  with  the  rights  of  other  States  to 
their  own  security,  rights  that  are  not  lost  simply  because  the  remnants  of  a  danger- 
ous non-State  actor  turn  up  on  their  territory.  While  circumstances  may  change  in 
the  future  that  could  justify  unilateral  uses  of  US  force  against  Pakistan  for  the 
broader  threat  Al  Qaeda  poses  to  the  United  States,  the  jus  ad  bellum  at  present  re- 
quires the  United  States,  when  pursuing  that  objective,  to  cooperate  with  the  gov- 
ernment of  Pakistan  in  finding  and  neutralizing  Al  Qaeda,  not  launch  unilateral 
attacks  through  covert  missions  and  missile  strikes  by  the  United  States  without 
Pakistani  consent. 

Notes 

1.  See  Congressional  Research  Service,  Pakistan-U.S.  Relations  24  (Aug.  25, 2008),  available 
at  http://www.fas.org/sgp/crs/row/RL33498.pdf  [hereinafter  "CRS  Report"];  Ann  Scott  Tyson, 
Gates  Is  Pessimistic  on  Pakistani  Support,  WASHINGTON  POST,  Sept.  24,  2008,  at  A16  (reporting 
comments  of  Senators  Carl  Levin  and  John  Warner). 

133 


The  International  Legality  of  US  Military  Cross-Border  Operations 

2.  See  Sean  D.  Naylor,  Spec  Ops  Raids  Into  Pakistan  Halted,  NAVY  TIMES,  Sept.  29,  2008. 

3.  See  Polly  Nayak,  The  Impact  of  Pakistan  s  and  Bangladesh 's  National  Strategies  on  U.S.  In- 
terests, in  Strategic  Asia  2008-09:  Challenges  and  Choices  297,  318-20  (Ashley  J.  Tellis, 
Merch  Kuo  &  Andrew  Marble  eds.,  2008). 

4.  For  instance,  Pakistan  might  invoke  against  the  United  States  the  1959  bilateral  Treaty  of 
Friendship  and  Commerce,  U.S.-Pak.,  Nov.  12, 1959, 12  U.S.T.  110,  which  provides  for  Interna- 
tional Court  of  Justice  jurisdiction  when  disputes  arise.  Iran  and  Nicaragua  have  both  invoked 
similar  treaties  against  the  United  States  in  response  to  US  military  or  paramilitary  operations. 

5.  See  Statute  of  the  International  Criminal  Court,  July  17,  1998,  2187  U.N.T.S.  90. 

6.  The  exact  mechanism  for  applying  the  crime  of  aggression  in  a  given  circumstance  is  not 
yet  known,  though  ICC  jurisdiction  might  be  triggered  based  on  decision  making  at  the  ICC  it- 
self (without  affirmative  action  at  the  Security  Council)  in  circumstances  where  the  alleged  ag- 
gression is  undertaken  from  or  against  a  party  to  the  Rome  Statute.  At  present,  Afghanistan  is  a 
party  to  the  Rome  Statute,  while  the  United  States  and  Pakistan  are  not.  See  International  Crimi- 
nal Court,  Assembly  of  States  Parties,  available  at  http://www.icc-cpi.int/asp/statesparties.html. 

7.  See  PERCY  SYKES,  SIR  MORTIMER  DURAND  200-17  (1956);  MARTIN  EWANS,  AFGHANI- 
STAN: A  NEW  HISTORY  106-07  (2002). 

8.  See  Owen  Bennett  Jones,  Pakistan:  Eye  of  the  Storm  137  (2003)  ("Ever  since  parti- 
tion, Kabul  has  argued  that  the  Durand  Line  was  never  meant  to  be  an  international  boundary 
and  has  complained  that  it  deprived  Afghanistan  of  territory  that  had  been  historically  under  its 
control"). 

9.  For  a  more  detailed  discussion  of  these  points  and  the  history  of  the  border,  see  Barnett 
R.  Rubin  &  Abubakar  Siddique,  Resolving  the  Pakistan-Afghanistan  Stalemate,  US  Institute  of 
Peace  Spec.  Rep.  176  (Oct.  2006),  available  at  http://www.usip.org/pubs/specialreports/srl76 
.html. 

10.  See  RIZWAN  HUSSAIN,  PAKISTAN  AND  THE  EMERGENCE  OF  ISLAMIC  MILITANCY  IN  AF- 
GHANISTAN 55-92  (2005). 

11.  The  graphic  appears  in  Seth  Jones,  Counterinsurgency  in  Afghanistan,  RAND  Counterin- 
surgency  Study  Vol.  4,  at  45  (June  9, 2008),  available  at  http://www.rand.org/pubs/monographs/ 
2008/RAND_MG595.pdf,  and  is  reprinted  with  permission  of  RAND  Corporation,  Santa 
Monica,  CA. 

12.  See  Eric  Schmitt  &  Mark  Mazzetti,  Pakistan's  Planned  Accord  With  Militants  Alarms  U.S., 
NEW  YORK  TIMES,  Apr.  30, 2008,  at  A 10;  see  also  CRS  Report,  supra  note  1,  at  20-21;  Jones,  supra 
note  11,  at  43-44;  National  Intelligence  Council,  National  Intelligence  Estimate:  The  Terrorist 
Threat  to  the  US  Homeland  6  (July  2007),  available  at  http://www.dni.gov/press_releases/ 
20070717_release.pdf. 

13.  US  cross-border  operations  at  issue  in  this  paper  are  focused  on  the  FATA  region,  not  the 
North  West  Frontier  Province  (NWFP)  or  Baluchistan.  It  should  be  noted,  however,  that  Paki- 
stani militants  have  also  begun  holding  territory  (and  attacking  Pakistani  military  and  govern- 
ment targets)  in  certain  areas  of  the  NWFP. 

14.  See  Jones,  supra  note  1 1,  at  58-59  ("Afghan  insurgents  used  Pakistan  as  a  staging  area  for 
offensive  operations.  Taliban  insurgents  that  operated  in  the  southern  Afghan  provinces  of 
Kandahar,  Oruzgan,  Helmand,  and  Zabol  had  significant  support  networks  in  such  Pakistani 
provinces  as  Baluchistan  and  the  Federally  Administered  Tribal  Areas,  including  in 
Waziristan. . . .  The  Taliban  conduct  much  of  their  financing  and  recruiting  operations  on  the 
Pakistani  side  of  the  border"). 

15.  See  id.  at  38,  50-51. 


134 


Sean  D.  Murphy 


16.  CRS  Report,  supra  note  1,  at  18-20  &  29.  Some  believe  Baitullah  Mehsud  masterminded 
the  assassination  of  former  Pakistani  Prime  Minister  Benazir  Bhutto  in  December  2007.  In  early 
October  2008,  unconfirmed  reports  began  circulating  of  Mehsud's  death  from  illness. 

17.  See  Jones,  supra  note  1 1,  at  46. 

18.  Mat 62-63. 

19.  Quoted  in  Peter  Bergen,  Assessing  the  Fight  Against  Al  Qaeda,  Testimony  before  the 
House  Permanent  Select  Committee  on  Intelligence,  at  8  (Apr.  9,  2008),  available  at  http:// 
www.fas.org/irp/congress/2008_hr/040908bergen.pdf. 

20.  See  Tyson,  supra  note  1,  at  A16  (reporting  testimony  of  General  Carrwright);  see  also 
Jones,  supra  note  1 1,  at  64-65  ("The  use  of  suicide  attacks  was  encouraged  by  al  Qaeda  leaders  in 
Pakistan  ....  Suicide  bombers  included  Afghans,  Pakistanis,  and  some  foreigners.  Most  suicide 
bombers  through  2007  came  from  Afghan  refugee  camps  in  Pakistan"). 

21.  Jane  Perlez,  Pakistan  Defies  U.S.  On  Halting  Attacks,  NEW  YORK  TIMES,  May  16, 2008,  at 
A6  (referring  to  NATO  and  US  sources);  CRS  Report,  supra  note  1,  at  31. 

22.  See  Jones,  supra  note  1 1,  at  65;  see  also  Bergen,  supra  note  19,  at  7  ("The  use  of  suicide  at- 
tacks, improvised  explosive  devices  and  the  beheadings  of  hostages — all  techniques  that  al  Qaeda 
perfected  in  Iraq — are  methods  that  the  Taliban  has  increasingly  adopted  in  Afghanistan,  mak- 
ing much  of  the  south  of  the  country  a  no-go  area"). 

23.  See  HUSAIN  HAQQANI,  PAKISTAN:  BETWEEN  MOSQUE  AND  MILITARY  301-10  (2005); 
CRS  Report,  supra  note  1,  at  26-27;  Jones,  supra  note  1 1,  at  59-60. 

24.  See  Jones,  supra  note  1 1,  at  56  (finding  that  parts  of  the  Pakistani  government,  especially 
members  of  the  Inter-Services  Intelligence  Directorate  and  Frontier  Corps,  provide  support  to 
the  Taliban  in  Pakistan);  CRS  Report,  supra  note  1,  at  23;  Ann  Scott  Tyson,  Border  Complicates 
War  in  Afghanistan,  WASHINGTON  POST,  Apr.  4,  2008,  at  Al  (quoting  a  frontline  US  soldier  as 
saying  the  "Frontier  Corps  might  as  well  be  Taliban  ....  They  are  active  facilitators  of 
infiltration"). 

25.  See  Jones,  supra  note  1 1,  at  21. 

26.  See  CRS  Report,  supra  note  1,  at  27-28;  Jones,  supra  note  11,  at  57-58;  Schmitt  & 
Mazzetti,  supra  note  12,  at  A10;  see  also  Ismail  Khan  &  Carlotta  Gall,  Pakistan  Lets  Tribal  Chiefs 
Keep  Control  Along  Border,  NEW  YORK  TIMES,  Sept.  6,  2006,  at  A8. 

27.  See  Joby  Warrick,  U.S.  Officials:  Pakistani  Agents  Helped  Plan  Kabul  Bombing,  WASHING- 
TON POST,  Aug.  1,  2008,  at  Al,  available  at  http://www.washingtonpost.com/wp-dyn/content/ 
article/2008/08/01/AR2008080100133.html;  CRS  Report,  supra  note  1,  at  25;  Jones,  supra  note 
11,  at  54-57. 

28.  See  Craig  Whitlock,  In  Hunt  for  Bin  Laden,  a  New  Approach,  WASHINGTON  POST,  Sept. 
10,  2008,  at  Al. 

29.  See  Nayak,  supra  note  3,  at  305-06. 

30.  Perlez,  supra  note  21. 

31.  In  February  2009,  US  Senator  Dianne  Feinstein,  chairwoman  of  the  Senate  Intelligence 
Committee,  stated  publicly  that  unmanned  Predator  aircraft  engaging  in  attacks  in  Pakistan  are 
flown  from  an  air  base  in  Pakistan,  marking  the  first  time  a  US  official  had  publicly  commented 
on  where  the  Predator  aircraft  patrolling  Pakistan  take  off  and  land.  See  Greg  Miller,  Feinstein 
Comment  on  U.S.  Drones  Likely  to  Embarrass  Pakistan,  LOS  ANGELES  TIMES,  Feb.  13, 2009,  at  1 . 

32.  See  CRS  Report,  supra  note  1 ,  at  36;  Robin  Wright  &  Joby  Warrick,  US.  Steps  Up  Unilat- 
eral Strikes  in  Pakistan,  WASHINGTON  POST,  Mar.  27,  2008,  at  Al. 

33.  See  Whitlock,  supra  note  28. 

34.  See  Officials  Report  Airstrike,  WASHINGTON  POST,  Oct.  27,  2008,  at  A10. 


135 


The  International  Legality  of  US  Military  Cross-Border  Operations 

35.  See  Saad  Gul  &  Katherine  M.  Royal,  Burning  the  Barn  to  Roast  the  Pig?  Proportionality 
Concerns  in  the  War  on  Terror  and  the  Damadola  Incident,  14  WILLAMETTE  JOURNAL  OF 
International  Law  &  Dispute  Resolution  49, 51  (2006). 

36.  See,  e.g.,  Reza  Sayah,  Pakistan  fury  over  U.S.  'hot  pursuit'  act,  CNN,  June  11, 2008,  http:// 
www.cnn.com/2008/WORLD/asiapcf/06/ 1 1  /pakistan.troops.killed/index.html. 

37.  See  Carlotta  Gall  &  Eric  Schmitt,  Pakistan  Angry  as  Strike  by  U.S.  Kills  1 1  Soldiers,  NEW 
YORK  TIMES,  June  12,  2008,  at  Al;  CRS  Report,  supra  note  1,  at  34-35.  In  at  least  one  instance, 
Pakistani  military  forces  may  have  fired  warning  shots  to  prevent  US  troops  from  crossing  the 
border  into  Pakistan.  See  Candace  Rondeaux,  Pakistan  Allegedly  Repulses  U.S.  Raid,  WASHING- 
TON POST,  Sept.  16,  2008,  at  A12. 

38.  See  Tyson,  supra  note  24. 

39.  See  Naylor,  supra  note  2. 

40.  See  Whitlock,  supra  note  28. 

41.  See  Eric  Schmitt  &  Mark  Mazzetti,  Bush  Said  to  Give  Orders  Allowing  Raids  in  Pakistan, 
NEW  YORK  TIMES,  Sept.  11,  2008,  at  Al. 

42.  Id.;  Whitlock,  supra  note  28,  (reporting  that  "U.S.  commandos  crossed  from  Afghani- 
stan into  Pakistan  in  helicopters  and  killed  about  20  people  in  a  suspected  Taliban  compound  in 
South  Waziristan").  The  rules  of  engagement  for  special  operations  forces  operating  in  Afghani- 
stan are  classified. 

43.  See  Naylor,  supra  note  2  (quoting  an  unnamed  US  government  official  that  the  raid  was  a 
"strategic  miscalculation"). 

44.  UN  Charter  art.  2(4). 

45.  See,  e.g.,  International  Law  Commission,  Articles  on  Responsibility  of  States  for  Interna- 
tionally Wrongful  Acts  art.  20,  in  Report  of  the  International  Law  Commission,  Fifty-third  Session, 
U.N.  Doc.  A/56/10  (2001)  ("Valid  consent  by  a  State  to  the  commission  of  a  given  act  by  another 
State  precludes  the  wrongfulness  of  that  act  in  relation  to  the  former  State  to  the  extent  that  the 
act  remains  within  the  limits  of  that  consent"). 

46.  See,  e.g.,  Oscar  Schachter,  The  Right  of  States  to  Use  Armed  Force,  82  MICHIGAN  LAW  RE- 
VIEW 1620,  1644-45  (1984)  (seeing  no  violation  of  UN  Charter  Article  2(4)  "when  a  foreign 
force  is  invited  by  the  government  to  help  put  down  an  attempted  coup  or  assist  in  restoring  law 
and  order"). 

47.  See  Tyson,  supra  note  1,  at  A 16  (reporting  testimony  of  Secretary  of  Defense  Gates). 

48.  See  Whitlock,  supra  note  28;  Eric  Schmitt  8c  David  E.  Sanger,  Pakistan  Shift  Could  Curtail 
Drone  Strikes,  NEW  YORK  TIMES,  Feb.  22, 2008,  at  Al  (reporting  that  "American  officials  reached 
a  quiet  understanding  with  Pakistan's  leader  last  month  to  intensify  secret  strikes  against  sus- 
pected terrorists  by  pilotless  aircraft  launched  in  Pakistan"). 

49.  See  Schmitt  &  Mazzetti,  supra  note  4 1 . 

50.  See  CRS  Report,  supra  note  1,  at  34  ("Permission  for  U.S.-led  attacks  on  forces  under  the 
command  of  militant  leaders  ...  is  not  overtly  forthcoming  to  date"). 

51.  See  Jane  Perlez,  Pakistan's  Military  Chief  Criticizes  U.  S.  Over  a  Raid,  WASHINGTON  POST, 
Sept.  10,  2008,  at  A8. 

52.  See  generally  STEPHEN  PHILIP  COHEN,  THE  IDEA  OF  PAKISTAN  (2004). 

53.  See,  e.g.,  id.  (recounting  apparent  disagreement  between  President  Zardari  and  General 
Kayani  over  the  permissibility  of  the  September  3,  2008  cross-border  special  forces  operation). 

54.  See,  e.g.,  JONES,  supra  note  8,  at  34-35. 

55.  WOLFGANG  FRIEDMANN,  THE  CHANGING  STRUCTURE  OF  INTERNATIONAL  LAW  266 
(1964). 


136 


Sean  D.  Murphy 


56.  By  way  of  example,  some  States  expressed  concern  about  Ethiopia's  intervention  in  So- 
malia in  2006  for  the  purpose  of  suppressing  the  Union  of  Islamic  Courts  (UIC).  While  the  inter- 
vention was  conducted  at  the  request  of  the  Somali  Transitional  Government,  which  had  been 
established  with  the  backing  of  the  United  Nations,  the  African  Union  and  the  Arab  League,  the 
transitional  government  controlled  only  a  small  portion  of  southern  Somalia  at  the  time  of  the 
intervention,  while  the  UIC  controlled  the  Somali  capital  and  much  of  the  rest  of  the  country. 
"In  such  a  fragile  situation  and  in  a  crisis  mainly  of  an  internal  nature,  military  intervention  by 
invitation  may  be  very  controversial  indeed  . . . ."  Zeray  W.  Yihdego,  Ethiopia  s  Military  Action 
Against  the  Union  of  Islamic  Courts  and  Others  in  Somalia:  Some  Legal  Implications,  56  INTERNA- 
TIONAL &  Comparative  Law  Quarterly  666  (2008). 

57.  See  UN  Charter  arts.  39  &  42. 

58.  S.C.  Res.  1368,  pmbl.,  U.N.  Doc.  S/RES/1368  (Sept.  12,  2001);  S.C.  Res.  1373,  pmbl., 
U.N.  Doc.  S/RES/1373  (Sept.  28,  2001). 

59.  see  michael  j.  matheson,  council  unbound:  the  growth  of  un  decision 
Making  on  Conflict  and  postconflict  Issues  after  the  Cold  War  157  (2006). 

60.  Agreement  on  Provisional  Arrangements  in  Afghanistan  Pending  the  Re-establishment 
of  Permanent  Government  Institutions,  annex  1,  Dec.  5, 2001,  printed  in  Letter  dated  5  Decem- 
ber 2001  from  the  Secretary-General  addressed  to  the  President  of  the  Security  Council,  U.N. 
Doc.  S/2001/1 154  (2001). 

61.  S.C.  Res.  1386, 1|  1,  U.N.  Doc.  S/RES/1386  (Dec.  20,  2001). 

62.  Id.  at  \  10.  The  Security  Council  also  subsequently  created  a  very  modest  UN  Assistance 
Mission  in  Afghanistan  of  fewer  than  two  thousand  persons  (mostly  Afghan  nationals)  charged 
with  assisting  the  Afghan  government  in  rebuilding  the  country  and  strengthening  the  founda- 
tions of  peace  and  constitutional  democracy. 

63.  Military  Technical  Agreement,  Afghan. -ISAF,  Jan.  4,  2002,  available  at  http://www 
.operations.mod.uk/isafmta.pdf.  After  NATO  assumed  control  of  the  ISAF,  a  further  bilateral 
agreement  was  concluded  between  NATO  and  the  Afghan  government  on  December  9,  2003. 

64.  S.C.  Res.  1413, 1 2,  U.N.  Doc.  S/RES/1413  (May  23,  2002). 

65.  See  S.C.  Res.  1833,  U.N.  Doc.  S/RES/1833  (Sept.  22, 2008)  (extending  ISAF's  mandate  for 
a  period  of  twelve  months  beginning  October  13,  2008). 

66.  S.C.  Res.  1510,1 1,  U.N.  Doc.  S/RES/1510  (Oct.  13,  2003). 

67.  See  NATO  Press  Release,  Revised  Operational  Plan  for  NATO's  Expanded  Mission  in 
Afghanistan  (updated  July  4,  2007),  available  at  http://www.nato.int/issues/afghanistan_stage3/ 
index.html;  see  also  MATHESON,  supra  note  59,  at  1 16. 

68.  UN  Charter  art.  51. 

69.  See,  e.g.,  Jordan  J.  Paust,  Use  of  Armed  Force  against  Terrorists  in  Afghanistan,  Iraq,  and 
Beyond,  35  CORNELL  INTERNATIONAL  LAW  JOURNAL  533,  540-43  (2002). 

70.  CRS  Report,  supra  note  1,  at  22. 

71.  See,  e.g.,  PREEMPTION:  MILITARY  ACTION  AND  MORAL  JUSTIFICATION  (Henry  Shue  & 
David  Rodin  eds.,  2007);  W.  Michael  Reisman  &  Andrea  Armstrong,  The  Past  and  Future  of  the 
Claim  of  Preemptive  Self -Defense,  100  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  525,  525- 
26,  547-48  (2006)  (finding  that  "the  International  Court  of  Justice  and  most  international  law- 
yers have  steadfastly  insisted  on  the  strict  application  of  the  Charter  regime"  and  that  "[v]ery  few 
of  the  more  recent  statements  [of  governments]  seem  to  contemplate  or  claim  a  right  to  direct 
preemptive  attacks  against  other  states"). 

72.  See,  e.g.,  CHRISTINE  GRAY,  INTERNATIONAL  LAW  AND  THE  USE  OF  FORCE  130  (2d  ed. 
2004). 

73.  Military  and  Paramilitary  Activities  (Nicar.  v.  U.S.),  1986  I.C.J.  14,  103-04  (June  27). 


137 


The  International  Legality  of  US  Military  Cross-Border  Operations 

74.  See  Sean  D.  Murphy,  Terrorism  and  the  Concept  of  "Armed  Attack"  in  Article  51  of  the 
U.N.  Charter,  43  HARVARD  INTERNATIONAL  LAW  JOURNAL  41,  45-51  (2002). 

75.  Military  and  Paramilitary  Activities,  supra  note  73,  para.  195. 

76.  See  Eric  Myjer  &  Nigel  White,  The  Twin  Towers  Attack:  An  Unlimited  Right  to  Self- 
Defence,  7  JOURNAL  OF  CONFLICT  &  SECURITY  LAW  1,  7  (2002)  (arguing  that  "[t]he  categoriza- 
tion of  the  terrorists  attacks  on  New  York  and  Washington  as  an  'armed  attack'  within  the  mean- 
ing of  article  51  is  problematic  to  say  the  least Self-defence,  traditionally  speaking,  applies  to 

an  armed  response  to  an  attack  by  a  state"). 

77.  Supra  note  73. 

78.  Legal  Consequences  of  the  Construction  of  a  Wall  in  the  Occupied  Palestinian  Territory, 
Advisory  Opinion,  2004  I.C.J.  136,  194  (July  9). 

79.  See,  e.g.,  Sean  D.  Murphy,  Self-Defense  and  the  Israeli  Wall  Advisory  Opinion:  An  Ipse 
Dixit  from  the  ICJ?,  99  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  62  (2005);  see  also  YORAM 

Dinstein,  War,  Aggression,  and  Self-defence  192  (3d  ed.  2001 )  (stating  that  "for  an  armed 
attack  to  justify  counter-measures  of  self-defense  under  Article  51,  it  need  not  be  committed  by 
another  State");  Rein  Miillerson,  Jus  ad  Bellum  and  International  Terrorism,  in  INTERNATIONAL 
LAW  AND  THE  WAR  ON  TERROR  75,  107,  109  (Fred  L.  Borch  &  Paul  S.  Wilson  eds.,  2003)  (Vol. 
79,  US  Naval  War  College  International  Law  Studies)  (finding  that  "terrorism  belongs  to  the  do- 
main of  jus  ad  bellum  as  terrorist  attacks  may  constitute  a  specific,  non-traditional . . .  form  of  an 
armed  attack  that  gives  rise  to  the  right  of  self-defense . . ."  and  "the  right  to  self-defense  today  in- 
cludes measures  undertaken  against  non-state  entities"). 

80.  Armed  Activities  on  the  Territory  of  the  Congo  (Dem.  Rep.  Congo  v.  Uganda),  2005 
I.C.J.  168,  223  (Dec.  19). 

81.  Id.,  Separate  Opinion  of  Judge  Kooijmans,  para.  28;  id.,  Separate  Opinion  of  Judge 
Simma,  para.  11. 

82.  See,  e.g.,  Alissa  J.  Rubin  &  Sabrina  Tavernise,  Turkish  Planes  Strike  Iraqi  Kurdistan,  NEW 
YORK  TIMES,  Feb.  5, 2008;  Sabrina  Tavernise  &  Richard  A.  Oppel  Jr.,  After  8  Days,  Turkey  Pulls  Its 
Troops  Out  of  Iraq,  NEW  YORK  TIMES,  Mar.  1,  2008,  at  A8. 

83.  See  Organization  of  American  States,  Convocation  of  the  Meeting  of  Consultation  of  Min- 
isters of  Foreign  Affairs  and  Appointment  of  a  Commission,  CP/Res.  930  (1632/08)  (Mar.  5, 2008). 

84.  See  Andreas  Zimmerman,  The  Second  Lebanon  War:  Jus  ad  Bellum,  Jus  in  Bello  and  the 
Issue  of  Proportionality,  1 1  MAX  PLANCK  YEARBOOK  OF  UNITED  NATIONS  LAW  99  (2007);  Hu- 
man Rights  Watch,  Civilians  under  Assault:  Hezbollah's  Rocket  Attacks  on  Israel  in  the  2006  War 
(Aug.  29,  2007),  http://hrw.org/reports/2007/iopt0807/. 

85.  See  Griff  Witte,  60  Gazans  Killed  in  Incursion  By  Israel,  WASHINGTON  POST,  Mar.  2, 
2008,  at  Al. 

86.  See  Ernesto  Londono,  U.S.  Airstrike  Allegedly  Kills  8  Inside  Syria,  WASHINGTON  POST, 
Oct.  27,  2008,  at  A9. 

87.  Legality  of  the  Threat  or  Use  of  Nuclear  Weapons,  Advisory  Opinion,  1996  I.C.J.  226, 
245  (July  8). 

88.  See,  e.g.,  DINSTEIN,  supra  note  79,  at  237. 

89.  See  JUDITH  GARDAM,  NECESSITY,  PROPORTIONALITY  AND  THE  USE  OF  FORCE  BY  STATES 
4-8  (2004). 

90.  See  Oil  Platforms  (Iran  v.  U.S.),  2003  I.C.J.  161,  196-98  (Nov.  6). 

9 1 .  See  GARDAM,  supra  note  89,  at  8-19;  see  also  Enzo  Cannizzaro,  The  Role  of  Proportionality 
in  the  Law  of  International  Countermeasures,  12  EUROPEAN  JOURNAL  OF  INTERNATIONAL  LAW 
889,  892  (2001)  (finding  that  "even  responses  greatly  exceeding  the  magnitude  of  the  original 


138 


Sean  D.  Murphy 


breach,  and  extrinsically  unconnected  therewith,  could  nevertheless  be  justified,  if  reasonably 
necessary  to  terminate  it"). 

92.  Roberto  Ago,  Addendum  to  Eighth  Report  on  State  Responsibility,  U.N.  Doc.  A/CN.4/3 18 
&Add.  104(1979). 

93.  ANNOTATED  SUPPLEMENT  TO  THE  COMMANDER'S  HANDBOOK  ON  THE  LAW  OF  NAVAL 
OPERATIONS  §  4.3.2  (A.  Ralph  Thomas  &  James  C.  Duncan  eds.,  1999)  (Vol.  73,  US  Naval  War 
College  International  Law  Studies). 

94.  Id.  at  198-99. 

95.  Armed  Activities  on  the  Territory  of  the  Congo,  supra  note  80,  para  147. 

96.  See  Gilles  Dorronsoro,  The  Security  Council  and  the  Afghan  Conflict,  in  THE  UNITED  NA- 
TIONS Security  Council  and  War:  The  Evolution  of  Thought  and  Practice  Since 
1945  (Vaughan  Lowe,  Adam  Roberts,  Jennifer  Welsh  &  Dominik  Zaum  eds.,  2008). 

97.  See  Miillerson,  supra  note  79,  at  109  (finding  that  when  "terrorists  operate  from  the  terri- 
tory of  a  state  and  that  state  is  unable  or  unwilling  to  end  the  terrorist  acts,  military  action  by 
other  states  directed  at  the  terrorists  within  the  state  where  the  terror  operations  are  originating 
from  can  be  justified  as  a  state  of  necessity")  &  113  (stating  that  "[o]nly  the  refusal  of  the  Taliban 
regime  to  comply  with  US  demands  and  their  active  defense  of  the  Qaeda  network  led  to  the  use 
of  force  in  self-defense  against  both  al  Qaeda  and  the  Taliban"). 

98.  For  policy  recommendations  on  US  support  to  Pakistan  for  counterinsurgency  opera- 
tions, see  Bergen,  supra  note  19,  at  22. 

99.  see  gregor  wettberg,  the  international  legality  of  self-defense  against 
Non-State  Actors  221  (2007). 

1 00.  See,  e.g. ,  Lieutenant  General  Michael  D.  Maples,  US  Army  Director,  Defense  Intelligence 
Agency,  Current  and  Projected  National  Security  Threats  to  the  United  States,  Statement  for  the 
Record  before  the  Senate  Armed  Services  Committee,  at  8  (Feb.  27,  2007),  available  at  http:// 
armed-services.senate.gov/statemnt/2007/February/Maples%2002-27-07.pdf  ("In  2006,  al- 
Qaida  remained  a  loose  network,  broadly  defined  by  the  strategic  objective  of  re-establishing 
their  version  of  an  Islamic  caliphate,  and  unified  by  a  common  ideology  rooted  in  the  violent  re- 
jection of  Western  influence,  especially  in  traditionally  Islamic  countries"). 

101.  See,  e.g.,  Bergen,  supra  note  19,  at  4-6. 

102.  See  International  Law  Commission,  supra  note  45;  Miillerson,  supra  note  79,  at  109  (in- 
dicating that  "if  the  territorial  state,  which  has  itself  been  unable  to  prevent  terrorists  attacking 
other  states  or  their  nationals  and  interests,  resists  the  victim-state  (or  its  allies)  in  their  efforts  to 
eliminate  the  terrorists,  it  itself  becomes  an  accomplice  to  the  terrorist  organization")  &  113 
(stating  that  "[o]nly  the  refusal  of  the  Taliban  regime  to  comply  with  US  demands  and  their  ac- 
tive defense  of  the  al  Qaeda  network  led  to  the  use  of  force  in  self-defense  against  both  al  Qaeda 
and  the  Taliban"). 


139 


VI 


Legal  Issues  in  Forming  the  Coalition 


Alan  Cole* 

'"Tis  our  true  policy  to  steer  clear  of  permanent  alliances,  with  any  portion  of 
the  foreign  world" 

George  Washington,  on  leaving  office,  1796. 

"Personally  I  feel  happier  now  that  we  have  no  allies  to  be  polite  to  and  to 
pamper. " 

King  George  VI,  on  hearing  Britain  stood 
alone  against  Hitler,  June  1940. 

Unlike  George  Washington  and  George  VI,  those  who  contemplated  mili- 
tary action  in  Afghanistan  in  2001  were  eager  to  be  part  of  a  broad,  capable 
and  committed  coalition.  As  well  as  the  obvious  practical  benefits  in  terms  of  addi- 
tional military  assets  and  the  crucial  staging  and  basing  support,  they  wanted  the 
Taliban  and  al  Qaeda  to  know  that  the  resolve  to  defeat  them  stretched  across  all 
continents  and  many  governments.  The  attacks  of  September  11, 2001  were  so  ex- 
traordinary in  both  scale  and  ferocity  that  no  nation  was  likely  to  hesitate  in  identi- 
fying a  clear  legal  basis  to  come  to  the  assistance  of  the  United  States. 

In  fact  the  earliest  days  of  the  coalition  were  characterized  by  general  consen- 
sus among  its  members:  consensus  on  the  horror  of  the  attacks  of  9/1 1,  consensus 
on  the  fact  that  they  represented  an  armed  attack  for  the  purposes  of  Article  51,1 


*  Commander,  Royal  Navy.  The  views  expressed  in  this  article  are  those  of  the  author  and  do  not 
represent  those  of  the  Royal  Navy,  the  United  Kingdom  Ministry  of  Defence  or  Her  Majesty's 
Government. 


Legal  Issues  in  Forming  the  Coalition 


consensus  that  for  those  in  NATO  the  Article  5  right  to  act  in  defense  of  the 
United  States  was  triggered2  and  consensus  that  there  was  sufficient  nexus  be- 
tween al  Qaeda  and  the  Taliban  for  an  invasion  of  Afghanistan  to  be  a  proper  re- 
sponse. Indeed,  it  is  difficult  to  find  much  divergence  of  approach  at  this  point 
among  those  who  came  to  the  support  of  the  United  States.  United  Nations  Secu- 
rity Council  Resolution  13733  made  it  quite  clear  that  the  inherent  right  of  indi- 
vidual and  collective  self-defense  had  been  triggered. 

The  United  Kingdom's  position,  set  out  in  a  letter  to  the  United  Nations  Secu- 
rity Council  on  October  7,  200 1,4  seems  to  have  reflected  the  view  of  most  of  those 
who  took  part  in  the  early  stages  of  the  Afghan  campaign.  It  identified  that  the  at- 
tack triggered  the  United  States'  inherent  right  of  self-defense  and  the  right  of  allies 
to  act  in  collective  self-defense.  That  said,  the  United  Kingdom  government  did 
not  rely  solely  on  the  attacks  of  September  1 1 ,  2001  as  a  basis  for  acting  in  collective 
self-defense  of  the  United  States.  It  referred  also  to  the  need  to  avert  attacks  from 
the  same  source  in  the  future,  and  the  continuing  threat  posed  by  al  Qaeda.  There 
was  also  reference  to  the  August  7,  1998  attacks  on  the  US  embassies  in  Tanzania 
and  Kenya  and  the  October  12,  2000  attack  on  the  USS  Cole  at  anchor  in  Aden,  for 
all  of  which  al  Qaeda  had  claimed  responsibility.  The  United  Kingdom  wanted  to 
make  it  clear  it  was  not  retaliation  it  contemplated,  but  self-defense  in  response  to  a 
campaign  of  international  terrorist  violence. 

The  German  government,  who  had  until  1994  been  constrained  from  deploying 
troops  outside  Germany  and  retained  a  reputation  for  being  cautious  in  its  inter- 
pretation of  the  international  law  right  to  act  in  self-defense,  had  no  doubt  of  the 
lawfulness  of  US  actions.  On  September  19, 2001,  Chancellor  Schroder  stated  that 

[t]he  [North  Atlantic]  Council — like  the  Security  Council — now  also  regards  a 
terrorist  attack  as  an  attack  on  a  Party  to  the  Treaty.  The  attack  on  the  United  States 
thus  constitutes  an  attack  on  all  NATO  partners.  What  rights  do  these  decisions  create 
for  the  United  States?  Based  on  the  decision  of  the  Security  Council,  the  United  States 
can  take  measures  against  the  perpetrators,  organizers,  instigators  and  sponsors  of  the 
attacks.  These  measures  are  authorized  by  international  law.  And,  under  the  terms  of 
the  resolution,  which  further  develops  international  law,  they  can  and  may  take  equally 
resolute  action  against  States  which  support  and  harbour  the  perpetrators.5 

Similarly,  there  is  no  evidence  that  the  connection  between  the  perpetrators  of 
the  attacks  and  the  government  of  Afghanistan  troubled  the  coalition  members  for 
very  long.  Most,  if  not  all,  were  satisfied  that  the  Taliban  were  the  de  facto  govern- 
ment of  Afghanistan  even  if  they  were  not  recognized  as  the  legitimate  government 
by  the  United  Nations.  The  generally  held  view  was  that  the  Taliban  had  failed  over 
a  period  of  two  years  to  comply  with  Security  Council  resolutions6  following  the 

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Alan  Cole 

bombings  of  the  embassies  in  Kenya  and  Tanzania  and  could  be  regarded  both  as 
inextricably  linked  with  and  sheltering  al  Qaeda.  Certainly  the  Taliban  did  not  seek 
assistance  with  removing  al  Qaeda  from  their  territory,  nor  did  they  condemn  it 
publicly.  They  were  given  a  "last  chance"  by  the  United  States  to  surrender  Osama 
Bin  Laden,  which  they  refused. 

Early  coalition  contributions  to  the  invasion  of  Afghanistan  also  reflected  the 
generally  held  view  that  this  was  an  international  armed  conflict.  The  deployment 
of  forces  and  the  details  of  their  rules  of  engagement  (ROE)  were  based  on  the 
premise  that  this  was  a  conflict  between  the  "coalition  of  the  willing"  on  the  one 
hand  and  Taliban  forces,  al  Qaeda  and  the  Afghan  army  on  the  other.  That  left  no 
doubt  that  the  four  1949  Geneva  Conventions7  applied  and,  for  those  who  were 
signatories,  Additional  Protocol  I.8 

Operation  Enduring  Freedom  (OEF)  began  October  7,  2001,  when  President 
Bush  made  the  following  statement: 

On  my  orders,  the  United  States  military  has  begun  strikes  against  Al  Qaeda  terrorist 
training  camps  and  military  installations  of  the  Taliban  regime  in  Afghanistan.  These 
carefully  targeted  actions  are  designed  to  disrupt  the  use  of  Afghanistan  as  a  terrorist 
base  of  operations,  and  to  attack  the  military  capability  of  the  Taliban  regime.  We  are 
joined  in  this  operation  by  our  staunch  friend,  Great  Britain.  Other  close  friends, 
including  Canada,  Australia,  Germany  and  France,  have  pledged  forces  as  the 
operation  unfolds.  More  than  40  countries  in  the  Middle  East,  Africa,  Europe  and 
across  Asia  have  granted  air  transit  or  landing  rights.  Many  more  have  shared 
intelligence.  We  are  supported  by  the  collective  will  of  the  world.9 

President  Bush's  words  set  the  scene  for  a  coalition  of  broad  international  base 
and  substantial  military  depth:  the  Afghan  government  had  few  friends  in  the  in- 
ternational community.  The  coalition  enjoyed  rapid  success  and  by  November 
2001  the  Taliban  had  evacuated  Kabul,  melting  back  into  the  Pushtun  populace  in 
southern  Afghanistan  and  the  Pakistani  tribal  areas.  With  this  short-term  military 
objective  complete,  attention  (particularly  in  Europe)  turned  to  the  form  and  pur- 
pose of  an  enduring  presence  in  Afghanistan.  It  is  at  this  point  that  the  different 
understandings  of  the  legal  basis  for  presence,  use  of  force,  detention  and  other 
military  activity  begin  to  impact  more  noticeably  on  the  conduct  of  operations. 

Operation  Enduring  Freedom  and  International  Security  Assistance  Force: 
Different  Missions  and  Different  Legal  Frameworks 

The  United  States  continued  to  consider  its  activities  in  Afghanistan  as  one  front  in 
its  Global  War  on  Terror.  Although  it  is  not  suggested  that  this  term  is  to  be  taken 


143 


Legal  Issues  in  Forming  the  Coalition 


literally  as  an  indication  that  the  law  of  armed  conflict  applied  to  all  responses  to 
terrorism,  it  was  clear  the  United  States  saw  the  pursuit  of  al  Qaeda,  both  within 
and  outside  Afghanistan,  as  primarily  a  military  mission.  As  such,  OEF  was  pre- 
sented to  other  militaries  as  part  of  a  regional  international  armed  conflict.  A  num- 
ber of  the  nations  that  had  supported  the  invasion  continued  to  provide  forces  to 
OEF,  including  the  United  Kingdom,  Canada  and  Australia,  albeit  they  may  not 
have  (and  certainly  the  United  Kingdom  did  not)  endorsed  the  concept  of  a  Global 
War  on  Terror.  The  OEF  mission  not  only  covered  all  parts  of  Afghanistan,  but 
stretched  across  the  entire  region,  although  most  coalition  partners  limited  their 
military  activity  to  the  territory  of  Afghanistan.  President  Bush  had  set  out  the  fol- 
lowing aims  of  the  mission  on  October  7, 2001,  and  they  remained  the  basis  of  mis- 
sion directives  and  rules  of  engagement: 

By  destroying  camps  and  disrupting  communications,  we  will  make  it  more  difficult 
for  the  terror  network  to  train  new  recruits  and  coordinate  their  evil  plans.  Initially,  the 
terrorists  may  burrow  deeper  into  caves  and  other  entrenched  hiding  places.  Our 
military  action  is  also  designed  to  clear  the  way  for  sustained,  comprehensive  and 
relentless  operations  to  drive  them  out  and  bring  them  to  justice.10 

OEF  activity  included  substantial  air  operations  by  forces  based  both  in  Af- 
ghanistan and  elsewhere,  along  with  operations  on  the  ground.  Certainly  they  ex- 
tended across  the  whole  of  Afghanistan  and  were  often  similar  in  intensity  to  those 
that  formed  part  of  the  invasion.  The  embryonic  government  in  Kabul,  which 
clearly  supported  efforts  to  eliminate  remaining  al  Qaeda  and  Taliban  forces,  not 
least  to  secure  its  own  position,  was  not  in  a  position  to  supervise  or  approve  the 
conduct  of  the  military  mission.  It  consented  to  OEF's  continuation  in  principle, 
but  had  no  veto  or  control  of  particular  operations.  The  business  of  establishing  a 
national  democratic  government  for  the  first  time  in  the  nation's  history  did  not 
allow  for  detailed  involvement  in  OEF  operational  decisions.  The  extent  to  which 
it  would  have  been  consulted  had  it  sought  to  be  is  not  clear.  The  absence  of  direct 
involvement  by  the  Afghan  government  in  2001-2  tends  to  support  the  premise 
that  OEF  remained  the  expression  of  an  international  armed  conflict  between  the 
OEF  forces  and  the  remaining  Taliban  and  al  Qaeda  forces,  albeit  the  Taliban  and 
al  Qaeda  were  never  capable  of  being  high  contracting  parties  for  the  purposes  of 
the  Geneva  Conventions.11 

In  parallel  and  following  the  Bonn  conference  in  December  2001,  the  Interna- 
tional Security  Assistance  Force  (ISAF)  was  established  by  Security  Council  Resolu- 
tion 1386.12  On  December  20, 2001,  a  UK  general,  Lieutenant  General  John  McColl, 
took  command  of  forces  from  nineteen  nations,  including  the  United  States,  the 


144 


Alan  Cole 

United  Kingdom,  Canada  and  Australia,  that  were  contributing  to  OEF.  For  many 
nations,  including  the  United  Kingdom  and  Canada,  this  was  the  point  at  which 
they  may  have  judged  that  the  international  armed  conflict  had  come  to  an  end. 
The  Taliban  government  had  been  replaced  by  one  drawn  from  the  Northern  Alli- 
ance, which  had  itself  fought  alongside  the  coalition  and  was  very  much  NATO's 
preferred  replacement.  That  government  had  sought  the  assistance  of  the  United 
Nations  in  establishing  security  in  its  country  and  provided  forces  from  the  Afghan 
National  Army  to  fight  alongside  ISAF  and  against  the  remaining  Taliban/al  Qaeda, 
who  wished  to  see  it  fail. 

The  ISAF  mission  was  much  more  narrowly  drawn  in  both  geographical  and 
military  terms.  ISAF  forces  restricted  their  operations  to  Kabul  and  its  envi- 
rons:13 they  saw  their  role  as  the  provision  of  support  to  the  new  government  in 
Kabul  in  its  continuing  internal  armed  conflict  with  Taliban,  al  Qaeda  and  others 
who  sought  to  overthrow  it.  The  ISAF  mission  was  generally  based  on  self-defense 
activity  (including  the  collective  defense  of  Afghan  government  forces),  with  only 
exceptional  recourse  to  the  use  of  offensive  force  under  the  law  of  armed  conflict: 
in  part  this  reflected  fear  of  "mission  creep."  The  characterization  of  the  conflict  as 
"non-international"  also  seemed  to  find  favor  with  the  International  Committee 
of  the  Red  Cross  (ICRC),  which,  in  June  2002,  used  the  same  description.14  Al- 
though positions  on  the  legal  basis  for  operations  varied  among  ISAF  contributing 
nations,  most  relied  on  a  combination  of  the  Security  Council  Resolution  and  the 
consent  of  the  government  of  Afghanistan.  In  fact,  many  contributing  nations 
were  pleased  to  distance  themselves  from  the  US  notion  of  the  Global  War  on  Ter- 
ror, understanding  it  (rightly  or  wrongly)  to  be  the  concept  of  an  international 
armed  conflict  against  international  terrorist  organizations  wherever  they  might 
be  in  the  world.  They  judged  counterterrorism  to  be  a  law  enforcement  issue  and 
characterized  those  they  engaged  under  the  laws  of  armed  conflict  within  the  con- 
text of  the  non-international  armed  conflicts  in  Iraq  and  Afghanistan  (and  they 
had  to  be  members  of  identified  groups  that  were  considered  party  to  those  con- 
flicts) as  insurgents. 

In  Afghanistan,  the  narrower  mission  of  ISAF  in  supporting  the  fledgling  gov- 
ernment in  Kabul,  with  its  wide  international  support  and  Security  Council  resolu- 
tion basis,  was  altogether  more  palatable  for  some  of  the  European  nations  that  had 
rarely  engaged  in  expeditionary  operations  since  1945.  It  was  also  a  crucial  mission 
if  that  government  was  to  survive.  For  some  NATO  nations,  uncertainty  remained 
as  to  whether  the  remaining  operations  in  Afghanistan  amounted  to  an  armed  con- 
flict and,  if  so,  whether  it  justified  the  scale  of  operations  undertaken  by  OEF. 


145 


Legal  Issues  in  Forming  the  Coalition 


Beyond  Security  Council  Resolution  1510:  Caution  and  Caveat 

In  late  2003,  Security  Council  Resolution  1510  vested  command  of  ISAF  in  NATO 
and  extended  its  remit  beyond  Kabul.  "Stage  1  Expansion,"  as  it  became  known,  be- 
gan in  the  north  and  followed  a  request  from  the  Afghan  Minister  of  Foreign  Affairs 
for  assistance  with  security  in  the  wider  country.  Notwithstanding  that  NATO  had 
celebrated  its  fiftieth  birthday  some  years  before,  the  coalition  was  now  engaged  in 
the  most  complex  operations  in  its  history.  As  it  became  clear  there  was  still  sub- 
stantial fighting  to  be  done  if  the  conditions  for  political  and  physical  reconstruction 
were  to  be  created,  member  States  found  themselves  having  to  determine  how  far 
they  were  prepared  to  commit  their  militaries  in  a  nation  well  outside  the  North  At- 
lantic area  and  on  a  type  of  operation  that  had  not  been  contemplated  in  1949.  The 
result  was  the  steady  emergence  of  policy,  legal  and  capability  constraints  that  have 
characterized  ISAF  operations  (although  not  always  hindered  them)  to  this  day. 

Targeting 

One  of  the  first  areas  in  which  differing  national  appetites  became  obvious  was  in 
the  targeting  process.  Although  nations  were  very  clear  as  to  their  duty  to  come  to 
the  collective  self-defense  of  coalition  troops  who  found  themselves  in  contact  with 
the  enemy,  their  positions  regarding  preplanned  targeting  under  the  law  of  armed 
conflict  were  less  consistent.  ISAF  remained  a  wholly  self-defense  mission  until 
2005,  but  OEF  operated  a  formal  target  clearance  process,  designed  to  ensure  that 
where  force  was  contemplated  against  the  enemy  ("target  sets"  to  use  the  military 
jargon)  it  was  going  to  be  used  in  accordance  with  the  principles  set  out  in  the  law 
of  armed  conflict. 

The  first  issue  that  arose  was  identifying  the  enemy.  Soldiers  who  target  a  person 
who  does  not  present  an  imminent  threat  to  their  lives15  have  to  be  satisfied  that 
they  are  attempting  to  kill  a  person  who  falls  within  the  definition  of  a  combatant. 
In  the  context  of  a  war  between  States,  and  in  the  early  days  of  the  Afghan  cam- 
paign, this  was  a  reasonably  straightforward  matter.  The  Taliban,  al  Qaeda  and 
Afghan  military  were  the  combatants  and  tended  to  fight  in  conventional  ways.  But 
by  2003,  it  had  become  more  complex.  As  well  as  the  fighting  elements  of  al  Qaeda 
and  the  Taliban,  there  were  other  tribal  groups  that  wished  to  see  the  government 
in  Kabul  fail.  There  were  also  groups  that  were  apathetic  toward  the  government 
but  opposed  to  the  presence  of  foreign  troops.  Finally  there  were  others  who  ap- 
peared to  enjoy  the  support  of  neighboring  States  or  who  had  traveled  to  Afghani- 
stan to  fight.  Different  nations  took  different  views  of  whom  they  were  engaged 
with  in  an  armed  conflict,  so  coalition  targeting  arrangements  had  to  ensure  that 
the  nation  that  owned  the  assets  likely  to  be  allocated  to  the  particular  target  was 

146 


Alan  Cole 

satisfied  that  the  individuals  they  were  likely  to  kill  were  within  its  own  national  un- 
derstanding of  who  was  a  combatant.  It  is  fair  to  say  that  the  United  States  took  a 
wider  view  of  whom  might  legitimately  be  targeted  than  some  of  its  European  allies. 
The  US  approach  reflected  the  widespread  political  and  public  support  at  home, 
while  the  European  position  reflected  their  more  cautious  national  positions. 

The  application  of  Additional  Protocol  I  to  the  conflict  (and  particularly  its  con- 
tinued application  once  the  conflict  arguably  ceased  to  be  an  international  armed 
conflict  in  June  2002)  is  an  issue  that  has  exercised  academic  minds  but  had  little 
impact  on  the  conduct  of  operations.  Those  States  that  are  signatories  to  Protocol  I 
applied  it  throughout  their  targeting  operations  (because  it  applied  as  a  strict  mat- 
ter of  law  or  because  it  is  their  policy  to  apply  it)  and  those  who  are  not  applied  their 
own  understandings  on  the  customary  international  law  framework  relating  to  the 
use  of  force  in  offensive  operations.  The  application  of  a  uniform  targeting  practice 
throughout  the  period  from  invasion  to  the  current  day  is  for  two  reasons.  First,  as 
a  matter  of  national  policy,  many  nations  will  say  that  the  principles  set  out  for  use 
in  an  international  armed  conflict,  be  they  in  Additional  Protocol  I  or  a  body  of 
similar  customary  international  law,  ought  to  be  applied  in  any  offensive  opera- 
tions. It  is  difficult  to  make  an  argument  that  those  who  find  themselves  at  risk  of 
collateral  damage,  for  example,  in  a  non-international  armed  conflict  are  entitled 
to  less  consideration  that  those  in  the  vicinity  of  an  international  armed  conflict. 
The  second  reason  is  a  purely  practical  one.  Targeting  processes  have  to  be  care- 
fully constructed  to  meet  international  law  requirements  and  to  allow  lawful  tar- 
gets to  be  engaged  as  quickly  and  effectively  as  possible.  Once  a  process  has  been 
put  in  place,  it  has  to  be  rehearsed  and  personnel  trained  in  their  roles.  To  import  a 
separate  set  of  standards  for  a  commander  to  apply  (albeit  advised  by  a  military 
lawyer)  is  simply  to  overcomplicate  the  process.  The  better  approach  is  to  settle  on 
the  highest  standards  that  can  be  said  to  be  applicable  (those  for  an  international 
armed  conflict)  and  use  them  for  all  kinetic  targeting  operations.  Quite  apart  from 
the  practical  benefits  of  the  latter  approach,  it  made  determination  of  the  point  at 
which  the  conflict  changed  from  international  to  non-international  irrelevant  to 
the  tactical  commander. 

Furthermore,  the  application  of  the  principle  of  proportionality  varied  among 
States.  NATO  developed  its  own  position  on  what  was  an  acceptable  level  of  collat- 
eral damage  for  the  air  campaign  in  Afghanistan  but  some  nations  took  a  more  re- 
strictive view  than  NATO.  Not  only  did  that  mean  that  assets  of  those  nations 
would  not  conduct  the  mission,  but  officers  of  those  nations  embedded  in  the  tar- 
geting process  might  be  barred  from  contributing  to  its  success.  Although  NATO  is 
a  legal  entity  for  contractual  and  other  purposes  and  was  created  by  treaty,  it  can- 
not set  out  a  single  position  on  public  international  law  matters  which  are  reserved 

147 


Legal  Issues  in  Forming  the  Coalition 


solely  for  States.  NATO  is  not,  nor  can  it  be,  a  signatory  to  the  Geneva  Conven- 
tions, the  Ottawa  Treaty  or  other  law  of  armed  conflict  treaties,  but  its  member  na- 
tions have  individual  treaty  obligations  which  are  reflected  in  the  organization's 
planning  and  procedures. 

The  position  was  further  complicated  by  the  multinational  staffs  at  ISAF  head- 
quarters (HQ)  and  regional  HQs.  Although  brigade-level  formations  tended  to  be 
wholly  or  largely  from  a  single  nation,  thereby  making  it  obvious  which  national 
provisions  would  apply,  HQ  staffs  were  invariably  mixed.  At  ISAF  HQ,  with  offi- 
cers of  more  than  ten  nations  regularly  involved  in  an  operation,  determining 
whose  caveats  applied  was  not  straightforward.  In  fact,  for  the  military  lawyer,  is- 
sues of  State  responsibility  for  the  actions  of  others  are  some  of  the  most  complex 
that  they  encounter  in  coalition  operations.  The  long-standing  principle  that  a  sol- 
dier will  not  assist  a  colleague  from  another  nation  to  carry  out  an  action  he  knows 
he  is  forbidden  from  doing  himself  is  now  reflected  at  the  State  level  in  the  Interna- 
tional Law  Commission's  Draft  Articles  on  Responsibility  of  States  for  Interna- 
tionally Wrongful  Acts,  notably  at  Articles  16  and  17.16  But  even  the  publication  of 
these  Articles,  which  are  not  binding,  did  little  to  settle  an  approach  to  the  issue. 
Officers  of  some  States  when  asked  to  authorize  a  mission  which  their  national  pol- 
icy or  legal  positions  prevented  their  authorizing  would  take  the  view  that  they 
were  required  to  prevent  the  mission  from  taking  place,  because  in  the  view  of  their 
governments  it  was  unlawful.  Officers  of  other  States,  faced  with  the  same  issue, 
would  choose  to  step  aside  and  hand  their  roles  to  officers  whose  nations  allowed 
them  to  assist.  Although  this  approach  reduced  the  number  of  operations  that  were 
thwarted,  it  required  the  reorganization  of  command  structures  depending  on  the 
nature  of  the  mission  and  the  nationality  of  the  post  holder.  The  operational  lawyer 
and  targeteer  needed  to  understand  not  only  which  nations  were  barred  from  as- 
sisting, but  also  whether  their  officers  would  thwart  the  mission  or  merely  abstain. 

A  related  issue  is  the  commander's  responsibility  for  the  manner  in  which  those 
who  are  of  another  nationality,  but  under  his  command,  carry  out  their  mission. 
Putting  aside  the  issue  of  command  responsibility  for  war  crimes,  which  has  been 
well  addressed  elsewhere,  there  remains  the  issue  of  the  extent  to  which  a  com- 
mander is  obliged  to  scrutinize  the  means  by  which  troops  under  his  command 
conduct  their  mission  to  ensure  they  comply  with  his  own  national  legal  position. 
A  useful  illustration  is  the  use  of  anti-personnel  mines  (APM)  in  respect  to  which 
many  nations  are  signatories  to  the  Ottawa  Convention,17  although  the  use  of  this 
example  should  not  be  seen  as  an  indication  that  any  nation  employed  APM  in  Af- 
ghanistan. Is  a  commander  whose  nation  has  ratified  the  Ottawa  Convention 
(noting  particularly  the  requirement "  [n]ever  under  any  circumstances . . .  [t]o  as- 
sist, encourage  or  induce,  in  any  way,  anyone  to  engage  in  any  activity  prohibited 

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Alan  Cole 

to  a  State  Party  under  this  Convention")18  obliged  to  ensure  that  those  under  his 
command  do  not  employ  them  even  if  their  own  nations  have  not  ratified  the 
Convention? 

A  parallel  example  from  the  maritime  environment  is  the  exercise  of  the  right  of 
visit.  Some  nations  take  the  view  that  the  right  to  visit  in  the  absence  of  one  of  the 
legal  bases  set  out  in  Article  110  of  the  1982  Convention  on  the  Law  of  the  Sea19  re- 
quires the  specific  permission  of  the  flag  State  in  each  instance.  Others  consider 
that  consent  to  board  can  be  given  by  the  ship's  master.  If  a  naval  commander  from 
a  nation  that  requires  specific  flag  State  permission  wants  to  have  a  vessel  boarded 
but  is  unable  to  obtain  the  consent  of  the  flag  State,  he  could  direct  a  vessel  of  a  na- 
tion that  permits  boardings  on  the  basis  of  a  master's  consent  to  conduct  the 
boarding  on  that  basis.  Alternatively,  on  what  might  be  called  the  restrictive  view, 
he  might  seek  assurances  from  all  vessels  under  his  command  that  they  will  adopt 
the  flag  State  consent  approach  for  the  duration  of  the  time  they  are  under  his  com- 
mand. Each  nation  will  reconcile  these  matters  in  a  different  way,  but  one  ap- 
proach that  was  seen  in  the  ISAF  structure  was  for  the  commander  simply  to  ensure 
that  any  mission  or  direction  he  gives  is  capable  of  being  carried  out  within  his  own 
nation's  legal  commitments  and  interpretations.  Hence,  an  order  by  a  commander 
from  an  Ottawa  Convention  signatory  nation  to  troops  from  a  non-signatory  na- 
tion to  lay  APM  would  not  pass  the  test,  while  an  order  to  a  ship  to  conduct  en- 
forcement and  search  operations  in  a  particular  sea  area  might  do  so:  it  does  not 
presuppose  an  activity  which  the  commander  is  not  allowed  to  carry  out  himself. 

Detention 

The  second  area  in  which  significant  divergence  in  approach  became  evident  was 
in  respect  to  detention.  Prior  to  June  2002  (the  period  in  which  all  coalition  nations 
agreed  that  the  conflict  was  international  in  nature),  those  who  were  detained 
might  have  expected  their  custody  to  be  governed  by  the  1949  Geneva  Conven- 
tions. Combatants  other  than  members  of  the  armed  forces  of  Afghanistan  may 
have  been  entitled  to  prisoner  of  war  status  under  Geneva  Convention  III,  and  the 
expectation  was  that  this  issue  would  be  resolved  by  way  of  Article  5  tribunals.  The 
ICRC  persists  to  this  day  in  the  view  that  the  Taliban  were  not  de  facto  prisoners  of 
war  but  ought  to  have  had  their  status  properly  determined.  Those  who  were  deter- 
mined not  to  have  been  entitled  to  prisoner  of  war  status  ought  to  have  been  prose- 
cuted. In  practice,  significant  numbers  of  those  captured  on  the  battlefield  by  US 
forces  were  adjudged  to  be  unlawful  combatants  and  held  at  US  facilities  in  Af- 
ghanistan or  elsewhere. 

From  June  2002,  although  the  United  States  continued  with  the  use  of  the  "un- 
lawful combatant"  categorization,  the  other  coalition  members  moved  swiftly  to  a 

149 


Legal  Issues  in  Forming  the  Coalition 


model  which  they  considered  better  fit  the  recategorization  of  the  conflict  as  a  non- 
international  armed  conflict.  Many  ISAF  nations  were  extremely  uneasy  about  be- 
coming involved  in  any  kind  of  detention  operation,  and  to  this  day  will  not  arrest 
or  detain  Afghan  nationals.  Others  accepted  that  the  campaign  would  require 
some  detention  element  if  it  was  to  succeed  and  settled  on  short-term  detention  on 
behalf  of  the  Afghan  government  as  the  preferred  concept.  In  practice,  this  in- 
volved detention  for  short  periods  (days  rather  than  weeks)  to  facilitate  transfer  to 
the  Afghan  National  Police  or  other  law  enforcement  agency.  The  legal  basis  for  de- 
tention was,  like  the  basis  for  presence  itself,  considered  to  be  the  relevant  Security 
Council  resolutions  and  the  consent  of  the  government  of  Afghanistan.  Although 
there  has  never  been  an  explicit  authority  to  detain  in  the  resolutions,  the  term  "all 
necessary  means,"  notably  in  Resolution  15 1020  and  subsequent  resolutions,  was 
considered  to  give  the  requisite  authority  for  detention  for  the  purposes  of  self- 
defense  and  mission  accomplishment.  The  Afghan  government  supported  ISAF 
detention  operations,  both  in  political  and  practical  terms,  by  cooperating  with  ar- 
resting units  and  providing  Afghan  National  Police  to  ISAF  missions  that  included 
a  detention  element.  Despite  these  two  firm  legal  bases  for  detention,  many  ISAF 
nations  were  reluctant  to  take  part  in  detention  operations. 

In  terms  of  the  legal  framework  that  was  judged  to  govern  the  detention  ar- 
rangements, Common  Article  3  of  the  1949  Geneva  Conventions,  certain  aspects 
of  customary  international  law  and  applicable  human  rights  law  were  most  often 
cited.  For  most  European  nations  that  meant  giving  consideration  to  the  applica- 
tion of  the  European  Convention  on  Human  Rights,21  a  regional  human  rights 
treaty  widely  ratified  by  European  States. 

The  extent  of  application  of  the  European  Convention  on  Human  Rights  to  de- 
ployed operations  was  (and  remains)  not  entirely  clear,  but  what  was  clear  from  the 
start  was  that  some  nations  considered  that  it  had  a  bearing  on  detention  opera- 
tions. So  far  as  can  be  determined,  no  signatory  State  took  the  view  that  human 
rights  law  was  suspended  during  an  armed  conflict.  They  took  the  position  that  hu- 
man rights  law,  while  only  capable  of  binding  the  State  (it  does  not  for  example 
bind  al  Qaeda),  certainly  continues  to  apply  to  some  extent  during  armed  conflict, 
a  position  subsequently  approved  by  the  International  Court  of  Justice.22  In  fact, 
the  Convention  concerns  appear  to  have  been  a  factor  in  dissuading  some  States 
from  taking  any  part  in  ISAF  detention  operations.  The  better  view,23  it  is  submit- 
ted, is  that  the  "all  necessary  means"  provision  in  the  Afghan  resolutions24  gives  an 
implied  authority  to  conduct  detention  operations  for  the  purposes  of  accomplish- 
ing the  mission.  That  implied  authority  does  not  set  aside  obligations  under  appli- 
cable human  rights  law  but  it  does  give  a  basis  for  detention  that  is  not  defeated  by 


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Alan  Cole 

human  rights  treaties.  What  the  Afghan  resolutions  certainly  did  not  give  was  a 
power  of  internment  such  as  those  in  respect  to  Iraq  had  given.25 

In  any  event,  if  detention  remains  for  as  short  a  period  as  necessary  in  order  to 
effect  a  transfer  to  the  Afghan  authorities,  those  nations  who  take  part  in  ISAF 
detentions  may  hope  that  by  limiting  their  operations  in  such  a  way  they  are  miti- 
gating the  risk  of  challenge  under  human  rights  law. 

Conclusion 

Given  the  extraordinary  speed  with  which  an  ad  hoc  coalition  was  formed  to  in- 
vade Afghanistan  in  October  2001  and  the  wide  range  of  nations  that  contributed 
to  the  mission,  conflicts  in  legal  positions  appear  to  have  been  few.  Perhaps  it  is  to 
be  expected  that  an  attack  such  as  that  on  September  11,  2001  will  cause  govern- 
ments to  set  aside  concerns  about  the  strict  interpretation  of  the  UN  or  NATO 
Charters.  Certainly  the  militaries  of  coalition  nations,  which  concern  themselves 
chiefly  with  in  hello  rather  than  ad  helium  issues,  were  left  in  no  doubt  that  they 
were  taking  part  in  an  international  armed  conflict  against  Afghanistan.  Once  it 
became  clear  that  ISAF,  on  the  one  hand,  and  OEF,  on  the  other,  had  different  vi- 
sions for  the  nature  of  operations  subsequent  to  the  installation  of  the  Northern 
Alliance  in  June  2002  as  the  governing  body  of  Afghanistan,  international  law  posi- 
tions on  a  number  of  issues  began  to  diverge.  There  were  concerns  then,  and  there 
remain  concerns  now,  that  operating  two  separate  missions  at  two  different  tem- 
pos in  the  same  country  in  an  attempt  to  suppress  the  same  enemy  is  a  recipe  for  a 
conflict  of  laws,  but  the  nations  that  contribute  to  both  missions  have  generally 
learned  to  reconcile  the  legal  differences  to  ensure  they  do  not  prejudice  success. 

Notes 

1.  Both  S.C.  Res.  1368,  U.N.  Doc.  S/RES/1368  (Sept.  12,  2001)  and  S.C.  Res.  1373,  U.N. 
Doc.  S/RES/1373  (Sept.  28,  2001)  expressly  authorized  the  right  of  self-defense  at  a  time  when  it 
seemed  certain  that  the  attacks  were  not  the  direct  actions  of  a  State. 

2.  The  North  Atlantic  Council  issued  a  press  statement  on  September  12, 2001  stating  that 
the  attack  met  the  requirements  of  Article  5  of  the  Washington  Treaty  and  would  be  considered 
an  attack  on  all  signatories. 

3.  S.C.  Res.  1373,  supra  note  1,  "Reaffirming  the  inherent  right  of  individual  or  collective 
self-defence  as  recognized  by  the  Charter  of  the  United  Nations  as  reiterated  in  resolution  1368 
(2001)." 

4.  Letter  dated  October  7, 2001  from  the  Charge  d'affaires  a.i.  of  the  Permanent  Mission  of 
the  United  Kingdom  of  Great  Britain  and  Northern  Ireland  to  the  United  Nations  addressed  to 
the  President  of  the  Security  Council,  U.N.  Doc.  S/2001/947  (2001). 


151 


Legal  Issues  in  Forming  the  Coalition 


5.  Deutscher  Bundestag,  Plenarprotokoll  (Stenographischer  Bericht)  (BT-Pl.Pr.  14/187), 
Sept.  19,  2001,  at  18302. 

6.  See  S.C.  Res.  1267,  U.N.  Doc.  S/RES/1267  (Oct.  15,  1999),  S.C.  Res  1333,  U.N.  Doc.  S/ 
RES/1333  (Dec.  19, 2000)  and  S.C.  Res.  1390,  U.N.  Doc.  S/RES/1390  (Jan.  28, 2002),  in  which  the 
Security  Council  obliged  all  member  States  to  freeze  the  assets;  prevent  the  entry  into  or  the  tran- 
sit through  their  territories;  and  prevent  the  direct  or  indirect  supply,  sale  and  transfer  of  arms 
and  military  equipment  with  regard  to  individuals  and  entities  belonging  or  related  to  the 
Taliban,  Osama  Bin  Laden  and  the  al  Qaeda  network. 

7.  Convention  for  the  Amelioration  of  the  Condition  of  the  Wounded  and  Sick  in  Armed 
Forces  in  the  Field,  Aug.  12,  1949,  75  U.N.T.S.  31  [Geneva  Convention  I];  Convention  for  the 
Amelioration  of  the  Condition  of  the  Wounded,  Sick  and  Shipwrecked  Members  of  Armed 
Forces  at  Sea,  Aug.  12, 1949, 75  U.N.T.S.  85  [Geneva  Convention  II];  Convention  Relative  to  the 
Treatment  of  Prisoners  of  War,  Aug.  12,  1949,  75  U.N.T.S.  135  [Geneva  Convention  III];  and 
Convention  Relative  to  the  Protection  of  Civilian  Persons  in  Time  of  War,  Aug.  12,  1949,  75 
U.N.T.S.  287  [Geneva  Convention  IV];  all  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR 
(Adam  Roberts  &  Richard  Guelff  eds.,  3d  ed.  2000)  at  197,  222,  244  and  301,  respectively. 

8.  Protocol  Additional  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  International  Armed  Conflicts,  June  8, 1977, 1 125  U.N.T.S.  3,  reprinted 
in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  7,  at  422. 

9.  President  George  W.  Bush,  Address  to  the  Nation  (Oct.  7,  2001),  available  at  http:// 
www.whitehouse.gov/news/releases/200 1  / 1 0/200 1 1 007-8.html. 

10.  Id. 

1 1.  See  Geneva  Convention  I,  supra  note  7,  art.  2. 

12.  S.C.  Res.  1386,  U.N.  Doc.  S/RES/1386  (Dec.  20,  2001). 

13.  As  they  were  required  to  do  by  S.C.  Res.  1386,  id. 

14.  International  humanitarian  law  and  terrorism:  questions  and  answers,  http:// 
www.icrc.org/web/eng/siteeng0.nsf/html/5ynlev  (last  visited  Jan.  15,  2009). 

15.  The  lawfulness  of  the  use  of  self-defense  is  a  matter  for  domestic  law  but  this  expression 
broadly  reflects  the  position  in  most  NATO  nations. 

16.  Draft  Articles  on  the  Responsibility  of  States  for  Internationally  Wrongful  Acts,  Report 
of  the  International  Law  Commission  on  the  Work  of  its  Fifty-third  Session,  U.N.  GAOR,  56th 
Sess.,  Supp.  No.  10,  U.N.  Doc.  A/56/10  (2001),  available  at  http://untreaty.un.org/ilc/texts/ 
instruments/english/draft%20articles/9_6_200 1  .pdf. 

17.  Convention  on  the  Prohibition  of  the  Use,  Stockpiling,  Production  and  Transfer  of 
Anti-Personnel  Mines  and  on  Their  Destruction,  Sept.  18,  1997,  reprinted  in  DOCUMENTS  ON 
THE  LAWS  OF  WAR,  supra  note  7,  at  648. 

18.  Id.,  art.  1. I.e. 

19.  United  Nations  Convention  on  the  Law  of  the  Sea,  Dec.  10,  1982,  1833  U.N.T.S.  3. 

20.  S.C.  Res.  1510,  S/RES/1510  (Oct.  13,  2003). 

21.  Convention  for  the  Protection  of  Human  Rights  and  Fundamental  Freedoms,  Apr.  11, 
1950,  213  U.N.T.S.  221,  available  at  http://www.pfc.org.uk/node/328. 

22.  Armed  Activities  on  the  Territory  of  the  Congo  (Dem.  Rep.  Congo  v.  Uganda),  2005 
I.C.J.  116  (Dec.  19). 

23.  And  the  one  adopted  by  the  European  Court  of  Human  Rights  in  Behrami  v.  France;  and 
Saramati  v.  France,  Germany  and  Norway,  Apps.  Nos.  7141 2/0 1  and  78 1 66/0 1 ,  45  Eur.  Ct.  H.R. 
41  (2007),  available  at  http://www.echr.coe.int./echr/en/hudoc. 


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Alan  Cole 


24.  Including  S.C.  Res.  1386,  supra  note  12;  S.C.  Res.  1390,  supra  note  6;  S.C.  Res.  1419, 
U.N.  Doc.  S/RES/1419  (June  26,  2002);  S.C.  Res.  1510,  supra  note  20;  and  those  that  extended 
ISAF  to  the  present  day. 

25.  See  S.C.  Res.  1546,  U.N.  Doc.  S/RES/1546  (June  8,  2004)  and  annexed  letters. 


153 


PART  III 


THE  CONDUCT  OF  HOSTILITIES 


VII 


Afghanistan  and  the  Nature  of  Conflict 

Charles  Garraway* 

Introduction 

The  story  is  told  of  a  traveler  in  the  west  of  Ireland.  Thoroughly  lost,  he 
stopped  beside  a  field  and  asked  the  farmhand  working  there  how  to  get  to 
Limerick.  The  answer  was  somewhat  disconcerting:  "Well,  if  I  was  you,  sir,  I 
wouldn't  start  from  here!"  There  have  been  times  over  the  last  seven  years  when 
that  phrase  has  come  to  mind.  Decisions  have  been  made  and  consequences  have 
followed — none  more  so  perhaps  than  in  the  relationship  between  the  "war  on 
terror"  and  the  law  of  armed  conflict/laws  of  war.  Much  of  this  uncertainty  arose 
out  of  the  initial  conflict  in  Afghanistan  in  2001.  While  it  may  not  be  possible  to 
change  the  start  point,  it  may  help  to  look  back  and  try  to  ascertain  why  we  are 
where  we  are.  Perhaps  then,  we  will  be  in  a  better  position  to  plan  that  route  to 
Limerick. 

The  End  of  the  Beginning 

Our  story  has  to  start  somewhere  and  where  better  than  in  the  White  House  and 
with  a  presidential  decision.  On  February  7,  2002,  President  Bush  issued  his  mem- 
orandum on  the  subject  of  humane  treatment  of  al  Qaeda  and  Taliban  detainees.1 
In  paragraph  1,  he  stated: 


*  Visiting  Professor,  King's  College  London;  Associate  Fellow,  Chatham  House;  and  Visiting 
Fellow,  Human  Rights  Centre,  University  of  Essex. 


Afghanistan  and  the  Nature  of  Conflict 


Our  recent  extensive  discussions  regarding  the  status  of  al  Qaeda  and  Taliban  detainees 
confirm  that  the  application  of  Geneva  Convention  Relative  to  the  Treatment  of 
Prisoners  of  War  of  August  12,  1949,  (Geneva)  to  the  conflict  with  al  Qaeda  and  the 
Taliban  involves  complex  legal  questions.  By  its  terms,  Geneva  applies  to  conflicts 
involving  "High  Contracting  Parties,"  which  can  only  be  states.  Moreover,  it  assumes 
the  existence  of  "regular"  armed  forces  fighting  on  behalf  of  states.  However,  the  war 
against  terrorism  ushers  in  a  new  paradigm,  one  in  which  groups  with  broad, 
international  reach  commit  horrific  acts  against  innocent  civilians,  sometimes  with  the 
direct  support  of  states.  Our  nation  recognizes  that  this  new  paradigm  -  ushered  in  not 
by  us,  but  by  terrorists  -  requires  new  thinking  in  the  law  of  war,  but  thinking  that 
should  nevertheless  be  consistent  with  the  principles  of  Geneva. 

Although  this  memorandum  was  not  released  to  the  public  until  some  time 
later,  its  effect  upon  the  debates  on  both  the  classification  of  conflicts  and  the  appli- 
cation of  the  laws  of  war  has  been  immense.  No  study  of  Afghanistan,  or  of  any 
other  conflict  since  2002  in  which  the  United  States  has  been  involved,  can  take 
place  without  considering  the  effect  of  this  memorandum.  Indeed  so  pivotal  has  it 
become  to  many  of  the  arguments  that  now  rage  over  the  US  position  on  law  of  war 
issues  that  it  should  be  read  in  full: 

SUBJECT:  Humane  Treatment  of  Taliban  and  al  Qaeda  Detainees 

1.  Our  recent  extensive  discussions  regarding  the  status  of  al  Qaeda  and  Taliban 
detainees  confirm  that  the  application  of  Geneva  Convention  Relative  to  the 
Treatment  of  Prisoners  of  War  of  August  12,  1949,  (Geneva)  to  the  conflict  with  al 
Qaeda  and  the  Taliban  involves  complex  legal  questions.  By  its  terms,  Geneva  applies 
to  conflicts  involving  "High  Contracting  Parties,"  which  can  only  be  states.  Moreover, 
it  assumes  the  existence  of  "regular"  armed  forces  fighting  on  behalf  of  states. 
However,  the  war  against  terrorism  ushers  in  a  new  paradigm,  one  in  which  groups 
with  broad,  international  reach  commit  horrific  acts  against  innocent  civilians, 
sometimes  with  the  direct  support  of  states.  Our  nation  recognizes  that  this  new 
paradigm  -  ushered  in  not  by  us,  but  by  terrorists  -  requires  new  thinking  in  the  law 
of  war,  but  thinking  that  should  nevertheless  be  consistent  with  the  principles  of 
Geneva. 

2.  Pursuant  to  my  authority  as  commander  in  chief  and  chief  executive  of  the 
United  States,  and  relying  on  the  opinion  of  the  Department  of  Justice  dated  January 
22,  2002,  and  on  the  legal  opinion  rendered  by  the  attorney  general  in  his  letter  of 
February  1,  2002, 1  hereby  determine  as  follows: 

a.  I  accept  the  legal  conclusion  of  the  Department  of  Justice  and  determine  that 
none  of  the  provisions  of  Geneva  apply  to  our  conflict  with  al  Qaeda  in  Afghanistan 


158 


Charles  Garraway 


or  elsewhere  throughout  the  world  because,  among  other  reasons,  al  Qaeda  is  not  a 
High  Contracting  Party  to  Geneva. 

b.  I  accept  the  legal  conclusion  of  the  attorney  general  and  the  Department  of 
Justice  that  I  have  the  authority  under  the  Constitution  to  suspend  Geneva  as 
between  the  United  States  and  Afghanistan,  but  I  decline  to  exercise  that  authority  at 
this  time.  Accordingly,  I  determine  that  the  provisions  of  Geneva  will  apply  to  our 
present  conflict  with  the  Taliban.  I  reserve  the  right  to  exercise  the  authority  in  this  or 
future  conflicts. 

c.  I  also  accept  the  legal  conclusion  of  the  Department  of  Justice  and  determine  that 
common  Article  3  of  Geneva  does  not  apply  to  either  al  Qaeda  or  Taliban  detainees, 
because,  among  other  reasons,  the  relevant  conflicts  are  international  in  scope  and 
common  Article  3  applies  only  to  "armed  conflict  not  of  an  international  character." 

d.  Based  on  the  facts  supplied  by  the  Department  of  Defense  and  the 
recommendation  of  the  Department  of  Justice,  I  determine  that  the  Taliban 
detainees  are  unlawful  combatants  and,  therefore,  do  not  qualify  as  prisoners  of  war 
under  Article  4  of  Geneva.  I  note  that,  because  Geneva  does  not  apply  to  our  conflict 
with  al  Qaeda,  al  Qaeda  detainees  also  do  not  qualify  as  prisoners  of  war. 

3.  Of  course,  our  values  as  a  Nation,  values  that  we  share  with  many  nations  in  the 
world,  call  for  us  to  treat  detainees  humanely,  including  those  who  are  not  legally 
entitled  to  such  treatment.  Our  Nation  has  been  and  will  continue  to  be  a  strong 
supporter  of  Geneva  and  its  principles.  As  a  matter  of  policy,  the  United  States 
Armed  Forces  shall  continue  to  treat  detainees  humanely  and,  to  the  extent 
appropriate  and  consistent  with  military  necessity,  in  a  manner  consistent  with  the 
principles  of  Geneva. 

4.  The  United  States  will  hold  states,  organizations,  and  individuals  who  gain 
control  of  United  States  personnel  responsible  for  treating  such  personnel  humanely 
and  consistent  with  applicable  law. 

5.  I  hereby  reaffirm  the  order  previously  issued  by  the  Secretary  of  Defense  to  the 
United  States  Armed  Forces  requiring  that  the  detainees  be  treated  humanely  and,  to 
the  extent  appropriate  and  consistent  with  military  necessity,  in  a  manner  consistent 
with  the  principles  of  Geneva. 

6.  I  hereby  direct  the  Secretary  of  State  to  communicate  my  determinations  in  an 
appropriate  manner  to  our  allies,  and  other  countries  and  international 
organizations  cooperating  in  the  war  against  terrorism  of  global  reach. 

Isl  George  W.  Bush2 

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Afghanistan  and  the  Nature  of  Conflict 


Learned  treatises  have  been  written  on  almost  every  part  of  this  memorandum, 
in  particular  on  the  issue  of  the  application  of  what  the  President  refers  to  as 
"Geneva"  law.  However,  for  the  purposes  of  this  article,  it  is  necessary  to  go  back 
beyond  the  application  of  the  law  to  the  facts.  It  is  the  issue  of  classification  of  the 
conflict  itself  that  raises  challenges  to  the  existing  legal  framework.  Was  the  situa- 
tion in  Afghanistan,  and  also  in  the  wider  context  of  worldwide  terrorism  emanat- 
ing in  part  at  least  from  that  country,  a  "new  paradigm,"  removing  it  from  the 
framework  of  law  that  had  been  painstakingly  constructed  over  the  previous  1 50 
years?  Or  was  it  a  mutation  of  an  existing  structure  and  well  capable  of  accommo- 
dation within  the  current  framework? 

In  order  to  attempt  to  answer  these  questions,  it  is  necessary  to  examine  the  cur- 
rent framework  and  also  to  examine  the  legal  debate  that  raged  within  the  Bush  ad- 
ministration. This  memorandum  was  not  the  product  of  a  "Eureka  moment"  in 
the  Oval  Office  but  the  result  of  a  need  for  a  decision  by  the  President  following 
conflicting  legal  advice  from  within  the  administration  itself.  As  with  the  memo- 
randum itself,  much  of  the  debate  revolves  around  classified  material,  in  terms 
both  of  evidence  and  of  the  written  advice  itself.  There  have  been  leaks  and  much  of 
the  advice  given,  in  particular  by  the  Department  of  Justice,  is  now  in  the  public 
domain.  Greenberg  and  Dratel  have  sought  to  bring  these  together  in  their  compi- 
lation The  Torture  Papers:  The  Road  to  Abu  Ghraih?  At  a  later  date,  some  of  the 
State  Department  advice  also  came  into  the  public  domain.  However,  it  is  clear  that 
the  full  picture  remains  locked  in  the  corridors  of  power  and  it  is  unlikely  that  it 
will  emerge  for  some  time  to  come.  In  the  meantime,  scholars  and  others  must 
make  do  with  what  we  have. 

The  History 

The  factual  history  is  comparatively  straightforward.  On  September  11,  2001,  ter- 
rorists hijacked  four  airliners  in  US  airspace  and  used  them  as  missiles  to  attack  tar- 
gets in  New  York  (the  World  Trade  Center)  and  Washington  (the  Pentagon).  One 
airliner  was  brought  down  short  of  its  target  when  passengers  fought  to  regain  con- 
trol of  the  aircraft.  Within  days,  it  was  apparent  that  these  attacks  were  instigated 
by  al  Qaeda,  operating  primarily  out  of  Afghanistan.  Afghanistan  at  the  time  was  a 
lawless  State.  Its  location  had  made  it  a  battleground  for  the  power  struggles  be- 
tween the  British  Empire  and  Russia  in  the  nineteenth  century.  Although  never 
fully  colonized,  it  had  not  regained  full  independence  until  after  the  First  World 
War,  in  1919,  but  even  then  its  history  was  not  a  happy  one.  Since  1973,  there  had 
been  a  series  of  bloody  coups,  culminating  in  a  Soviet  invasion  after  Mohammed 
Daoud  was  murdered  in  1978.  The  Soviet  forces  were  themselves  forced  to 


160 


Charles  Garraway 


withdraw  in  1989  and  in  1996  the  Taliban  movement  claimed  control  of  the  coun- 
try and  imposed  a  rigid  Shari'a  regime.  Despite  having  territorial  control  of  most  of 
the  country,  the  Taliban  regime  was  not  recognized  by  the  vast  majority  of  the  na- 
tions of  the  world  and  the  "officially  recognized"  government  was  the  Northern  Al- 
liance, which  remained  in  control  of  a  small  enclave  in  the  north  of  the  country. 
The  Taliban  had  provided  support,  refuge  and  facilities  for  the  al  Qaeda  network, 
whose  leader,  Osama  Bin  Laden,  a  Saudi  national,  had  been  driven  out  of  previous 
sanctuaries,  including  Sudan. 

On  October  7,  2001,  following  advice  on  his  authority  under  the  US  Constitu- 
tion to  conduct  military  operations  "against  terrorists  and  nations  supporting 
them"4  President  Bush,  in  conjunction  with  other  allies,  launched  military  attacks 
against  both  al  Qaeda  and  Taliban  targets  in  Afghanistan.  In  the  letter  sent  by  the 
Representative  of  the  United  States  of  America,  John  Negroponte,  to  the  President 
of  the  Security  Council,  the  United  States  invoked  "its  inherent  right  of  individual 
and  collective  self-defense  following  armed  attacks  that  were  carried  out  against 
the  United  States  on  September  11, 200 1."5  After  describing  the  background  to  the 
9/11  attacks,  the  letter  went  on  to  say: 

The  attacks  on  September  1 1, 2001,  and  the  ongoing  threat  to  the  United  States  and  its 
nationals  posed  by  the  Al-Qaeda  organization  have  been  made  possible  by  the  decision 
of  the  Taliban  regime  to  allow  parts  of  Afghanistan  that  it  controls  to  be  used  by  this 
organization  as  a  base  of  operation.  Despite  every  effort  by  the  United  States  and  the 
international  community,  the  Taliban  regime  has  refused  to  change  its  policy.  From 
the  territory  of  Afghanistan,  the  Al-Qaeda  organization  continues  to  train  and  support 
agents  of  terror  who  attack  innocent  people  throughout  the  world  and  target  United 
States  nationals  and  interests  in  the  United  States  and  abroad.6 

While  this  made  clear  the  connection  drawn  by  the  administration  between  al 
Qaeda  and  the  Taliban,  the  letter  also  contained  a  slightly  more  ominous  phrase: 
"We  may  find  that  our  self-defense  requires  further  actions  with  respect  to  other 
organizations  and  other  States."7 

The  "war  on  terror"  had  begun. 

The  Laws  of  War 

'he  history  of  the  laws  of  war  had  developed  in  treaty  terms  since  the  middle  part 
>f  the  nineteenth  century.  The  laws  had  developed  amid  the  Westphalian  struc- 
ture, where  States  were  the  principal  subject  of  international  law.  International  law 
governed  relations  between  States  and  did  not  generally  concern  itself  with  activi- 
ties within  States,  which  were  reserved  to  the  jurisdiction  of  the  States  themselves. 

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Afghanistan  and  the  Nature  of  Conflict 


War  was  an  activity  conducted  between  States  and,  as  a  result,  the  laws  of  war  only 
applied  to  such  wars. 

That  does  not  mean  that  there  was  nothing  that  happened  that  today  would  be 
classified  as  "terrorism."  However,  much  of  this  was  inevitably  internal  and  thus 
considered  beyond  the  boundaries  of  international  law.  Occasionally  such  matters 
spread  across  borders  and  indeed  one  of  the  best-known  principles  in  international 
law,  that  of  self-defense  in  the  ius  ad  bellum,  the  Caroline  case,  arose  out  of  cross- 
border  raids  by  irregulars.  This  led  to  the  famous  exchange  of  correspondence  be- 
tween Lord  Ashburton,  representing  the  United  Kingdom,  and  the  Secretary  of 
War  for  the  United  States,  Daniel  Webster.8  It  is  perhaps  interesting  that  one  of  the 
lesser-known  parts  of  that  particular  incident  was  the  fate  of  one  Alexander 
McLeod,  who  was  arrested  and  detained  by  the  US  authorities  for  his  alleged  par- 
ticipation in  the  destruction  of  the  Caroline.  He  was  tried,  and  acquitted,  in  New 
York  and  indeed  it  was  his  detention  that  led  to  the  exchange  of  diplomatic 
correspondence. 

As  a  matter  of  practice,  terrorism  had  normally  been  considered  a  matter  of  law 
enforcement — at  times  extraterritorial.  It  was  dealt  with  by  domestic  law  rather 
than  international  law  and  certainly  not  by  the  laws  of  war. 

In  1949,  the  text  of  the  four  Geneva  Conventions  of  that  year9  extended  the  laws 
of  war  beyond  the  traditional  inter-State  conflict.  Conflicts  were  divided  into  two 
types.  The  first  were  described  in  Common  Article  2  as  follows: 

In  addition  to  the  provisions  which  shall  be  implemented  in  peacetime,  the  present 
Convention  shall  apply  to  all  cases  of  declared  war  or  of  any  other  armed  conflict  which 
may  arise  between  two  or  more  of  the  High  Contracting  Parties,  even  if  the  state  of  war 
is  not  recognized  by  one  of  them. 

The  Convention  shall  also  apply  to  all  cases  of  partial  or  total  occupation  of  the 
territory  of  a  High  Contracting  Party,  even  if  the  said  occupation  meets  with  no  armed 
resistance. 

Although  one  of  the  Powers  in  conflict  may  not  be  a  party  to  the  present  Convention, 
the  Powers  who  are  parties  thereto  shall  remain  bound  by  it  in  their  mutual  relations. 
They  shall  furthermore  be  bound  by  the  Convention  in  relation  to  the  said  Power,  if  the 
latter  accepts  and  applies  the  provisions  thereof.10 

This  requires  an  "armed  conflict"  between  "two  or  more  High  Contracting 
Parties."  As  only  States  can  be  High  Contracting  Parties,  this  means  inter- State 
conflicts.  However,  Article  3  Common  to  the  four  Conventions  covered  new 
ground: 


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Charles  Garraway 


In  the  case  of  armed  conflict  not  of  an  international  character  occurring  in  the  territory 
of  one  of  the  High  Contracting  Parties,  each  Party  to  the  conflict  shall  be  bound  to 
apply,  as  a  minimum,  the  following  provisions: 

(1)  Persons  taking  no  active  part  in  the  hostilities,  including  members  of  armed 
forces  who  have  laid  down  their  arms  and  those  placed  "hors  de  combat"  by  sickness, 
wounds,  detention,  or  any  other  cause,  shall  in  all  circumstances  be  treated 
humanely,  without  any  adverse  distinction  founded  on  race,  colour,  religion  or  faith, 
sex,  birth  or  wealth,  or  any  other  similar  criteria. 

To  this  end,  the  following  acts  are  and  shall  remain  prohibited  at  any  time  and  in  any 
place  whatsoever  with  respect  to  the  above-mentioned  persons: 

(a)  violence  to  life  and  person,  in  particular  murder  of  all  kinds,  mutilation,  cruel 
treatment  and  torture; 

(b)  taking  of  hostages; 

(c)  outrages  upon  personal  dignity,  in  particular  humiliating  and  degrading 
treatment; 

(d)  the  passing  of  sentences  and  the  carrying  out  of  executions  without  previous 
judgment  pronounced  by  a  regularly  constituted  court,  affording  all  the  judicial 
guarantees  which  are  recognized  as  indispensable  by  civilized  peoples. 

(2)  The  wounded  and  sick  shall  be  collected  and  cared  for. 

An  impartial  humanitarian  body,  such  as  the  International  Committee  of  the  Red 
Cross,  may  offer  its  services  to  the  Parties  to  the  conflict. 

The  Parties  to  the  conflict  should  further  endeavour  to  bring  into  force,  by  means  of 
special  agreements,  all  or  part  of  the  other  provisions  of  the  present  Convention. 

The  application  of  the  preceding  provisions  shall  not  affect  the  legal  status  of  the  Parties 
to  the  conflict.11 

The  key  elements  governing  the  application  of  this  particular  "mini-convention" 
are  as  follows:  (1)  "an  armed  conflict,"  (2)  "not  of  an  international  character"  and 
(3)  "occurring  in  the  territory  of  one  of  the  High  Contracting  Parties."  Clearly  this 
excluded  any  armed  conflict  that  fell  within  the  confines  of  Common  Article  2,  a 
conflict  between  two  or  more  High  Contracting  Parties.  However,  the  term 


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Afghanistan  and  the  Nature  of  Conflict 


"armed  conflict"  remained  undefined  and  it  was  unclear  as  to  the  status  of  a  con- 
flict primarily  "occurring  in  the  territory  of  one  of  the  High  Contracting  Parties" 
when  it  crossed  over  international  borders.  It  should  be  noted  that  the  original  in- 
tention of  the  International  Committee  of  the  Red  Cross  (ICRC)  was  that  the 
whole  of  the  Conventions  should  apply  to  non-international  armed  conflicts. 
Common  Article  3  therefore  was  an  irreducible  minimum  so  far  as  it  was  con- 
cerned. Attempts  were  indeed  made  to  define  what  was  meant  by  "armed  conflict" 
but  these  were  abandoned  and  it  was  the  view  of  the  ICRC  that  this  "wise"  decision 
meant  that  the  term  should  be  interpreted  "as  widely  as  possible."12  This  meant 
avoiding  the  application  of  any  threshold  test. 

Similarly,  although  the  geographic  restriction  was  designed  to  catch  civil  wars, 
there  does  not  appear  to  have  been  any  intention  to  exclude  conflicts  with  cross- 
border  elements.  Few  conflicts  are  contained  entirely  within  the  boundaries  of  one 
territory  and  it  has  generally  been  considered  sufficient  if  the  conflict  is  centered 
within  the  territory  of  a  High  Contracting  Party,  even  if  it  does  have  certain  cross- 
border  features.  Many  rebel  groups  operate  from  "safe  havens"  on  the  other  side  of 
international  borders.  Those  who  argued  consistently  that  Northern  Ireland 
amounted  to  a  Common  Article  3  conflict  during  the  "Troubles"  of  the  late  twenti- 
eth century  would  hardly  have  been  amused  to  be  told  that  the  fact  that  elements  of 
the  Irish  Republican  Army  operated  from  across  the  border  in  the  Irish  Republic 
excluded  the  application  of  Common  Article  3. 

However,  regardless  of  these  arguments,  what  was  clear  was  the  division  of  con- 
flict into  two  separate  categories.  This  division  was  confirmed  by  the  adoption  of 
the  two  Additional  Protocols  to  the  1949  Geneva  Conventions  in  1977.  The  first 
applied  primarily  to  international  armed  conflicts  as  defined  by  Common  Article 
213  and  the  second  to  non-international  armed  conflicts.14  However,  Additional 
Protocol  II  adopted  a  much  more  restricted  field  of  application  and  also  intro- 
duced a  threshold — a  negative  definition  of  what  does  not  amount  to  an  armed 
conflict.  Article  1  reads: 

1 .  This  Protocol,  which  develops  and  supplements  Article  3  common  to  the  Geneva 
Conventions  of  12  August  1949  without  modifying  its  existing  conditions  of 
application,  shall  apply  to  all  armed  conflicts  which  are  not  covered  by  Article  1  of  the 
Protocol  Additional  to  the  Geneva  Conventions  of  12  August  1949,  and  relating  to 
the  Protection  of  Victims  of  International  Armed  Conflicts  (Protocol  I)  and  which 
take  place  in  the  territory  of  a  High  Contracting  Party  between  its  armed  forces  and 
dissident  armed  forces  or  other  organized  armed  groups  which,  under  responsible 
command,  exercise  such  control  over  a  part  of  its  territory  as  to  enable  them  to  carry 
out  sustained  and  concerted  military  operations  and  to  implement  this  Protocol. 


164 


Charles  Garraway 


2.  This  Protocol  shall  not  apply  to  situations  of  internal  disturbances  and  tensions, 
such  as  riots,  isolated  and  sporadic  acts  of  violence  and  other  acts  of  a  similar  nature, 
as  not  being  armed  conflicts. 

The  higher  threshold  rules  out  a  number  of  low- intensity  conflicts  where  terri- 
tory is  not  held  by  the  dissident  armed  forces  and,  equally  importantly,  where  the 
conflict  is  between  dissident  armed  groups  themselves  without  any  involvement  of 
the  national  forces,  if  they  exist.  Thus  "failed  State"  conflicts  where  the  battles  are 
between  rival  warlords  would  normally  be  excluded  from  the  application  of  Addi- 
tional Protocol  II.  However,  that  does  not  mean  that  Common  Article  3  does  not 
apply. 

For  our  purposes,  it  is  the  lower  threshold  that  is  important.  "  [Situations  of  in- 
ternal disturbances  and  tensions,  such  as  riots,  isolated  and  sporadic  acts  of  vio- 
lence and  other  acts  of  a  similar  nature"  are  excluded  "as  not  being  armed 
conflicts."  Terrorism  was  generally  deemed  to  fit  within  this  exclusion.  This  is  il- 
lustrated by  the  statement  made  by  the  United  Kingdom  on  ratification  of  Addi- 
tional Protocol  I  in  1998.  It  read:  "It  is  the  understanding  of  the  United  Kingdom 
that  the  term  'armed  conflict'  of  itself  and  in  its  context  denotes  a  situation  of  a 
kind  which  is  not  constituted  by  the  commission  of  ordinary  crimes  including  acts 
of  terrorism  whether  concerted  or  in  isolation'15  (emphasis  added).  This  statement 
came  from  a  nation  that  had  been  plagued  by  cross-border  terrorism  for  a 
generation. 

Back  to  the  Future 

The  events  of  9/1 1  undoubtedly  caused  a  rift  within  the  Bush  administration.  The 
language  was  all  of  "war"  but  what  was  not  clear  was  whether  this  was  seen  as  politi- 
cal rhetoric  or  legal  analysis.  The  sheer  scale  of  the  atrocity  undoubtedly  contrib- 
uted to  this,  but  war  against  whom?  The  term  "war  on  terrorism"  cannot  be  taken 
as  a  legal  description.  "Terrorism"  is  a  tactic  and  one  cannot  wage  war  against  a  tac- 
tic in  any  meaningful  legal  sense.  The  planning  obviously  focused  on  Afghanistan, 
where  Osama  Bin  Laden  was  based,  and  the  United  States,  with  support  from  many 
parts  of  the  world,  prepared  for  war  in  Afghanistan. 

It  seems  that,  at  this  point,  there  was  growing  confusion  between  US  constitu- 
tional law  and  international  law.  This  may  be  because  of  the  trend  for  both  to  be 
taught  together  in  universities  in  the  United  States.  On  September  25,  2001,  John 
Yoo  wrote  the  memorandum  opinion  to  Timothy  Flanagan,  Deputy  Counsel  to 
the  President,  already  mentioned.16  In  that  memorandum,  which  runs  to  some 
twenty  pages,  there  is  only  one  reference  in  the  main  text  to  international  law.17 


165 


Afghanistan  and  the  Nature  of  Conflict 


That  reference  is  in  relation  to  declarations  of  war.  It  states:  "Instead  of  serving  as 
an  authorization  to  begin  hostilities,  a  declaration  of  war  was  only  necessary  to 
'perfect'  a  conflict  under  international  law." 

Apart  from  that  isolated  instance,  the  whole  of  the  remainder  of  the  memoran- 
dum deals  with  the  position  under  US  constitutional  law.  There  is,  however,  one 
sentence  which  possibly  sums  up  the  change  of  opinion  in  the  United  States  and 
also  shows  that  such  a  change  predates  the  presidency  of  George  W.  Bush.  This  sen- 
tence refers  to  the  address  to  the  nation  delivered  by  President  Clinton  on  August  20, 
1998  in  relation  to  the  strike  which  he  had  ordered  that  day  on  Afghanistan  and  Su- 
dan following  the  bombing  of  the  US  embassies  in  Kenya  and  Tanzania.  The  sen- 
tence reads:  "Furthermore,  in  explaining  why  military  action  was  necessary,  the 
President  noted  that  'law  enforcement  and  diplomatic  tools'  to  combat  terrorism 
had  proved  insufficient,  and  that  'when  our  very  national  security  is  challenged  . . . 
we  must  take  extraordinary  steps  to  protect  the  safety  of  our  citizens.'"18  Thus,  it 
appears  that,  as  early  as  1998  under  President  Clinton,  the  United  States  was  begin- 
ning to  move  away  from  treating  terrorism  as  solely  a  matter  of  law  enforcement. 
The  "war  on  terror"  had  not  arrived  but  the  initial  skirmishes  were  under  way. 

Hostilities 

The  legal  debate  took  a  backseat  during  the  conduct  of  hostilities.  While  there  was 
some  discussion  over  the  ius  ad  bellum  issues,  the  campaign  was  conducted  in  ac- 
cordance with  the  principles  of  the  law  of  armed  conflict.  Regardless  of  whether 
there  was  one  conflict  or  two,  the  Department  of  Defense  directive  provides  that 
the  armed  forces  should  "comply  with  the  law  of  war  during  all  armed  conflicts, 
however  such  conflicts  are  characterized,  and  with  the  principles  and  spirit  of  the 
law  of  war  during  all  other  operations."19 

However,  the  issue  became  live  again  when  prisoners  began  to  be  captured. 
Were  they  prisoners  of  war  under  the  Third  Geneva  Convention  or  were  they  not? 
Was  there  any  distinction  to  be  made  between  al  Qaeda  and  the  Taliban?  If  so,  what 
was  it  and  what  were  the  legal  grounds  for  making  any  distinction? 

The  Debate  Continues 

As  has  been  mentioned  earlier,  not  all  the  relevant  documentation  is  in  the  public 
domain  and  therefore  the  discussion  must  inevitably  be  tentative.  However,  a 
number  of  documents  have  either  been  released  or  leaked  and  these  in  themselves 
make  very  interesting  reading  and  go  some  way  to  explaining  the  decision  made  by 
President  Bush  on  February  7,  2002. 

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On  January  9,  John  Yoo  circulated  a  draft  memorandum  prepared  by  him  and 
Special  Counsel  Robert  Delahunty  addressed  to  the  General  Counsel  of  the  De- 
partment of  Defense,  William  J.  Haynes.20  This  memorandum,  significantly,  was 
based  on  the  War  Crimes  Act,  a  domestic  statute.21  It  sought  to  argue  two  main 
propositions:  (1)  "[N]  either  the  Geneva  Conventions  nor  the  [War  Crimes  Act] 
regulate  the  detention  of  al  Qaeda  prisoners  captured  during  the  Afghanistan  con- 
flict" and  (2)  the  Geneva  Conventions  did  not  apply  to  "captured  members  of  the 
Taliban  militia."22  The  simple  argument  was  that  neither  al  Qaeda  nor  Taliban 
fighters  were  entitled  to  prisoner  of  war  status.  Put  in  those  terms,  the  statement, 
while  controversial,  would  have  fitted  within  the  traditional  law  of  war  concept. 
However,  it  was  not  so  much  the  propositions  themselves  but  the  arguments  put 
forward  to  support  them  that  were  to  cause  controversy. 

First,  starting  from  the  War  Crimes  Act,  Yoo  and  Delahunty  began  to  examine  the 
nature  of  conflict.  They  drew  the  usual  distinction  between  Common  Articles  2  and 
3  to  the  Geneva  Conventions  but  sought  to  narrow  the  application  of  Common  Ar- 
ticle 3,  stating  it  "should  not  be  read  to  include  all  forms  of  non-international 
armed  conflict."23  Their  argument  was  that,  "in  enacting  the  [War  Crimes  Act], 
Congress  did  not  understand  the  scope  of  Common  Article  3  to  extend  beyond  civil 
wars  to  all  other  types  of  internal  armed  conflict."24  In  their  view  Common  Article  3 
only  applied  to  "large-scale  conflicts  between  a  State  and  an  insurgent  group,"25  a 
similar  threshold  to  that  later  incorporated  into  Additional  Protocol  II.26 

Second,  they  argued  that  "Al  Qaeda's  status  as  a  non-State  actor  renders  it  ineli- 
gible to  claim  the  protections  of  the  treaties  specified  by  the  [War  Crimes  Act]."27 
The  argumentation  is  confused  as  it  is  not  made  explicit  whether  the  reason  for 
this  conclusion  is  the  nature  of  al  Qaeda  or  the  nature  of  the  conflict  itself.  There 
are  elements  of  both  arguments  and  certainly  when  discussing  Common  Articles  2 
and  3,  the  memorandum  states,  "Our  conflict  with  al  Qaeda  does  not  fit  into  ei- 
ther category."28 

Yoo  and  Delahunty  then  move  to  the  "Taliban  militia."  They  argue  that,  as  a 
matter  of  constitutional  law,  "the  Executive  has  the  plenary  authority  to  determine 
that  Afghanistan  ceased  at  relevant  times  to  be  an  operating  State  and  therefore 
that  members  of  the  Taliban  militia  were  and  are  not  protected  by  the  Geneva  Con- 
ventions."29 There  follows  detailed  argument  as  to  why  Afghanistan  was  a  "failed 
State"  and  a  conclusion  that  "Afghanistan  under  the  Taliban  militia  was  in  a  condi- 
tion of  'statelessness,'  and  therefore  was  not  a  High  Contracting  Party  to  the 
Geneva  Conventions  for  at  least  that  period  of  time."30 

A  secondary  argument  was  that,  even  if  the  Geneva  Conventions  did  apply  to  Af- 
ghanistan, the  members  of  the  Taliban  militia  themselves  did  not  fall  within  the  cate- 
gory of  prisoner  of  war,  outlined  in  Article  4  of  the  Third  Geneva  Convention.31 

167 


Afghanistan  and  the  Nature  of  Conflict 


They  argued  that  the  Taliban  "cannot  even  be  considered  'a  government  or 
authority'"  for  the  purposes  of  Article  4A(3),  which  covers  "[m]  embers  of  regular 
armed  forces  who  profess  allegiance  to  a  government  or  an  authority  not  recog- 
nized by  the  Detaining  Power."  It  was  accepted  that  the  United  States  had  never 
recognized  the  Taliban  regime  as  the  government  of  Afghanistan.32 

The  memorandum  continued  with  a  review  of  previous  US  campaigns,  arguing 
that  wherever  the  Geneva  Conventions  had  been  applied — Korea,  Vietnam,  Pan- 
ama, Somalia,  Haiti  and  Bosnia — a  distinction  needed  to  be  drawn  between  their 
application  as  a  matter  of  law  and  their  application  as  a  matter  of  policy.33  It  goes 
on  to  discuss  whether,  even  if  the  Geneva  Conventions  were  prima  facie  applicable, 
the  President  had  the  power  to  suspend  their  application  either  in  whole  or  in  part 
in  relation  to  Afghanistan.  They  concluded  that  as  a  matter  of  constitutional  law 
"the  President  may  regard  a  treaty  as  suspended  for  several  reasons."34  They  then 
justified  such  a  course  essentially  on  the  basis  that  "Afghanistan  under  the  Taliban 
could  be  held  to  have  violated  basic  humanitarian  duties  under  the  Geneva  Con- 
ventions and  other  norms  of  international  law."35  They  agreed  that  there  was  no 
precedent  for  such  a  suspension  by  the  United  States  but  pointed  out  that  after 
both  the  Korean  War  and  the  Persian  Gulf  War,  the  United  States  had  deviated 
from  the  strict  terms  of  the  Convention  by  allowing  voluntary  repatriation  of  pris- 
oners of  war  rather  than  the  mandatory  repatriation  required  by  the  letter  of  the 
law  in  Article  118  of  the  Third  Geneva  Convention.36 

The  position  under  international  law  was  also  considered  but  with  a  telling 
introduction: 

We  emphasize  that  the  resolution  of  that  question  [whether  the  Geneva  Conventions 
were  applicable],  however,  has  no  bearing  on  domestic  constitutional  issues,  or  on  the 
application  of  the  [War  Crimes  Act].  Rather,  these  issues  are  worth  consideration  as  a 
means  of  justifying  the  actions  of  the  United  States  in  the  world  of  international 
politics.37 

Their  conclusion  was  that  "it  appears  to  be  permissible,  as  a  matter  of  both  treaty 
law  and  of  customary  international  law,  to  suspend  performance  of  Geneva  Con- 
vention obligations  on  a  temporary  basis."38  The  reference  to  customary  interna- 
tional law  was  necessary  as  the  United  States  is  not  party  to  the  Vienna  Convention 
on  the  Law  of  Treaties39  though,  somewhat  reluctantly,  the  memorandum  ac- 
cepted that  "some  lower  courts  have  said  that  the  Convention  embodies  the  cus- 
tomary international  law  of  treaties,  and  the  State  Department  has  at  various  times 
taken  the  same  view."40 


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Charles  Garraway 


The  memorandum  concludes  with  a  general  examination  of  customary  interna- 
tional law.  It  comes  to  the  firm  conclusion  that  it  does  not  amount  to  federal  law, 
citing  Chief  Justice  Marshall,  who  described  customary  international  law  as  "a 
guide  which  the  sovereign  follows  or  abandons  at  his  will.  The  rule,  like  other  pre- 
cepts of  morality,  of  humanity,  and  even  of  wisdom,  is  addressed  to  the  judgment 
of  the  sovereign;  and  although  it  cannot  be  disregarded  by  him  without  obloquy, 
yet  it  may  be  disregarded."41  However,  somewhat  unusually,  the  authors  went  on 
to  hold  that  "the  President  can  properly  find  the  unprecedented  conflict  between 
the  United  States  and  transnational  terrorist  organizations  a  'war'  for  the  purposes 
of  the  customary  or  common  laws  of  war."42  The  purpose  of  this,  however,  was  to 
subject  al  Qaeda  and  the  Taliban  to  those  laws  rather  than  US  forces  to  them.  This 
is  one  of  the  few  examples  of  the  wider  conflict  against  "transnational  terrorist 
organizations"  being  mentioned. 

The  final  paragraph  sums  up  the  whole  memorandum.  It  states: 

[W]e  conclude  that  neither  the  federal  War  Crimes  Act  nor  the  Geneva  Conventions 
would  apply  to  the  detention  conditions  in  Guantanamo  Bay,  Cuba,  or  to  trial  by 
military  commission  of  al  Qaeda  or  Taliban  prisoners.  We  also  conclude  that 
customary  international  law  has  no  legal  binding  effect  on  either  the  President  or  the 
military  because  it  is  not  federal  law,  as  recognized  by  the  Constitution.  Nonetheless, 
we  also  believe  that  the  President  as  Commander-in-Chief,  has  the  constitutional 
authority  to  impose  the  customary  laws  of  war  on  both  the  al  Qaeda  and  Taliban 
groups  and  the  U.S.  Armed  Forces.43 

It  should  be  noted  again  that  the  main  subject  of  this  memorandum  is  detention 
conditions  and  the  role  of  the  military  commissions.  As  such,  the  nature  of  the  con- 
flict or  conflicts  in  themselves  is  a  secondary  consideration  other  than  as  it  impacts 
on  the  main  issue.  There  is  thus  no  argument  specifically  on  the  issue  of  whether 
the  conflict  within  Afghanistan  itself  was  a  single  conflict  governed  by  the  laws  re- 
lating to  international  armed  conflict  or  whether  it  was  bifurcated  into  a  war 
against  al  Qaeda  and  a  war  against  the  Taliban.  Indeed,  the  main  purpose  of  the 
memorandum  seems  to  be  to  argue  that  the  laws  relating  to  armed  conflict  did  not 
apply  at  all! 

The  State  Department  Response 

The  draft  memorandum  had  been  copied  to,  inter  alia,  the  State  Department  and 
brought  a  swift  response  from  William  H.  Taft  IV,  the  Legal  Adviser.  In  a  covering 
note  to  his  memorandum  in  response  to  the  Yoo/Delahunty  draft,  he  said  that  he 
found  "the  most  important  factual  assumptions  on  which  your  draft  is  based  and 

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Afghanistan  and  the  Nature  of  Conflict 


its  legal  analysis  are  seriously  flawed."44  Again,  the  main  purpose  of  the  response 
was  to  examine  the  issues  relating  to  detention  rather  than  the  nature  of  the  con- 
flict. The  comments  were  grouped  into  four  sections.  The  first  dealt  with  the  con- 
tinuing applicability  of  treaty  relations  and  made  the  point  that  "the  ability, 
inability  or  even  unwillingness  of  a  State  to  perform  international  treaty  obliga- 
tions is  a  question  entirely  separate  from  the  question  of  its  status.  Afghanistan  has 
continued  to  be  a  State  and  a  party  to  the  Geneva  Conventions  during  the  relevant 
period."45  There  followed  detailed  legal  and  factual  argument  including  a  specific 
reference  to  United  Nations  practice: 

The  UN  Security  Council  [UNSC]  has  also  indicated  that  the  Taliban  and  other  parties 
to  the  Afghan  conflict  were  bound  to  comply  with  the  Geneva  Conventions.  In  UNSC 
Resolution  1 193(1998),  the  Security  Council  reaffirmed  that:  All  parties  to  the  conflict 
[in  Afghanistan]  are  bound  to  comply  with  their  obligations  under  international 
humanitarian  law  and  in  particular  the  Geneva  Conventions  of  12  August  1949 

UNSC  Resolution  1214,  also  concerning  the  conflict  in  Afghanistan,  uses  essen- 
tially the  same  language  in  a  preambular  clause.  The  parties  referred  to  in  these  in- 
stances are  the  Taliban  and  those  forces  fighting  against  the  Taliban.  These 
Resolutions,  in  which  the  United  States  joined  the  consensus,  describe  "obliga- 
tions" to  adhere  to  the  Geneva  Conventions.  The  Security  Council  could  not  have 
issued  a  resolution  containing  such  a  clause  if  it  had  not  been  convinced  that  there 
was  a  proper  legal  basis  to  apply  international  law  obligations  to  the  parties  to  the 
conflict  within  Afghanistan.  Evidently,  the  Council — and  the  United  States — did 
not  believe  that  Afghanistan  was  a  "failed  State"  where  the  Geneva  Conventions 
had  become  inapplicable. 

The  second  section  addresses  application  of  the  Geneva  Conventions  and  states: 
"This  section  concludes  that  the  [Third  Geneva  Convention]  applies  because  the 
situation  as  between  the  United  States  and  the  Taliban  is  one  of  an  armed  conflict 
arising  between  two  or  more  High  Contracting  Parties  under  Article  2."46  It  should 
be  noted  that  this  refers  solely  to  "the  situation  as  between  the  United  States  and 
the  Taliban." 

The  section  makes  clear  that,  in  the  view  of  the  State  Department,  Common  Ar- 
ticle 2  to  the  Geneva  Conventions  applied  and  that  Afghanistan  "remained  a  High 
Contracting  Party  by  virtue  of  accepted  principles  of  international  law."47  In  its 
opinion,  "the  United  States'  refusal  to  recognize  the  Taliban  as  the  government  was 
not  a  conclusion  that  the  Taliban  was  not  in  effective  control  of  the  great  part  of  Af- 
ghanistan territory."48  The  State  Department  also  resisted  the  Justice  Department 
argument  that  the  Taliban  and  al  Qaeda  were  indistinguishable. 


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Charles  Garraway 


The  memorandum  then  examined  whether,  on  the  basis  that  the  Geneva  Con- 
ventions applied,  the  Taliban  still  qualified  under  Article  4A  of  the  Third  Geneva 
Convention  as  prisoners  of  war.  The  conclusion  was  reached  that,  prima  facie,  they 
qualified  as  "regular  armed  forces"  under  Article  4A(3)  but  that  in  cases  of  doubt, 
the  appropriate  course  would  be  to  hold  tribunals  under  Article  5  of  the  Third 
Geneva  Convention.49  In  this  section,  there  is  a  very  interesting  footnote,  which 
reads: 

For  instance,  one  reason  among  many  that  the  Al  Qaeda  forces  may  not  be  entitled  to 
POW  status  is  that  their  operations  are  designed  to  violate  the  laws  of  war  -  most 
particularly,  to  target  and  attack  civilian  populations  as  such,  civilians  and  civilian 
property.  It  is  this  kind  of  systematic  violation  which  excludes  organized  forces  from 

Article  4(A)(3).50 

This  does  not  rule  out  judging  al  Qaeda  by  the  standards  of  the  Geneva  Conven- 
tions but  in  order  to  do  so,  they  would  have  to  be  applicable. 

The  section  concludes  by  taking  issue  with  some  of  the  conclusions  drawn  in  the 
lustice  Department  memorandum  on  US  practice  in  previous  military  campaigns 
before  taking  further  issue  with  the  Justice  Department  position  on  the  possibility 
of  suspending  obligations  under  the  Geneva  Conventions.  As  the  State  Depart- 
ment pointed  out,  the  United  States  had  not  sought  to  invoke  any  breach  at  the 
time  as  grounds  for  suspension  and  it  was  somewhat  late  now. 

The  final  section  examined  the  position  under  customary  international  law  and 
pointed  out  one  basic  tenet: 

Were  the  President,  as  contemplated  by  the  Draft  Opinion,  to  act  lawfully  under 
federal  law  in  a  manner  that  would  be  inconsistent  with  the  obligations  of  the  United 
States  under  customary  international  law,  that  action  would,  notwithstanding  its 
lawfulness  under  U.S.  domestic  law,  constitute  a  breach  of  an  international  legal 
obligation  of  the  United  States.51 

The  memorandum  pointed  out  how  often  the  United  States  invokes  customary 
law  in  its  relations  with  other  States,  outlining,  somewhat  mischievously,  that  "the 
United  States  relies  upon  customary  international  law  to  provide  the  President  and 
his  family  with  immunity  from  prosecution  and  legal  process  when  he  travels 
abroad,  by  virtue  of  the  doctrine  of  head  of  State  immunity,  which  is  entirely  a  mat- 
ter of  customary  international  law."52 

The  memorandum  concludes  with  an  annex  on  possible  consequences  if  the 
Bush  administration  were  to  decide  against  the  application  of  the  Geneva 


171 


Afghanistan  and  the  Nature  of  Conflict 


Conventions,  both  in  domestic  and  international  fora.  It  is  a  clear  warning  that 
any  such  action  would  not  be  without  consequences. 

As  will  be  seen,  the  Taft  memorandum  bases  itself  on  refuting  the  specific  legal 
arguments  put  forward  by  the  Justice  Department.  It  does  not  deal  with  the  classifi- 
cation of  the  conflict  except  when  it  is  directly  relevant  to  the  subject  matter.  There 
is  nothing  in  the  memorandum  that  indicates  that  the  author  takes  the  view  that 
there  is  a  bifurcated  conflict  in  Afghanistan  rather  than  a  single  conflict  that  covers 
all  the  various  participants.  Such  indications  as  there  are  tend  toward  the  "single 
conflict"  point  of  view  though  it  may  be  that  the  author  never  considered  that  par- 
ticular point  as  an  issue. 

The  Justice  Riposte 

There  followed  a  strong  response  from  John  Yoo  and  Robert  Delahunty  in  which 
they  effectively  maintained  their  previous  position.53  Interestingly,  they  com- 
mented, "Although  we  have  similar  bottom  lines,  we  differ  in  reasoning  on  the  way 
there."54  Indeed  the  argument  was  not  so  much  on  the  practical  effect  of  any  deci- 
sion on  whether  or  not  al  Qaeda  or  the  Taliban  should  be  granted  prisoner  of  war 
status,  but  more  on  the  legal  reasoning  that  led  to  any  such  decision.  The  discus- 
sion on  the  conflict  itself  was  limited  though  they  did  refer  to  "the  unprecedented 
nature  of  our  war  with  al  Qaeda  and  the  Taliban,"55  the  singular  being  important 
here.  The  result  was  a  new  version  of  the  Yoo/Delahunty  memorandum,  issued  on 
January  22,  2002.56 

However,  there  had  been  a  development  in  that,  on  January  18,  the  President, 
acting  as  Commander  in  Chief,  had  directed  that  al  Qaeda  and  Taliban  individuals 
under  the  control  of  the  Department  of  Defense  were  not  entitled  to  prisoner  of 
war  status.  This  was  communicated  by  a  memorandum  to  the  Chairman  of  the 
Joint  Chiefs  of  Staff  from  the  Secretary  of  Defense.57 

Although  the  Yoo/Delahunty  memorandum  had  been  restructured,  there  was 
little  change  to  the  main  arguments.  There  was  reference  to  "a  conflict  with  al 
Qaeda,"  stating  that  it  "is  not  properly  included  in  non-international  forms  of 
armed  conflict"58  and  later  that  it  "does  not  fall  within  Article  2"  of  the  Geneva 
Conventions.59  "It  is  not  an  international  war  between  nation-States  because  al 
Qaeda  is  not  a  State.  Nor  is  this  conflict  a  civil  war  under  Article  3  because  it  is  a 
conflict  of 'an  international  character.'"60  This  last  quote  is  in  a  section  dealing  with 
the  application  of  the  War  Crimes  Act  and  associated  treaties  to  al  Qaeda. 

When  the  memorandum  turns  to  discussing  the  application  of  the  Geneva  Con- 
ventions to  the  Taliban  militia,  it  refers  to  "the  present  conflict  with  respect  to  the 
Taliban  militia."61  Later  on,  in  discussing  the  possible  suspension  of  the  Geneva 

172 


Charles  Garraway 


Conventions,  the  authors  talk  of  the  suspension  of  the  Conventions  "as  applied  to 
the  Taliban  militia  in  the  current  war  in  Afghanistan."62  Later  still,  when  discussing 
the  possible  status  of  Taliban  prisoners  under  Article  4  of  the  Third  Geneva  Con- 
vention, there  is  reference  to  the  need,  if  the  Geneva  Conventions  are  to  apply,  for 
"the  Afghanistan  conflict"  to  be  qualified  as  an  international  armed  conflict.63  This 
is  followed  up  with  a  telling  sentence:  "At  this  point  in  time,  we  cannot  predict 
what  consequences  this  acceptance  of  jurisdiction  would  have  for  future  stages  in 
the  war  on  terrorism."64 

An  overall  study  of  the  memorandum  leaves  the  reader  with  a  sense  that,  as  a  re- 
sult of  the  confused  debate  on  the  application  of  the  law,  the  issue  of  whether  Af- 
ghanistan was  one  conflict  or  two  was  not  really  considered.  At  some  stages,  there  is 
indeed  reference  to  "a  conflict  with  al  Qaeda"  but  in  others  there  seems  to  be  an  in- 
dication that  the  conflict  in  Afghanistan  was  homogeneous  though  the  application 
of  the  law  might  differ  in  respect  to  al  Qaeda  and  Taliban  detainees.  Part  of  this 
confusion  seems  to  arise  from  the  uncertainty  as  to  whether  al  Qaeda  was  a  party  to 
the  conflict  (which  seems  to  be  the  view  taken)  or  whether  it  was  merely  a  partici- 
pant in  a  conflict.  The  issue  of  how  many  conflicts  were  coexisting  was  not  directly 
addressed. 

The  Final  Arguments 

The  Justice  Department  riposte  led  to  a  strong  response  from  the  State  Depart- 
ment. On  January  23,  William  Taft  wrote  to  Judge  Gonzales,  Counsel  to  the  Presi- 
dent, attaching  a  further  memorandum  which  he  had  sent  that  day  to  John  Yoo.65 
This  in  fact  referred  to  a  second  draft  of  the  original  Yoo/Delahunty  memorandum 
though  it  actually  followed  the  dispatch  of  the  final  version.  In  it,  Taft  made  his  po- 
sition clear.  He  stated: 

As  you  know  from  our  previous  comments,  our  view  is  that,  as  a  matter  of 
international  law,  the  Third  Geneva  Convention  applies  to  the  armed  conflict  in 
Afghanistan  because  it  "arises  between"  two  High  Contracting  Parties  to  the 
Convention  under  common  Article  2.  The  legal  status  of  both  al  Qaeda  and  Taliban 
detainees  must  therefore  be  assessed  under  the  Third  Convention.66 

This  is  as  close  as  it  is  possible  to  get  to  a  clear  statement  that  Afghanistan  was  a  sin- 
gle conflict  and  could  not  be  bifurcated  between  al  Qaeda  and  the  Taliban.  He  then 
went  on  to  deal  with  the  application  of  that  Convention,  confirming  that  al  Qaeda 
members  were  not  entitled  to  prisoner  of  war  status,  though  invoking  Common 
Article  3  as  providing  "minimal  standards  applicable  in  any  armed  conflict."67 


173 


Afghanistan  and  the  Nature  of  Conflict 


On  January  25,  2002,  Judge  Gonzales  prepared  a  draft  memorandum  for  the 
President  entitled  "Decision  Re  Application  of  the  Geneva  Convention  on  Pris- 
oners of  War  to  the  Conflict  with  Al  Qaeda  and  the  Taliban."68  The  title  itself  is  in- 
teresting as,  though  the  memorandum  allies  itself  almost  entirely  with  the 
positions  being  taken  by  the  Justice  Department — and  indeed  affirms  that  its  in- 
terpretation on  legal  issues  of  this  sort  is  "definitive" — the  heading  refers  to  "the 
[c]onflict  with  Al  Qaeda  and  the  Taliban."  This  use  of  the  singular  seems  to  con- 
firm that  the  issue  of  bifurcation  simply  was  not  considered. 

The  draft  memorandum  brought  a  swift  response  from  the  Secretary  of  State, 
Colin  Powell,  who  himself  wrote  to  Judge  Gonzales.69  In  this  he  said: 

I  hope  that  the  final  memorandum  will  make  clear  that  the  President's  choice  is 
between 

Option  1:  Determine  that  the  Geneva  Convention  on  the  treatment  of  Prisoners  of 
War  (GPW)  does  not  apply  to  the  conflict  on  "failed  State"  or  some  other  grounds. 
Announce  this  position  publicly.  Treat  all  detainees  consistent  with  the  principles  of 
the  GPW; 

and 

Option  2:  Determine  that  the  Geneva  Convention  does  apply  to  the  conflict  in 
Afghanistan,  but  that  members  of  al  Qaeda  as  a  group  and  the  Taliban  individually  or  as 
a  group  are  not  entitled  to  Prisoner  of  War  status  under  the  Convention.  Announce 
this  position  publicly.  Treat  all  detainees  consistent  with  the  principles  of  the  GPW.70 

There  followed  three  pages  of  argument,  as  well  as  a  page  of  comment  on  the  Gonzales 
draft  memorandum,  but  it  seems  clear  that,  in  the  view  of  the  Secretary  of  State, 
there  was  only  one  conflict  and  the  debate  was  only  as  to  how  al  Qaeda  and  the 
Taliban  should  be  treated  within  whatever  legal  regime  was  deemed  to  apply  to  that 
conflict.  If  the  Secretary  of  State  had  considered  that  there  was  an  issue  as  to 
whether  the  "conflict  in  Afghanistan"  was  one  or  bifurcated,  it  might  be  reasonable 
to  expect  that  there  would  be  some  argument  on  the  point  in  his  letter.  There  is  none. 
The  intervention  of  the  Secretary  of  State  brought  a  riposte  from  the  Attorney 
General,  John  Ashcroft,  on  February  1,  2002. 71  In  his  letter  to  the  President,  he  ar- 
gues strongly  for  Option  1 ,  stating  that  "this  will  provide  the  United  States  with  the 
highest  level  of  legal  certainty  available  under  American  law."72  At  no  point  does  he 
take  issue  with  the  statement  by  the  Secretary  of  State  that  the  conflict  is  singular. 
The  purpose  of  his  letter  is  made  clear  when  he  states: 


174 


Charles  Garraway 


[A]  Presidential  determination  against  treaty  applicability  would  provide  the  highest 
assurance  that  no  court  would  subsequently  entertain  charges  that  American  military 
officers,  intelligence  officials,  or  law  enforcement  officials  violated  Geneva  Convention 
rules  relating  to  field  conduct,  detention  conduct  or  interrogation  of  detainees.  The 
War  Crimes  Act  of  1996  makes  violation  of  parts  of  the  Geneva  Convention  a  crime  in 
the  United  States.73 

William  Taft,  in  a  memorandum  dated  February  2,  2002,74  made  one  last  despair- 
ing effort  to  repair  what  he  apparently  saw  as  an  obvious  departure  by  the  United 
States  from  its  traditional  stance  on  the  laws  of  war.  He  began  by  saying:  "The  pa- 
per should  make  clear  that  the  issue  for  decision  by  the  President  is  whether  the 
Geneva  Conventions  apply  to  the  conflict  in  Afghanistan  in  which  U.S.  armed 
forces  are  engaged."75  After  arguing  forcefully  for  the  application  of  the  Conven- 
tions, he  continued  tellingly:  "It  is  not  inconsistent  with  the  DO  J  [Department  of 
Justice]  opinion  that  the  Conventions  generally  do  not  apply  to  our  world-wide  ef- 
fort to  combat  terrorism  and  to  bring  al  Qaeda  members  to  justice."76  He  con- 
cluded by  saying: 

The  structure  of  the  paper  suggesting  a  distinction  between  our  conflict  with  al  Qaeda 
and  our  conflict  with  the  Taliban  does  not  conform  to  the  structure  of  the 
Conventions.  The  Conventions  call  for  a  decision  whether  they  apply  to  the  conflict  in 
Afghanistan.  If  they  do,  their  provisions  are  applicable  to  all  persons  involved  in  that 
conflict  -  al  Qaeda,  Taliban,  Northern  Alliance,  U.S.  troops,  civilians,  etc.  If  the 
Conventions  do  not  apply  to  the  conflict,  no  one  involved  in  it  will  enjoy  the  benefit  of 
their  protections  as  a  matter  of  law.77 

This  is  the  first  occasion  that  any  argument  is  given  on  this  specific  issue.  Attached  to 
that  memorandum  are  some  notes  entitled  "Status  of  Legal  Discussions."78  The 
notes  clearly  state  that: 

•  DOJ  lawyers  have  concluded  as  matter  of  law  that  our  conflict  with  al  Qaeda, 
regardless  of  where  it  is  carried  out,  is  not  covered  by  GPW.  Lawyers  from  DOD,  WHC 
and  OVP  support  that  legal  conclusion. 

•  DOJ,  DOD,  WHC,  and  OVP  lawyers  believe  that  this  conclusion  is  desirable 
from  a  domestic  law  standpoint  because  it  provides  the  best  possible  insulation 
from  any  misapplication  of  the  War  Crimes  Act  to  the  conflict  with  al  Qaeda, 
whether  in  Afghanistan  or  elsewhere. 

•  DOJ,  DOD,  WHC,  and  OVP  lawyers  further  believe  that  this  conclusion  is 
appropriate  for  policy  reasons  because  it  emphasizes  that  the  worldwide  conflict 
with  al  Qaeda  is  a  new  sort  of  conflict,  one  not  covered  by  GPW  or  some  other 
traditional  rules  of  warfare. 

175 


Afghanistan  and  the  Nature  of  Conflict 


•  DOS  lawyers  believe  that  GPW  applies  to  our  treatment  of  al  Qaeda  members 
captured  in  Afghanistan  on  the  theory  that  GPW  applies  to  the  conflict  in  Afghanistan, 
not  to  particular  individuals  or  groups. 

•  DOS  lawyers  believe  this  conclusion  is  desirable  from  a  domestic  and 
international  law  standpoint  because  it  provides  the  best  legal  basis  for  our 
intended  treatment  of  the  detainees  and  strengthens  the  Geneva  Convention 
protections  of  our  forces  in  Afghanistan  and  other  conflicts. 

•  DOS  lawyers  further  believe  this  conclusion  is  appropriate  for  policy  reasons 
because  it  emphasizes  that  even  in  a  new  sort  of  conflict  the  United  States  bases 
its  conduct  on  its  international  treaty  obligations  and  the  rule  of  law,  not  just  its 
policy  preferences. 

At  last,  the  issue  was  out  in  the  open  after  being  the  "elephant  in  the  room"  for 
so  long.  Five  days  later,  President  Bush  issued  his  memorandum79  and  the  die  was 
cast. 

Conclusion 

Why  was  the  matter  not  dealt  with  in  detail  in  any  of  the  earlier  documentation? 
Surely,  if  the  State  Department  had  realized  that  it  was  a  live  issue,  it  would  have 
featured  in  the  earlier  correspondence.  For  example,  the  Secretary  of  State's 
memorandum80  seems  to  have  taken  for  granted  that  the  conflict  in  Afghanistan 
was  one  entity  and  so,  intriguingly,  does  the  memorandum  for  the  President,  writ- 
ten by  Judge  Gonzales  on  January  25.81  However,  it  was  clearly  an  issue — indeed 
perhaps  the  key  issue — by  the  time  that  William  Taft  wrote  on  February  2.82 

Was  this  a  sudden  realization  by  the  State  Department  or  did  the  issue  crystallize 
in  those  few  days  at  the  end  of  January  2002?  In  any  event,  it  would  seem  that  one  of 
the  most  fundamental  rulings  that  President  Bush  made  was  the  least  subject  to  le- 
gal discussion.  A  further  irony  is  that  it  might  not  have  been  necessary.  Had  the 
President  followed  the  advice  of  the  State  Department  in  respect  to  Afghanistan, 
the  creation  of  the  detention  facility  at  Guantanamo  Bay  would  still  have  hap- 
pened. Members  of  al  Qaeda  would  still  have  been  denied  prisoner  of  war  status 
and  it  is  likely  that  the  vast  majority  of  Taliban  detainees  would  have  been  in  the 
same  position.  The  argument  would  have  been  on  a  different  issue — whether  there 
is  a  gap  between  the  Third  and  Fourth  Geneva  Conventions  where  "unprivileged 
belligerents"  are  concerned.  That  is  a  case  where  the  United  States  would  have  been 
on  far  stronger  legal  ground.  Would  it  have  had  an  effect  on  the  worldwide  effort  to 
combat  terrorism  or  would  it  have  actually  helped  the  United  States  in  enabling  it 
to  lead  the  effort  from  the  moral  high  ground?  Unfortunately,  we  will  never  know. 

176 


Charles  Garraway 


Now  we  struggle  to  deal  with  the  issues  caused  by  that  fateful  decision  both  in  rela- 
tion to  Afghanistan  and  elsewhere  in  the  world.  We  are  still  struggling  to  get  to 
Limerick  but  we  have  no  choice  but  to  start  from  here. 

Notes 

1.  Memorandum  from  George  Bush  to  Vice  President  et  al.,  Humane  Treatment  of  al 
Qaeda  and  Taliban  Detainees  (Feb.  7,  2002),  reprinted  in  THE  TORTURE  PAPERS:  THE  ROAD  TO 
ABU  GHRAIB  134  (Karen  J.  Greenberg  &  Joshua  Dratel  eds.,  2005). 

2.  Mat  134-35. 

3.  Supra  note  1. 

4.  Memorandum  Opinion  from  John  Yoo  to  Timothy  Flanagan,  Deputy  Counsel  to  the 
President,  The  President's  Constitutional  Authority  to  Conduct  Military  Operations  against 
Terrorists  and  Nations  Supporting  Them  (Sept.  25,  2001),  reprinted  in  TORTURE  PAPERS,  supra 
note  1,  at  3. 

5.  Letter  from  John  Negroponte,  Representative  of  the  United  States  of  America  to  the 
United  Nations,  to  the  President  of  the  Security  Council  (Oct.  7,  2001),  available  at  http:// 
avalon.law.yale.edu/septll/un_006.asp. 

6.  Id. 

7.  Id. 

8.  The  relevant  correspondence  is  available  at  Yale  Law  School  Avalon  Project,  Webster- 
Ashburton  Treaty-  The  Caroline  Case,  http://www.yale.edu/lawweb/avalon/diplomacy/britain/ 
br-1842d.htm. 

9.  Convention  for  the  Amelioration  of  the  Condition  of  the  Wounded  and  Sick  in  Armed 
Forces  in  the  Field,  Aug.  12,  1949,  6  U.S.T.  3114,  75  U.N.T.S.  31  [Geneva  Convention  I];  Con- 
vention for  the  Amelioration  of  the  Condition  of  the  Wounded,  Sick  and  Shipwrecked  Members 
of  Armed  Forces  at  Sea,  Aug.  12,  1949,  6  U.S.T.  3217,  75  U.N.T.S.  85  [Geneva  Convention  II]; 
Convention  Relative  to  the  Treatment  of  Prisoners  of  War,  Aug.  12,  1949,  6  U.S.T.  3316,  75 
U.N.T.S.  135  [Geneva  Convention  III];  and  Convention  Relative  to  the  Protection  of  Civilian 
Persons  in  Time  of  War,  Aug.  12, 1949, 6  U.S.T.  3516, 75  U.N.T.S.  287  [Geneva  Convention  IV]; 
all  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR  (Adam  Roberts  &  Richard  Guelff  eds.,  3d  ed. 
2000)  at  197,  222,  244  and  301,  respectively. 

10.  Geneva  Conventions  I-IV,  supra  note  9,  at  198,  222,  244  and  301,  respectively. 

11.  Geneva  Conventions  I-IV,  supra  note  9,  at  198,  223,  245  and  302,  respectively. 

12.  l  Commentary  on  the  Geneva  Conventions  of  12  August  1949,  at  50  (Jean  S. 
Picteted.,  1952). 

13.  Protocol  Additional  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  International  Armed  Conflicts  art.  1(3),  June  8,  1977, 1 125  U.N.T.S.  3, 
reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  9,  at  422. 

14.  Protocol  Additional  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  Non-International  Armed  Conflicts  art.  1,  June  8,  1977,  1 125  U.N.T.S. 
609,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  9,  at  483. 

15.  Letter  from  Christopher  Hulse,  Her  Majesty's  Ambassador  to  Switzerland,  to  the  Presi- 
dent of  the  Swiss  Confederation  statement  (d)  (Jan.  28, 1998),  reprinted  in  DOCUMENTS  ON  THE 
LAWS  OF  WAR,  supra  note  9,  at  510. 

16.  Supra  note  4. 

17.  Id.  2X7. 

177 


Afghanistan  and  the  Nature  of  Conflict 


18.  Id.  at  18. 

19.  Deputy  Secretary  of  Defense,  Department  of  Defense  Directive  5100.7,  DoD  Law  of  War 
Program  para.  5.3.1  (Dec.  9,  1998),  available  at  http://biotech.law.lsu.edu/blaw/dodd/corres/ 
html2/d510077x.htm. 

20.  Memorandum  from  John  C.  Yoo  &  Robert  Delahunty  to  William  J.  Haynes  II,  General 
Counsel,  Department  of  Defense,  Re.  Application  of  Treaties  and  Laws  to  al  Qaeda  and  Taliban 
Detainees  (Jan.  9,  2002),  reprinted  in  TORTURE  PAPERS,  supra  note  1,  at  38  [hereinafter  Yoo/ 
Delahunty  Memorandum]. 

21.  18  US  Code  sec.  2441  (Supp.  Ill  1997). 

22.  Yoo/Delahunty  Memorandum,  supra  note  20,  at  39. 

23.  Id.  at  47. 

24.  Id. 

25.  Id.  at  44. 

26.  Supra  note  14,  and  following  text. 

27.  Yoo/Delahunty  Memorandum,  supra  note  20,  at  48. 

28.  Id.  at  49. 

29.  Id.  at  51. 

30.  Id.  at  55. 

31.  Geneva  Convention  III,  supra  note  9,  art.  4. 

32.  Yoo/Delahunty  Memorandum,  supra  note  20,  at  61. 

33.  Id.  at  62-64. 

34.  Id.  at  65. 

35.  Id. 

36.  Geneva  Convention  III,  supra  note  9,  art.  118. 

37.  Yoo/Delahunty  Memorandum,  supra  note  20,  at  67. 

38.  Mat  69. 

39.  Vienna  Convention  on  the  Law  of  Treaties,  May  23,  1969,  1 155  U.N.T.S.  331,  reprinted 
in  Basic  Documents  in  International  Law  270  (Ian  Brownlie  ed.,  5th  ed.  2002). 

40.  Yoo/Delahunty  Memorandum,  supra  note  20,  at  68. 

41.  Id.  at  73,  citing  Brown  v.  United  States,  12  U.S.  (8  Cranch)  110,  128(1814). 

42.  Mat  77. 

43.  Mat  79. 

44.  Memorandum  from  William  H.  Taft  IV,  Legal  Adviser,  Department  of  State,  to  John  C. 
Yoo,  Deputy  Assistant  Attorney  General,  Office  of  the  Legal  Counsel,  United  States  Department 
of  Justice,  Your  Draft  Memorandum  of  January  9,  at  1  (Jan.  11,  2002),  available  at  http:// 
hei.unige.ch/%7Eclapham/hrdoc/docs/TaftMemo.pdf  [hereinafter  Taft  Memorandum]. 

45.  Id.>  attachment  at  4. 

46.  Mat  11. 

47.  Id.  at  13. 

48.  Id.  at  19. 

49.  Geneva  Convention  III,  supra  note  9,  art.  5. 

50.  Taft  Memorandum,  supra  note  44,  attachment  n.35,  at  21. 

51.  Mat  31. 

52.  Id.  at  33. 

53.  Letter  from  John  Yoo,  Deputy  Assistant  Attorney  General,  Office  of  Legal  Counsel  & 
Robert  J.  Delahunty,  Special  Counsel,  Office  of  Legal  Counsel,  to  William  H.  Taft  IV,  Legal  Ad- 
viser, US  Department  of  State  (Jan.  14,  2002),  available  at  http://www.cartoonbank.com/ 
newyorker/slideshows/02yootaft.pdf. 


178 


Charles  Garraway 


54.  Id.  at  I. 

55.  Id.  at  4. 

56.  Memorandum  from  John  Yoo  &  Robert  Delahunty  to  Alberto  R.  Gonzales,  Counsel  to 
the  President  &  William  J.  Haynes  II,  General  Counsel  of  the  Department  of  Defense,  Re.  Appli- 
cation of  Treaties  and  Laws  to  al  Qaeda  and  Taliban  Detainees  (Jan.  22,  2002),  reprinted  in  TOR- 
TURE PAPERS,  supra  note  1,  at  81  [hereinafter  Yoo/Delahunty  Memorandum  of  January  22, 
2002]. 

57.  Memorandum  from  the  Secretary  of  Defense  to  Chairman  of  the  Joint  Chiefs  of  Staff, 
Status  of  Taliban  and  Al  Qaeda  (Jan.  19, 2002),  reprinted  in  TORTURE  PAPERS,  supra  note  1,  at  80. 

58.  Yoo/Delahunty  Memorandum  of  January  22,  2002,  supra  note  56. 

59.  Id.  at  90. 

60.  Id. 

61.  Mat 91. 

62.  Id.  at  104. 

63.  Id.  at  III. 

64.  Id. 

65.  Note  from  William  H.  Taft  IV,  Legal  Adviser,  Department  of  State,  to  Judge  Gonzales 
covering  Memorandum  from  William  H.  Taft  IV,  Legal  Adviser,  Department  of  State,  to  John  C. 
Yoo,  Deputy  Assistant  Attorney  General,  Office  of  the  Legal  Counsel,  United  States  Department 
of  Justice,  Your  Draft  Memorandum  of  January  18  (Jan.  23,  2002),  available  at  http:// 
www.pegc.us/archive/State_Department/taft_yoo_20020123.pdf. 

66.  Id.  at  1. 

67.  Id.  at  2. 

68.  Memorandum  from  Alberto  R.  Gonzales  to  the  President,  Decision  Re  Application  of 
the  Geneva  Convention  on  Prisoners  of  War  to  the  Conflict  with  Al  Qaeda  and  the  Taliban  (Jan. 
25,  2002),  available  at  http://www.humanrightsfirst.org/us_law/etn/gonzales/memos_dir/memo 
_20020125_Gonz_Bush.pdf. 

69.  Memorandum  from  Colin  L.  Powell  to  Counsel  to  the  President  &  Assistant  to  the  Presi- 
dent for  National  Security  Affairs,  Draft  Decision  Memorandum  for  the  President  on  the  Appli- 
cability of  the  Geneva  Convention  to  the  Conflict  in  Afghanistan  (Jan.  26,  2002),  reprinted  in 
TORTURE  PAPERS,  supra  note  1,  at  122. 

70.  Id.  (emphasis  added). 

71.  Letter  from  John  Ashcroft  to  the  President  (Feb.  1, 2002),  reprinted  in  TORTURE  PAPERS, 
supra  note  1,  at  126. 

72.  Id.  at  127. 

73.  Id.  at  126. 

74.  Memorandum  from  William  H.  Taft  IV,  Legal  Adviser,  Department  of  State,  to  Counsel 
to  the  President,  Comments  on  Your  Paper  on  the  Geneva  Conventions  (Feb.  2, 2002),  reprinted 
in  TORTURE  PAPERS,  supra  note  1,  at  129. 

75.  Id. 

76.  Id. 

77.  Id. 

78.  Status  of  Legal  Discussions  re  Application  of  Geneva  Convention  to  Taliban  and  al 
Qaeda,  in  TORTURE  PAPERS,  supra  note  1,  at  130.  The  notes  reference  discussions  among  lawyers 
from  the  DOJ  (Department  of  Justice),  DOD  (Department  of  Defense),  WHC  (the  White  House 
Counsel's  office)  and  OVP  (Office  of  the  Vice  President). 

79.  Supra  note  1. 

80.  Supra  note  69. 


179 


Afghanistan  and  the  Nature  of  Conflict 


81.  Supra  note  68. 

82.  Supra  note  74. 


180 


VIII 


Making  the  Case  for  Conflict  Bifurcation 

in  Afghanistan:  Transnational  Armed 

Conflict,  al  Qaida  and  the  Limits  of  the 

Associated  Militia  Concept 


Geoffrey  S.  Corn 


* 


I 


n  response  to  a  Committee  for  Human  Rights  inquiry  related  to  the  targeted 
killing  of  an  alleged  al  Qaida  operative  in  Yemen,  the  United  States  asserted: 


The  Government  of  the  United  States  respectfully  submits  that  inquiries  related  to 
allegations  stemming  from  any  military  operations  conducted  during  the  course  of  an 
armed  conflict  with  Al  Qaida  do  not  fall  within  the  mandate  of  the  Special  Rapporteur. 


Al  Qaida  and  related  terrorist  networks  are  at  war  with  the  United  States 

Despite  coalition  success  in  Afghanistan  and  around  the  world,  the  war  is  far  from 
over.  The  Al  Qaida  network  today  is  a  multinational  enterprise  with  operations  in 
more  than  60  countries.1 


*  Associate  Professor  of  Law,  South  Texas  College  of  Law. 


Making  the  Case  for  Conflict  Bifurcation  in  Afghanistan 

This  assertion  of  the  existence  of  an  armed  conflict  between  al  Qaida  and  the 
United  States  was  both  clear  and  emphatic,  specifically  rejecting  the  proposition 
that  the  killing  was  governed  by  human  rights  norms.  It  also  represents  what  many 
believe  is  a  radical  theory  of  law:  that  an  armed  conflict  can  exist  between  a  State 
and  a  transnational  non-State  entity.2 

In  no  location  has  this  latter  proposition  been  more  contested  than  in  Afghan- 
istan. Although  al  Qaida  may  very  well  operate  in  over  sixty  countries  around  the 
world,  the  reality  is  that  almost  all  the  US  military  effort  directed  against  that  en- 
emy has  occurred  in  Afghanistan,  where  much  of  that  effort  has  been  intertwined 
with  the  effort  to  defeat  the  Taliban  armed  forces.  Because  of  the  contiguous  na- 
ture of  these  operations,  most  scholars  and  law  of  armed  conflict  (LOAC)  experts 
have  asserted  from  the  outset  of  Operation  Enduring  Freedom  that  operations 
directed  against  al  Qaida  in  Afghanistan  are  subsumed  within  the  broader  armed 
conflict  in  Afghanistan.  Accordingly,  they  reject  categorically  the  suggestion  that 
there  was,  or  is,  in  Afghanistan  a  distinct  armed  conflict  between  the  United 
States  and  al  Qaida.3  Instead,  operations  directed  against  al  Qaida  were  initially 
just  a  component  of  the  broader  international  armed  conflict  between  the  US-led 
coalition  and  the  Taliban  regime,  and  thereafter  of  the  non-international  armed 
conflict  between  the  Kharzai  government  and  its  coalition  backers  and  the  rem- 
nants of  the  Taliban. 

But  if  the  premise  asserted  in  the  US  response  excerpted  above  is  valid — that  an 
armed  conflict  does  exist  between  the  United  States  and  al  Qaida — the  question  of 
the  nature  of  that  conflict  in  Afghanistan  is  arguably  more  complex.  By  staking  out 
a  new  category  of  armed  conflict,  what  I  have  labeled  in  previous  articles  as  trans- 
national armed  conflict,  the  United  States  created  the  potential  to  treat  the  contig- 
uous conflicts  in  Afghanistan  as  distinct. 

Such  a  theory  of  conflict  bifurcation  has  potentially  profound  consequences.  If 
there  was  and  is  only  one  armed  conflict  in  Afghanistan,  then  rights  and  obliga- 
tions related  to  al  Qaida  operatives  must  be  analyzed  under  the  regulatory  regime 
related  to  that  broader  conflict.  This  would  impact  a  wide  array  of  legal  issues, 
ranging  from  status  of  detainees,  transferability  and  command  responsibility  to  ju- 
risdiction related  to  criminal  sanction  for  violation  of  the  LOAC.  If,  in  contrast,  the 
conflict  between  the  United  States  and  al  Qaida  occurring  in  Afghanistan  is  treated 
as  distinct  from  the  conflicts  related  to  the  Taliban,  a  far  more  uncertain  legal 
framework  would  dictate  a  distinct  package  of  rights  and  obligations  vis-a-vis  al 
Qaida.  This  framework  would  be,  at  best,  composed  of  general  LOAC  principles, 
perhaps  supplemented  by  policy  extension  of  conventional  LOAC  provisions.4 

This  article  will  analyze  the  two  primary  impediments  to  recognizing  such  a  bifur- 
cated conflict  theory.  The  first  of  these  is  related  to  recognition  in  the  context  of  an 

182 


Geoffrey  S.  Corn 


international  armed  conflict — that  in  such  a  context  al  Qaida  is  properly  and  ex- 
clusively treated  as  a  militia  or  volunteer  group  associated  with  the  Taliban  armed 
forces.  The  second  is  related  to  recognition  in  the  context  of  a  non-international 
armed  conflict — that  unless  al  Qaida  is  an  element  of  the  insurgent  forces  fighting 
against  the  Kharzai  government,  operations  conducted  against  al  Qaida  cannot  be 
characterized  as  armed  conflict  but  must  instead  be  characterized  as  extraterrito- 
rial law  enforcement. 

A  theory  of  bifurcated  armed  conflict  is  concededly  unconventional.  Even  if 
such  a  theory  is  viable  in  the  abstract,  it  is  particularly  problematic  in  relation  to  the 
conflict  in  Afghanistan.  This  is  because  of  the  unavoidable  reality  that  unlike  the 
type  of  "one  off  operations  exemplified  by  the  Predator  strike  that  generated  the 
Department  of  State  assertion  above,  operations  in  Afghanistan  directed  against  al 
Qaida  are  geographically  and  often  operationally  contiguous  with  those  directed 
against  the  Taliban.  Further  complicating  the  theory  is  that  operations  conducted 
by  al  Qaida  were,  and  are  often  are,  intertwined  with  those  conducted  by  the 
Taliban.  However,  these  complicating  realities  only  highlight  the  ultimate  ques- 
tion: does  all  this  mean  that  the  legal  character  of  the  armed  conflicts  themselves 
must  be  contiguous?  It  is  precisely  because  the  United  States  has  asserted  the  exis- 
tence of  a  distinct  armed  conflict  with  al  Qaida  that  this  question  must  be  critically 
considered. 

Transnational  Armed  Conflict:  Has  Reality  Outpaced  Legality? 

Defining  the  nature  of  the  armed  conflict  against  al  Qaida — if  there  can  be  such  an 
armed  conflict — is  obviously  critical  to  this  analysis.  As  I  have  asserted  in  previous 
articles,5  the  traditionally  understood  law-triggering  paradigm  that  evolved  from 
the  development  of  Common  Articles  2  and  3  of  the  Geneva  Conventions  proved 
insufficient  to  respond  to  the  need  for  battlefield  regulation  of  counterterror  com- 
bat operations.6  These  operations,  particularly  those  conducted  in  response  to  the 
attacks  of  September  11,  2001  reflect  the  reality  that  the  basic  regulatory  frame- 
work of  the  law  of  armed  conflict  must  be  triggered  by  any  armed  conflict.  Because 
this  is  the  critical  predicate  for  the  application  of  a  bifurcated  conflict  theory  to  Af- 
ghanistan, this  section  (reproduced  with  light  edits  from  my  prior  article, 
"Hamdan,  Lebanon,  and  the  Regulation  of  Armed  Conflict:  The  Need  to  Recog- 
nize a  Hybrid  Category  of  Armed  Conflict"7)  will  explain  the  underlying  rationale 
for  a  transnational,  or  any,  armed  conflict  theory. 

The  "either/or"  law- triggering  paradigm  of  Common  Articles  2  and  38  proved 
generally  sufficient  to  address  the  types  of  armed  conflicts  occurring  up  until  9/11. 
However,  this  fact  no  longer  justifies  the  conclusion  that  no  other  triggering 

183 


Making  the  Case  for  Conflict  Bifurcation  in  Afghanistan 

standard  should  be  recognized.  Instead,  as  the  events  since  9/11  have  illustrated  so 
convincingly,  such  recognition  is  essential  in  order  to  keep  pace  with  the  evolving 
nature  of  armed  conflicts  themselves.  The  prospect  of  an  unregulated  battlefield  is 
simply  unacceptable  in  the  international  community,  a  fact  demonstrated  by  the 
response  to  the  conflict  in  Lebanon.9  The  ultimate  question,  therefore,  is  whether  it 
is  best  to  continue  to  try  and  fit  the  proverbial  square  "armed  conflict"  peg  into  the 
round  "Common  Article  3"  hole,  or  whether  the  time  has  come  to  acknowledge 
that  the  essential  trigger  for  application  of  basic  LOAC  principles  is  just  armed  con- 
flict, irrespective  of  the  enemy  or  the  location. 

The  stress  on  the  existing  paradigm  of  law  of  war  application  reflected  in  the  di- 
verging conclusions  of  both  the  DC  Circuit  and  the  Supreme  Court  in  the  Hamdan 
case  is  in  no  way  fatal  to  the  ability  of  the  law  to  adapt  to  the  necessities  of  the 
changing  nature  of  warfare.  All  law  is  adaptive,  but  this  is  particularly  true  with  re- 
gard to  the  LOAC,  a  conclusion  illustrated  by  the  fact  that  this  law  has  endured  for 
centuries.  This  area  of  international  legal  regulation  has  been  historically  resilient 
precisely  because  the  law  has  always  responded  to  the  changes  in  the  nature  of  war- 
fare. Perhaps  more  importantly,  these  responses  have  been  implemented  in  a  man- 
ner considered  credible  by  States  and  the  armed  forces  called  upon  to  execute 
military  conflicts. 

It  is  essential  that  the  applicability  of  the  principles  of  the  laws  of  war — principles 
that  operate  to  limit  the  brutality  of  war  and  mitigate  the  suffering  of  victims  of 
war — not  be  restricted  by  an  overly  technical  legal  triggering  paradigm.  Accord- 
ingly, the  ongoing  evolution  in  the  nature  of  warfare  requires  acknowledgment 
that  any  armed  conflict  triggers  the  foundational  principles  of  the  laws  of  war.  If 
this  outcome  is  achieved  by  characterizing  such  military  operations  as  "Common 
Article  3"  conflicts  that  trigger  the  humane  treatment  obligation  plus  additional 
customary  LOAC  principles,  the  regulatory  purpose  of  the  law  can  be  achieved. 
However,  because  Common  Article  3  conflicts  have  become  generally  synony- 
mous with  internal  conflicts,  it  is  more  pragmatic  to  expressly  endorse  a  hybrid  cat- 
egory of  armed  conflict:  transnational  armed  conflict.10 

The  recognition  of  this  "hybrid"  category  would  not  render  Common  Articles  2 
or  3  irrelevant.  Instead,  these  articles  would  continue  to  serve  as  triggers  for  appli- 
cation of  the  treaty  provisions  to  which  they  relate.  But  this  new  category  would  be 
responsive  to  the  rapidly  changing  nature  of  warfare,  a  change  that  creates  an  in- 
creased likelihood  that  States  will  resort  to  the  use  of  combat  power  to  respond  to 
threats  posed  by  non-State  armed  entities  operating  outside  their  territory.  Such 
armed  conflicts  justify  a  more  precise  interpretation  of  the  de  facto  conditions  that 
trigger  the  foundational  principles  of  the  laws  of  war,  supporting  the  conclusion 
that  any  de  facto  armed  conflict  serves  as  such  a  trigger.  Common  Articles  2  and  3 

184 


Geoffrey  S.  Corn 


would  then  serve  to  trigger  layers  of  more  defined  regulation  in  some  ways  redun- 
dant to,  and  in  other  ways  augmenting,  these  principles.  This  "layered"  methodol- 
ogy will  ensure  no  conflict  falls  outside  the  scope  of  essential  baseline  regulation, 
while  preserving  the  technical  triggers  for  more  detailed  regulation  required  by  ap- 
plication of  specific  treaty  provisions. 

This  bifurcated  methodology  of  distinguishing  between  treaty  provisions  per  se 
and  the  principles  providing  the  foundation  for  these  treaty  provisions  was  an  es- 
sential aspect  of  the  first  major  international  war  crimes  trial  since  the  advent  of 
Common  Articles  2  and  3.  In  the  seminal  decision  defining  the  jurisdiction  of  the 
first  international  war  crimes  tribunal  since  World  War  II,  Prosecutor  v.  Tadic}1  the 
International  Criminal  Tribunal  for  the  former  Yugoslavia  (ICTY),  an  ad  hoc  war 
crimes  court  created  by  the  United  Nations  Security  Council  to  prosecute  alleged 
war  criminals  from  the  conflict  that  followed  the  breakup  of  the  former  Yugoslavia, 
relied  on  a  similar  methodology.  The  Tribunal  was  able  to  sustain  many  war  crimes 
allegations  only  by  extending  to  the  realm  of  non- international  armed  conflict  fun- 
damental principles  of  the  laws  of  war  derived  from  treaty  articles  applicable  only 
to  international  armed  conflicts.12  According  to  this  seminal  decision,  the  require- 
ments for  application  of  individual  criminal  responsibility  under  Article  3  of  its 
Statute  (vesting  the  Tribunal  with  competence  to  adjudicate  violations  of  the  laws 
or  customs  of  war)  were  that  "(i)  the  violation  must  constitute  an  infringement  of  a 
rule  of  international  humanitarian  law"  and  "(ii)  the  rule  must  be  customary  in  na- 
ture or,  if  it  belongs  to  treaty  law,  the  required  conditions  must  be  met . . .  ,"13  Ac- 
cordingly, the  Tribunal  relied  on  this  methodology  to  fill  a  regulatory  gap  essential 
to  establish  individual  criminal  responsibility  in  relation  to  the  armed  conflict,  the 
exact  same  logic  that  supports  a  further  reliance  on  this  methodology  to  regulate 
transnational  armed  conflicts. 

The  pragmatic  logic  of  adopting  an  ipso  facto  application  of  these  fundamental 
principles  to  any  armed  conflict  suggested  in  the  Tadic  ruling  has  also  been  at  the 
core  of  US  military  policy  for  decades.  It  also  provided  the  ratio  decidendi  for  the 
Hamdan  majority  holding  that  the  principle  of  humane  treatment  applied  to  the 
armed  conflict  between  the  United  States  and  al  Qaida.  The  Hamdan  majority  en- 
dorsed a  modified  version  of  the  Common  Article  2/3  "either/or"  paradigm.  The 
scope  of  international  armed  conflict  defined  by  Common  Article  2  was  left  intact. 
However,  instead  of  endorsing  the  intra-State  qualifier  to  the  alternate  "type"  of 
armed  conflict,  the  Court  concluded  that  the  term  "non-international"  as  used  in 
Common  Article  3  operates  in  juxtaposition  to  international  armed  conflicts,  and 
therefore  covers  all  armed  conflicts  falling  outside  the  scope  of  Common  Article  2. 
Accordingly,  the  Court  determined  that  a  non-international  armed  conflict 


185 


Making  the  Case  for  Conflict  Bifurcation  in  Afghanistan 

includes  the  traditional  category  of  internal  armed  conflicts,  but  also  extraterrito- 
rial armed  conflicts  between  a  State  and  non-State  forces.  As  Justice  Stevens  noted: 

The  Court  of  Appeals  thought,  and  the  Government  asserts,  that  common  article  3 
does  not  apply  to  Hamdan  because  the  conflict  with  al  Qaeda,  being  "'international  in 
scope,'"  does  not  quality  as  a  '"conflict  not  of  an  international  character.'"  That 
reasoning  is  erroneous.  The  term  "conflict  not  of  an  international  character"  is  used 
here  in  contradistinction  to  a  conflict  between  nations.  So  much  is  demonstrated  by 
the  "fundamental  logic  [of]  the  Convention's  provisions  on  its  application."  Common 
article  2  provides  that  "the  present  Convention  shall  apply  to  all  cases  of  declared  war 
or  of  any  other  armed  conflict  which  may  arise  between  two  or  more  of  the  High 
Contracting  Parties."  High  Contracting  Parties  (signatories)  also  must  abide  by  all 
terms  of  the  Conventions  vis-a-vis  one  another  even  if  one  party  to  the  conflict  is  a 
nonsignatory  "Power,"  and  must  so  abide  vis-a-vis  the  nonsignatory  if  "the  latter 
accepts  and  applies"  those  terms.  Common  article  3,  by  contrast,  affords  some 
minimal  protection,  falling  short  of  full  protection  under  the  Conventions,  to 
individuals  associated  with  neither  a  signatory  nor  even  a  nonsignatory  "Power"  who 
are  involved  in  a  conflict  "in  the  territory  of  a  signatory.  The  latter  kind  of  conflict  is 
distinguishable  from  the  conflict  described  in  common  article  2  chiefly  because  it  does 
not  involve  a  clash  between  nations  (whether  signatories  or  not).  In  context,  then,  the 
phrase  "not  of  an  international  character"  bears  its  literal  meaning.14 

This  interpretation  of  the  scope  of  Common  Article  3  was  the  essential  predicate  to 
the  Court's  holding  that  the  procedures  established  by  the  President  for  the  mili- 
tary commission  violated  the  laws  of  war.  It  is  also  thoroughly  consistent  with  the 
view  that  all  situations  of  armed  conflict  require  regulation,  the  view  that  has  moti- 
vated US  military  policy  for  decades. 

Recognition  that  combat  is  an  endeavor  that  must  trigger  an  effective  regulatory 
framework  is  derived  from  a  long-standing  history  of  self-imposed  regulatory 
codes  adopted  by  professional  armed  forces.  As  is  suggested  by  A.P.V.  Rogers  in  his 
book  Law  on  the  Battlefield,15  prior  to  the  development  of  the  legal  "triggering 
mechanisms"  controlling  application  of  this  regulatory  framework,  armed  forces 
did  not  appear  to  consider  "conflict  typing"  as  an  essential  predicate  for  operating 
within  the  limits  of  such  a  framework.  While  it  is  true  that  throughout  most  of  his- 
tory this  framework  took  the  form  of  self-imposed  limits  on  warrior  conduct,16 
these  limits  provided  the  seeds  for  what  are  today  regarded  as  the  foundational 
principles  of  the  laws  of  war.17  Thus,  the  pragmatic  military  logic  reflected  in  both 
the  Hamdan  decision  and  the  Department  of  Defense  law  of  war  policy  is  deeply 
rooted  in  the  history  of  warfare. 

This  history  undoubtedly  includes  examples  of  combat  operations  conducted 
by  the  regular  armed  forces  of  States  against  non-State  armed  groups  prior  to  the 


186 


Geoffrey  S.  Corn 


development  of  Common  Article  3.  These  operations  ranged  from  colonial  expe- 
ditions to  what  would  today  be  characterized  as  "coalition"  operations,  such  as  the 
multinational  response  to  the  Boxers  in  China.  In  his  book  Savage  Wars  of  Peace}2, 
Max  Boot  provides  several  examples  of  such  combat  operations  conducted  by  the 
armed  forces  of  the  United  States  prior  to  the  Second  World  War,  ranging  from  the 
conflict  against  the  Barbary  Pirates  to  the  punitive  expedition  against  Pancho  Villa. 
Armed  forces  executing  such  operations  must  have  invoked  what  today  would  be 
characterized  as  the  principle  of  military  necessity,  asserting  the  authority  to  take 
all  measures  not  forbidden  by  international  law  necessary  to  achieve  the  prompt 
submission  of  their  opponents.  However,  these  forces  must  have  also  respected 
what  would  today  be  regarded  as  the  principle  of  humanity,  as  understood  in  his- 
torical context.19  While  the  nature  of  the  constraint  on  the  conduct  of  these  opera- 
tions may  have  been  understood  more  in  terms  of  "chivalry"  and  less  in  terms  of 
law,20  the  basic  premise  that  runs  through  this  history  to  the  contemporary  battle- 
field is  that  combat  operations  trigger  a  framework  of  regulation  necessary  for  dis- 
ciplined operations.  Today,  this  framework  is  best  understood  not  in  terms  of  a 
chivalric  code,  but  in  terms  of  compliance  with  the  principles  of  necessity,  human- 
ity, distinction  and  the  prohibition  against  inflicting  unnecessary  suffering.21 

It  is,  of  course,  improper  to  assert  that  the  pre- 1949  history  of  military  opera- 
tions supports  a  conclusion  that  armed  forces  regarded  such  operations  as  trigger- 
ing legal  obligations.  On  the  contrary,  the  international  legal  character  of  the  laws 
of  war  in  relation  to  contemporary  warfare  was  based  primarily  on  treaties  that  ap- 
plied to  conflicts  between  States.  This  point  is  emphasized  by  Professor  Green  in 
his  book  The  Contemporary  Law  of  Armed  Conflict: 

Historically,  international  law  was  concerned  only  with  the  relations  between  states.  As 
a  result,  the  international  law  of  armed  conflict  developed  in  relation  to  inter-state 
conflicts  was  not  in  any  way  concerned  with  conflicts  occurring  within  the  territory  of 
any  state  or  with  a  conflict  between  an  imperial  power  and  a  colonial  territory.22 

However,  this  history  does  suggest  that  the  seeds  that  grew  into  the  foundational 
principles  of  the  contemporary  laws  of  war  extended  to  the  realm  of  internal  armed 
conflict  by  the  Tadic  ruling  and  applied  to  all  US  military  operations  by  way  of  pol- 
icy were  derived  from  these  internal  military  codes.  Indeed,  the  fact  that  the  con- 
temporary laws  of  war  find  their  origins  in  the  practices  of  armed  forces  is  also 
highlighted  by  Professor  Green:  "the  law  of  armed  conflict  is  still  governed  by  those 
principles  of  international  customary  law  which  have  developed  virtually  since 
feudal  times "23  It  therefore  seems  significant  that  armed  forces  did  not  histori- 
cally qualify  application  of  these  internal  codes  of  conflict  regulation  on  the 


187 


Making  the  Case  for  Conflict  Bifurcation  in  Afghanistan 

character  of  the  armed  conflict.  Nor  can  it  be  legitimately  asserted  that  armed 
forces  bound  by  such  internal  codes  were  employed  exclusively  in  the  realm  of 
State-versus-State  conflict.  While  this  may  have  been  the  most  common  type  of 
their  combat  operations,  the  history  of  the  nineteenth  and  twentieth  centuries  also 
include  military  engagements  falling  outside  this  category.24 

Nonetheless,  the  historical  context  of  the  range  of  combat  operations  engaged 
in  by  regular  armed  forces  during  this  critical  period  of  legal  development  is  signif- 
icant when  assessing  appropriate  scope  of  application  of  the  contemporary  princi- 
ples of  the  laws  of  war.  This  history  supports  the  inference  that  regular  armed 
forces  historically  viewed  combat  operations — or  armed  conflict — as  an  ipso  facto 
trigger  for  principles  that  regulated  combatant  conduct  on  the  battlefield.  This  his- 
tory is  also  instructive  in  exposing  the  fact  that  this  "basic  framework"  concept  was 
severely  strained  during  the  years  between  the  First  and  Second  World  Wars.  This 
strain  was  exacerbated  by  the  fact  that  the  scope  of  the  emerging  treaty-based  regu- 
latory regime  was  strictly  limited  to  "war,"  which  was  understood  in  the  classic 
terms  of  a  contention  between  States.25 

In  this  regard,  it  also  seems  relevant  that  even  Common  Article  2  was  a  response 
to  a  perceived  failure  of  the  traditional  expectation  that  armed  forces  would  apply  a 
regulatory  framework  derived  from  either  the  laws  and  customs  of  war  or  internal 
disciplinary  codes  when  engaged  in  "war"  between  States.26  The  rejection  of  "war" 
as  a  trigger  for  application  of  the  laws  of  war  during  inter-State  conflicts  in  favor  of 
the  "armed  conflict"  trigger  was  an  attempt  to  prevent  what  one  might  understand 
as  "bad  faith  avoidance"  of  compliance  with  the  customary  standards  related  to  the 
jus  in  bello.27  The  qualifier  of  "international"  was,  as  indicated  in  the  International 
Committee  of  the  Red  Cross  (ICRC)  Commentary,  an  effort  to  emphasize  that  spe- 
cific provisions  of  the  Geneva  Conventions  were  triggered  by  armed  conflicts  con- 
ducted under  State  authority.28  However,  as  that  same  Commentary  indicates,  it  is 
the  "armed  conflict"  aspect  of  military  operations  that  distinguish  such  activities — 
and  the  law  that  regulates  them — from  the  wide  range  of  government  activities  not 
involving  the  application  of  combat  power  by  armed  forces.  It  is  therefore  thor- 
oughly consistent  with  the  purpose  and  history  of  the  Geneva  Conventions  to  place 
principal  emphasis  on  the  existence  of  armed  conflict  when  assessing  the  appropri- 
ate trigger  for  the  foundational  principles  reflected  in  those  and  other  law  of  war 
treaties. 

This  general  concept — that  the  need  to  provide  effective  regulation  of  de  facto 
armed  conflicts  warrants  resort  to  foundational  principles  reflected  in  treaties  that 
are  technically  inapplicable  to  a  given  conflict — was  also  endorsed  by  the  Interna- 
tional Criminal  Tribunal  for  the  former  Yugoslavia.  In  Prosecutor  v.  Tadic,29  the 
Tribunal  held  that  "an  armed  conflict  exists  whenever  there  is  a  resort  to  armed 


188 


Geoffrey  S.  Corn 

force  between  States  or  protracted  armed  violence  between  governmental  au- 
thorities and  organized  armed  groups  or  between  such  groups  within  a  State."30 
Of  course,  because  the  question  before  this  Tribunal  dealt  with  application  of  the 
laws  of  war  to  international  and/or  internal  armed  conflict,  or  a  combination 
thereof,  the  significance  of  this  language  is  primarily  related  to  these  traditional 
categories  of  armed  conflict.31  What  was  far  more  significant  about  this  decision 
was  the  recognition  that  non-international  armed  conflicts  trigger  a  regime  of 
regulation  more  comprehensive  than  only  humane  treatment.  In  ruling  on  the 
obligations  applicable  to  participants  in  such  non-international  armed  conflicts 
that  provide  a  basis  for  individual  criminal  responsibility,  the  Tribunal  looked 
beyond  the  humane  treatment  mandate  of  Common  Article  3.  In  addition  to  this 
obligation,  the  Tribunal  concluded  that  many  of  the  fundamental  rules  related  to 
the  methods  and  means  of  warfare  applicable  in  international  armed  conflicts 
had  evolved  to  apply  as  a  matter  of  customary  international  law  to  non-interna- 
tional armed  conflicts.32  While  the  Tribunal  noted  that  this  evolution  did  not  re- 
sult in  a  "mechanical  transfer"  of  rules  from  one  category  of  armed  conflict  to  the 
other,  this  ruling  clearly  encompassed  what  are  characterized  by  many  sources  as 
the  foundational  principles  of  the  law  of  war.33  According  to  the  ruling,  these 
principles 

cover  such  areas  as  protection  of  civilians  from  hostilities,  in  particular  from 
indiscriminate  attacks,  protection  of  civilian  objects,  in  particular  cultural  property, 
protection  of  all  those  who  do  not  (or  no  longer)  take  active  part  in  hostilities,  as  well  as 
prohibition  of  means  of  warfare  proscribed  in  international  armed  conflicts  and  ban  of 
certain  methods  of  conducting  hostilities.34 

The  wisdom  of  the  Tadic  judgment  recognizing  the  necessity  of  extending  prin- 
ciples originally  associated  with  international  armed  conflicts  into  the  realm  of 
non-international  armed  conflict  logically  extends  to  both  internal  and  transna- 
tional armed  conflicts.  Indeed,  there  seemed  to  be  virtually  no  hesitation  among  legal 
scholars  and  diplomatic  officials  for  demanding  application  of  these  principles  to 
the  recent  conflict  in  Lebanon.35  Obviously,  the  alternate  was  unthinkable — that 
intense  combat  operations  could  fall  beyond  the  scope  of  any  legal  regulation.  Nor 
would  application  of  the  Hamdan  ruling  satisfy  the  perceived  necessity  to  regulate 
such  a  conflict,  as  that  ruling  in  no  way  addressed  application  of  principles  regulat- 
ing the  methods  and  means  of  warfare.  Instead,  the  reaction  to  the  conflict  indi- 
cated an  emerging  international  expectation  that  participants  in  such  conflicts — 
and  especially  State  forces — would  be  legally  bound  to  comply  with  a  range  of  law 


189 


Making  the  Case  for  Conflict  Bifurcation  in  Afghanistan 

of  war  principles  intended  to  mitigate  the  suffering  inflicted  by  combat  operations. 
This  evolution  is  achieving  the  imperative  proposed  below  by  Professor  Roberts: 

[I]n  anti-terrorist  military  operations,  certain  phases  and  situations  may  well  be 
different  from  what  was  envisaged  in  the  main  treaties  on  the  laws  of  war.  They  may 
differ  from  the  provisions  for  both  international  and  non-international  armed  conflict. 
Recognising  that  there  are  difficulties  in  applying  international  rules  in  the  special 
circumstances  of  anti-terrorist  war,  the  attempt  can  and  should  nevertheless  be  made 
to  apply  the  law  to  the  maximum  extent  possible.36 

In  short,  the  logic  animating  the  Department  of  Defense  law  of  war  policy,  first 
extended  to  the  realm  of  internal  armed  conflicts  by  the  Tadic  Tribunal,  had  been 
further  extended  to  the  realm  of  transnational  armed  conflicts.  This  evolution  es- 
sentially treats  the  foundational  principles  of  the  law  of  armed  conflict  as  a  layer  of 
regulation  upon  which  more  comprehensive  treaty  regimes  are  built.  In  so  doing,  it 
addresses  the  pragmatic  necessity  of  regulation  of  de  facto  armed  conflicts,  while 
preserving  the  continuing  significance  of  the  Common  Article  2  applicability 
criteria. 

The  Contiguous  Conflict  Dilemma: 
Does  Any  Association  Create  a  Unified  Armed  Conflict? 

Acknowledging  that  certain  military  operations  conducted  by  the  United  States 
against  al  Qaida  trigger  basic  LOAC  principles  does  not  in  and  of  itself  mandate  a 
bifurcated  conflict  approach  to  Afghanistan.  Instead,  the  viability  of  a  distinct  con- 
flict theory  vis-a-vis  al  Qaida  mandates  analysis  of  whether  the  facts  related  to  op- 
erations in  Afghanistan  render  such  operations  under  this  category  or  under  the 
broader  category  of  the  armed  conflict  against  the  Taliban.  This  analysis  must  then 
turn  on  the  relationship  between  al  Qaida  in  Afghanistan  and  the  Taliban. 

The  LOAC,  specifically  Article  4A(2)  of  the  Third  Geneva  Convention  Relative 
to  the  Treatment  of  Prisoners  of  War  (GPW),  specifically  addresses  the  status  of 
militia  or  volunteer  corps  personnel  associated  with  a  State  party  to  an  interna- 
tional armed  conflict.  That  article  provides  that  so  long  as  certain  conditions  are 
satisfied,  such  personnel  are  to  be  treated  as  prisoners  of  war  upon  capture,  sug- 
gesting that  their  status  is  no  different  from  that  of  members  of  the  armed  forces. 
This  in  turn  suggests  that  such  militia  and  volunteer  corps  personnel  are  essentially 
connected  to  the  international  armed  conflict  triggering  application  of  the  conven- 
tion and  Article  4. 

This  provision  provides  the  strongest  basis  to  assert  a  unified  armed  conflict 
theory  for  Afghanistan.  Indeed,  this  is  the  conventional  approach  to  addressing  the 

190 


Geoffrey  S.  Corn 


conflict  classification  issue  related  to  al  Qaida.  The  logic  of  this  unified  conflict  the- 
ory is  quite  simple:  Article  4  provides  a  basis  to  treat  militia  or  volunteer  corps  per- 
sonnel as  prisoners  of  war;  this  suggests  that  such  personnel  are  connected  to  the 
international  armed  conflict  triggering  Article  4;  accordingly,  their  treatment  pur- 
suant to  Article  4  indicates  that  their  operations  must  be  within  the  context  of  the 
broader  international  armed  conflict. 

While  this  logic  is  certainly  appealing,  it  has  unquestionably  been  undermined 
by  the  emergence  of  a  transnational  armed  conflict  theory.  Prior  to  this  develop- 
ment in  the  law,  the  presumption  that  armed  groups  operating  in  association  with 
a  State  party  to  a  conflict  were  part  of  that  international  armed  conflict  was  conclu- 
sive, because  no  alternate  theory  of  armed  conflict  could  apply  to  such  groups. 
However,  if  it  is  conceptually  possible  that  such  groups  can  be  involved  in  a  distinct 
armed  conflict  with  the  State  party  opposing  the  forces  with  which  they  are  associ- 
ated, this  presumption  can  no  longer  be  considered  conclusive,  but  is  instead 
better  understood  as  rebuttable. 

It  therefore  seems  more  appropriate  to  treat  al  Qaida  personnel  operating  in  Af- 
ghanistan in  association  with  the  Taliban  as  presumptively  part  of  the  international 
armed  conflict  between  the  United  States  and  Afghanistan.  Pursuant  to  this  pre- 
sumption, the  status  and  treatment  of  captured  al  Qaida  personnel  would  be  pur- 
suant to  Article  4A(2)  of  the  GPW:  if  they  met  the  express  qualification 
requirements  of  that  article  they  were  prisoners  of  war;  if  they  did  not  they  were  ci- 
vilians who  had  taken  part  in  hostilities  (with  all  the  targeting  and  liability  conse- 
quences that  flow  from  such  participation).  Was  there,  however,  a  legitimate  basis 
to  treat  this  presumption  as  rebutted?  Answering  this  question  requires  consider- 
ation of  the  underlying  purpose  and  meaning  of  the  "associated  militia"  provision 
of  the  GPW. 

Article  4A(2)  of  the  GPW  was  developed  for  a  very  clear  purpose:  to  ensure  that 
individuals  fighting  on  behalf  of  a  party  to  an  international  armed  conflict  who  met 
certain  qualification  conditions  could  claim  the  protections  of  prisoner  of  war  sta- 
tus. The  ICRC  Commentary  to  this  provision  indicates  that  the  primary  source  of 
disagreement  among  delegates  to  the  drafting  conference  was  the  treatment  of  par- 
tisan and  resistance  groups  in  occupied  territories.  However,  one  aspect  of  the  de- 
velopment of  this  provision  seems  clear:  there  is  no  disagreement  that  any 
organized  group  claiming  the  benefit  of  Article  4  must  be  fighting  on  behalf  of  a 
State  party.  According  to  the  Commentary 

[i]t  is  essential  that  there  should  be  a  de  facto  relationship  between  the  resistance 
organization  and  the  party  to  international  law  which  is  in  a  state  of  war,  but  the 
existence  of  this  relationship  is  sufficient.  It  may  find  expression  merely  by  tacit 


191 


Making  the  Case  for  Conflict  Bifurcation  in  Afghanistan 

agreement,  if  the  operations  are  such  as  to  indicate  clearly  for  which  side  the  resistance 
organization  is  fighting.37 

Thus,  while  such  a  relationship  need  not  take  the  form  of  a  formal  agreement  or 
declaration,  it  is  clear  that  the  militia  must  be  operating  on  behalf  of  the  State.  As 
the  Commentary  notes,  organized  militia  groups  that  are  not  fighting  on  behalf  of  a 
party  to  the  conflict  do  not  benefit  from  Article  4,  but  instead  "the  provisions  of 
Article  3  relating  to  non-international  conflicts  are  applicable,  since  such  militias 
and  volunteer  corps  are  not  entitled  to  style  themselves  a  'Party  to  the  conflict.'"38 
This  comment  seems  to  explicitly  recognize  that  geographically  contiguous  armed 
conflicts  are  indeed  subject  to  legal  bifurcation. 

The  emphasis  of  connection  to  a  State  party  is  also  manifest  in  the  provision  of 
Article  4  granting  prisoner  of  war  status  to  members  of  armed  forces  fighting  on 
behalf  of  a  belligerent  State  authority  not  recognized  by  an  opponent  State.  Treat- 
ment of  such  individuals  apparently  did  not  generate  disagreement  among  the  del- 
egates to  the  drafting  sessions,  precisely  because  it  was  clear  the  belligerent  conduct 
of  such  forces  was  conducted  on  behalf  of  a  de  facto  State  authority: 

At  the  Conference  of  Government  Experts,  delegations  immediately  approved  the 
International  Committee's  proposal  for  a  special  clause  to  cover  "members  of  armed 
forces  claiming  to  be  under  an  authority  not  recognized  by  the  enemy."  It  was  feared, 
however,  that  the  proposal  might  be  open  to  abusive  interpretation,  and  the 
Conference  therefore  decided  to  add  that  such  forces  must,  in  order  to  benefit  by  the 
Convention,  be  fighting  "in  conjunction"  with  a  State  recognized  as  a  belligerent  State 
by  the  enemy.39 

This  express  "in  conjunction"  language  was  removed  in  subsequent  drafts,  but 
only  because  it  was  clear  that  the  situation  that  motivated  the  provision — the  treat- 
ment of  forces  fighting  on  behalf  of  the  Free  French  authority  during  World  War 
II — made  it  clear  that  the  provision  would  only  be  applicable  when  the  "in  con- 
junction" component  was  satisfied.  Accordingly,  the  significance  of  fighting  on  be- 
half of  a  "State"  remained  the  sine  qua  non  for  such  application. 

Few  experts  would  likely  dispute  the  conclusion  that  fighting  on  behalf  of  a  State 
party  is  a  condition  precedent  to  application  of  Article  4  of  the  GPW.  However, 
what  exactly  does  this  mean?  Unfortunately,  the  ICRC  Commentary  provides  vir- 
tually no  guidance,  a  likely  result  of  the  fact  that  the  primary  concern  for  the  draft- 
ers at  the  time  Article  4  was  revised  was  not  this  condition,  but  the  four  "combatant 
qualification"  conditions  required  by  Article  4A(2).  However,  the  lack  of  discus- 
sion on  this  condition  does  not  justify  the  conclusion  that  it  has  no  substantive 
meaning. 


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Geoffrey  S,  Corn 


What  does  seem  clear  from  the  spirit  and  purpose  of  Article  4  is  that  the  associa- 
tion of  an  organized  militia  group  to  a  State  party  must  be  more  than  merely  inci- 
dental. Simple  geographic  continuity  of  operations  does  not  in  itself  seem  to  rise 
above  the  concept  of  incidental  association,  a  fact  implicitly  acknowledged  by  the 
Commentary  when  it  indicates  that  some  militia  groups  might  fall  under  the  non- 
international  armed  conflict  legal  regime.  However,  does  a  shared  operational  ob- 
jective suffice  to  move  beyond  incidental  association  to  the  type  of  association  re- 
quired to  trigger  Article  4?  In  the  opinion  of  this  author,  the  answer  is  no. 

The  "on  behalf  of  language  used  by  the  ICRC  Commentary  to  explain  the 
meaning  of  article  4A(2)  suggests  more  than  a  shared  operational  objective;  it  sug- 
gests that  the  militia  or  volunteer  group  be  seeking  to  achieve  that  objective  for  the 
primary  purpose  of  contributing  to  the  State's  strategic  objective.  Thus,  for  a  mili- 
tia group  to  be  operating  "on  behalf  of  a  State  party,  its  operations  must  be 
"nested"  within  the  strategic  and  operational  objectives  of  the  State  and  its  regular 
armed  forces.  If  the  militia  group  is  operating  for  the  purpose  of  achieving  its  own 
independent  strategic  objectives,  the  mere  fact  that  some  of  these  objectives  might 
be  shared  by  the  State  party,  or  that  the  operational  implementation  of  these  dis- 
tinct objectives  leads  the  militia  group  to  collaborate  with  the  State  party  in  tactical 
execution,  does  not  warrant  the  conclusion  that  it  is  operating  on  behalf  of  the 
State. 

There  is  a  legitimate  argument  that  it  was  this  latter  type  of  linkage  that  defined 
the  Taliban-al  Qaida  association  in  Afghanistan  when  the  United  States  initiated 
operations  against  both  these  entities.  There  is  no  indication  that  al  Qaida  was  sub- 
ordinate to  the  Taliban  in  either  a  dejure  or  de  facto  sense.  On  the  contrary,  all  in- 
dicators suggest  that  al  Qaida  had  established  what  could  be  characterized  as  a 
parasitic  relationship  with  the  Taliban — using  the  territory  and  resources  offered 
by  the  Taliban  to  further  its  own  independent  strategic  goals.  In  many  ways,  this  re- 
flects a  perverse  inversion  of  the  type  of  association  envisioned  by  the  drafters  of 
the  GPW.  Instead  of  al  Qaida  militia  operating  under  the  command  and  control  of 
the  Taliban,  Taliban  forces  were  ostensibly  subordinated  to  al  Qaida  command 
and  control  to  serve  al  Qaida  interests.40 

It  also  seems  clear  that  the  events  that  caused  the  United  States  to  target  al  Qaida 
with  combat  power — the  terror  attacks  of  September  1 1 — were  not  conducted  "on 
behalf  of  Afghanistan.  While  it  is  undisputed  that  al  Qaida  had  exploited  the  safe 
haven  provided  to  it  by  the  Taliban,  this  was  at  the  time  merely  the  latest  base  of  op- 
erations al  Qaida  had  exploited.41  There  is  no  evidence  to  indicate  that  al  Qaida 
launched  the  terror  attacks  of  September  1 1  at  the  direction  of  the  Taliban  or  to 
further  some  Taliban  strategic  objective.  On  the  contrary,  the  independent  nature 
of  these  attacks  resulted  in  the  destruction  of  the  Taliban  regime. 

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Making  the  Case  for  Conflict  Bifurcation  in  Afghanistan 

All  of  this  supports  the  conclusion  that  the  association  between  al  Qaida  and  the 
State  of  Afghanistan  was  insufficient  to  support  the  presumption  of  Article  4  appli- 
cability discussed  above.  If  al  Qaida  initiated  an  armed  attack  on  the  United  States 
as  a  distinct  strategic  objective,  the  mere  fact  that  the  military  response  to  that  at- 
tack led  the  United  States  to  engage  in  armed  conflict  with  the  State  that  provided 
safe  haven  to  al  Qaida  does  not  necessarily  justify  the  legal  windfall  of  lodging  the 
conflict  with  al  Qaida  within  the  realm  of  the  international  armed  conflict  against 
Afghanistan. 

The  alternate  conclusion  is,  of  course,  not  without  merit.  It  is  certainly  plausible 
that  at  least  within  the  confines  of  Afghanistan,  the  conflict  between  the  United 
States  and  al  Qaida  should  be  treated  as  derivative  of  the  broader  conflict  between 
the  United  States  and  Afghanistan.  But  proponents  of  this  theory  should  be  re- 
quired to  muster  more  than  mere  geographic  continuity,  or  even  shared  tactical 
objectives.  The  linkage  between  these  two  entities  must  reflect  that  al  Qaida  oper- 
ated in  a  derivative  capacity  to  the  Taliban  armed  forces,  for  only  such  evidence  can 
confirm  the  presumption  that  al  Qaida  was  in  fact  operating  "on  behalf  of '  a  party 
to  the  conflict. 

If  al  Qaida  was  not  sufficiently  connected  to  the  Taliban  in  Afghanistan  to  qual- 
ify as  operating  on  behalf  of  a  party  to  the  conflict,  then  what  was  the  nature  of  mil- 
itary operations  conducted  by  the  United  States  against  al  Qaida  forces  in 
Afghanistan?  As  I  have  argued  elsewhere  and  outlined  above,  the  de  facto  conflict 
nature  of  such  operations  indicates  that  they  should  be  considered  to  qualify  as  an 
armed  conflict  triggering  the  basic  regulatory  framework  of  LOAC  principles.  Oth- 
ers, however,  argue  that  unless  military  operations  against  al  Qaida  fall  within  the 
broader  context  of  an  armed  conflict  with  Afghanistan,  such  operations  are  noth- 
ing more  than  extraterritorial  law  enforcement.  It  is  to  the  fallacy  of  this  proposi- 
tion that  this  article  will  now  turn. 

The  Fallacy  of  Extraterritorial  Law  Enforcement  as  a  Legal  Model  for 
Transnational  Counterterrorism  Military  Operations 

One  of  the  most  difficult  issues  related  to  military  operations  directed  against 
transnational  terrorist  operatives  (what  I  will  refer  to  throughout  this  section  as 
counterterror  military  operations)  has  been  determining  the  appropriate  legal 
framework  applicable  to  such  operations.  Since  the  United  States  characterized  its 
response  to  the  terror  attacks  of  September  11,  2001  as  an  "armed  conflict,"  the 
well  accepted  standards  for  determining  when  the  law  of  armed  conflict  is  triggered 
have  been  thrown  into  disarray.  In  the  years  following  that  tragic  attack,  a  variety  of 
legal  theories  have  been  offered  to  identify  the  appropriate  locus  of  such  operations 

194 


Geoffrey  S.  Corn 


within  the  international  legal  regulatory  continuum.  These  have  ranged  from  the 
US  position  that  such  operations  are  armed  conflicts  triggering  LO AC- derived  au- 
thorities (although  what  type  of  armed  conflict  remains  allusive),  to  the  ICRC  as- 
sertion that  such  operations  are  merely  derivative  of  international  armed  conflicts 
triggered  whenever  a  State  conducts  military  operations  in  the  territory  of  another 
State,  to  the  assertion  of  human  rights  organizations  that  these  operations  fall  un- 
der the  human  rights  regulatory  framework  because  armed  conflict  between  States 
and  transnational  non- State  entities  is  a  legal  impossibility. 

The  skeptical  reaction  to  the  US  assertion  of  a  LOAC-based  legal  framework  is 
unsurprising  considering  the  breadth  of  that  assertion  typified  by  the  hyperbolic 
characterization  of  a  "Global  War  on  Terror."  But  just  as  the  nature  of  the  military 
component  of  the  international  struggle  against  highly  organized  terrorist  groups 
is  much  more  refined  than  the  broad  concept  of  a  "global  war,"  so  must  be  the 
analysis  of  which  legal  framework  operates  to  regulate  such  military  operations. 
Suggesting  that  the  struggle  against  terrorism  justifies  invoking  the  "authorities  of 
war"  for  every  aspect  of  counterterrorism  operations — from  detaining  a  terrorist 
"foot  soldier"  on  what  is  in  all  respects  a  conventional  battlefield  to  capturing  a  ter- 
rorist operative  with  law  enforcement  assets  in  the  midst  of  a  peaceful  domestic  en- 
viron— is  unjustifiably  overbroad.  But  it  is  also  unjustifiably  under- inclusive  to 
demand  that  military  operations  launched  for  the  purpose  of  employing  combat 
power  against  terrorist  targets  cannot  be  conducted  pursuant  to  the  LOAC  legal 
framework  because  those  operations  fail  to  satisfy  a  law-triggering  paradigm 
that  evolved  with  an  almost  exclusive  focus  on  inter-State  or  intra-State  armed 
conflicts. 

The  stakes  related  to  determining  the  applicable  legal  regime  to  regulate  counter- 
terror  military  operations  are  enormous.  Not  only  do  they  have  profound  impact 
on  the  rights  and  liberties  of  individuals  captured  and  detained  in  the  course  of 
such  operations,  but  whether  operations  are  conducted  under  the  LOAC  legal 
framework  or  under  the  alternate  human  rights  framework  fundamentally  impacts 
the  authority  of  State  forces  to  employ  combat  power.  Nor  will  pigeonholing  every 
operation  under  the  inter-State  conflict  framework  always  produce  a  logical  result. 
While  offering  the  benefit  of  application  of  the  LOAC,  such  an  approach — for  ex- 
ample, treating  the  2006  conflict  between  Israel  and  Hezbollah  as  a  subset  of  an 
armed  conflict  between  Israel  and  Lebanon — results  in  what  many  consider  to  be 
an  unjustified  benefit  for  non-State  forces,  namely  the  opportunity  to  qualify  for 
the  privilege  of  combatant  immunity. 

But  determining  the  nature  of  an  armed  conflict  is  secondary  to  determining  the 
very  existence  of  armed  conflict.  It  is  this  issue — i.e.,  whether  an  armed  conflict  can 
even  exist  outside  the  inter- State/intra- State  paradigm — that  generates  the  most 

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Making  the  Case  for  Conflict  Bifurcation  in  Afghanistan 

fundamental  debate  related  to  the  military  component  of  the  fight  against  interna- 
tional terror  groups.  For  the  United  States,  the  answer  is  an  unequivocal  "yes." 
However,  this  in  no  way  indicates  a  consensus  on  this  issue;  far  from  it.  Instead, 
many  experts  in  international  law  have  insisted  that  such  operations  are  not  armed 
conflicts,  but  instead  "extraterritorial  law  enforcement"  operations. 

This  alternate  legal  framework  was  recently  emphasized  by  Professor  Yoram 
Dinstein,  certainly  one  of  the  international  community's  most  respected  jus  belli 
scholars.  During  the  conference  which  inspired  this  article,  Professor  Dinstein  ar- 
ticulated what  he  asserted  was  the  clear  and  simple  legal  framework  for  the  conduct 
of  transnational  counterterror  military  operations.  According  to  Dinstein,  such 
operations  qualify  as  armed  conflict  under  only  two  circumstances:  first,  when  the 
operations  are  essentially  derivative  to  an  armed  conflict  with  the  State  sponsor  of 
the  terrorist  organization;  second,  when  the  actions  of  the  terrorist  organization 
can  be  attributed  to  a  sponsoring  State  as  the  result  of  terrorist  authority  over  or- 
gans of  the  State.  All  other  uses  of  force  against  such  a  threat  must,  according  to 
Dinstein,  be  regarded  as  what  he  labels  extraterritorial  law  enforcement.  Accord- 
ingly, he  categorically  rejected  the  proposition  that  such  operations  could  amount 
to  armed  conflict. 

I  will  attempt  the  unenviable  task  of  challenging  the  clarity  and  simplicity  of 
Professor  Dinstein's  extraterritorial  law  enforcement  theory.  I  will  do  so  because  I 
believe  his  conception  of  the  legal  characterization  of  counterterror  military  opera- 
tions employing  combat  power  is  fundamentally  inconsistent  with  the  underlying 
nature  of  such  operations.  A  far  more  important  motive,  however,  is  my  convic- 
tion that  under  appropriate  circumstances  treating  such  operations  as  events  that 
trigger  LOAC  obligations  is  much  more  consistent  with  the  logic,  history  and  spirit 
of  that  law  than  attempting  to  characterize  them  as  law  enforcement  missions. 

Context  for  this  argument  is  critical.  I  do  not  suggest  that  there  cannot  be  cer- 
tain uses  of  the  armed  forces  that  do  appropriately  fall  under  a  law  enforcement  le- 
gal paradigm.  Instead,  the  nature  of  military  operations  I  will  focus  on  involve  the 
application  of  combat  power  by  the  armed  forces  against  a  designated  target  or 
group.  For  point  of  reference  and  clarity,  the  focus  of  this  article  are  those  military 
operations  conducted  by  the  armed  forces  against  non-State  actors  operating  out- 
side the  State's  territory  pursuant  to  what  are  essentially  status-based  rules  of  en- 
gagement. If,  as  suggested  above,  operations  conducted  by  the  United  States 
against  al  Qaida  personnel  in  the  context  of  Operation  Enduring  Freedom  in  Af- 
ghanistan can  legitimately  be  segregated  from  the  broader  armed  conflict  against 
the  Taliban,  they  would  fall  into  this  category.  Other  examples  include  the  2007  US 
AC  130  strike  against  an  alleged  al  Qaida  base  camp  in  Somalia  and  the  Israeli  cam- 
paign against  Hezbollah  in  southern  Lebanon  during  the  1990s  and  again  in  2006. 

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Determining  the  nature  of  such  military  operations  is  central  to  the  ongoing 
struggle  against  transnational  terrorism.  Past  and  future  military  operations  con- 
ducted to  destroy,  disable  or  disrupt  the  capabilities  of  such  organizations  have  and 
will  remain  operationally  and  legally  complex.  More  significantly,  they  will  con- 
tinue to  strain  the  accepted  construct  for  determining  LOAC  applicability.  The 
depth  of  entrenchment  of  this  construct  no  doubt  explains  Professor  Dinstein's 
hostility  to  the  suggestion  that  such  operations  could,  under  certain  circumstances, 
qualify  as  armed  conflicts  for  purposes  of  triggering  LOAC  obligations.  However, 
any  assessment  of  the  controlling  legal  framework  for  these  military  operations 
must  contemplate  not  only  the  "accepted"  scope  of  the  current  law- triggering  par- 
adigm, but  also  the  underlying  purpose  that  motivated  that  paradigm.  Perhaps  of 
equal  importance  is  the  necessity  to  consider  the  second-  and  third-order  conse- 
quences of  characterizing  these  operations  as  law  enforcement. 

This  section  will  therefore  focus  on  the  following  factors  that  I  believe  are  essen- 
tial to  any  analysis  of  the  legal  framework  for  military  operations  conducted  against 
transnational  terrorist  operatives.  These  include  the  underlying  nature  and  pur- 
pose of  the  existing  law- triggering  paradigm;  the  relationship  between  the  basic  na- 
ture of  employment  of  combat  power  and  the  legal  regime  that  should  regulate  that 
employment;  how  the  nature  of  the  authority  invoked  reveals  a  fundamental  dis- 
tinction between  the  authority  derived  from  the  law  of  armed  conflict  framework 
and  that  derived  from  the  law  enforcement  framework;  the  importance  of  main- 
taining a  bright-line  distinction  between  the  jus  ad  helium  and  the  jus  in  bello;  and 
the  comparative  feasibility  of  applying  each  framework  to  such  operations.  I  be- 
lieve these  factors  indicate  that,  contrary  to  Professor  Dinstein's  assertion,  relying 
on  the  LOAC  framework  to  regulate  these  operations  is  not  only  more  logical  but 
more  feasible  than  relying  on  a  law  enforcement  legal  framework. 

The  Nature  and  Purpose  of  the  Traditional  LOAC-Triggering  Paradigm 

All  LOAC  scholars  and  practitioners  are  versed  in  what  I  have  previously  character- 
ized as  the  "either/or"  law-triggering  paradigm  created  by  Common  Articles  2  and 
3  of  the  four  Geneva  Conventions  and  the  interpretation  of  these  articles  that 
evolved  since  1949.  This  paradigm  may  have  proved  generally  sufficient  to  address 
the  types  of  armed  conflicts  occurring  up  until  9/11.  However,  this  fact  no  longer 
justifies  the  conclusion  that  no  other  triggering  standard  should  be  recognized.  In- 
stead, as  the  events  since  9/11  have  illustrated  so  convincingly,  such  recognition  is 
essential  in  order  to  keep  pace  with  the  evolving  nature  of  armed  conflicts  them- 
selves. The  prospect  of  an  unregulated  battlefield  is  simply  unacceptable  in  the  in- 
ternational community,  a  fact  demonstrated  by  the  response  to  the  conflict,  in 

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Lebanon.42  The  ultimate  question,  therefore,  is  whether  it  is  best  to  continue  to  try 
and  fit  the  proverbial  square  "armed  conflict"  peg  into  the  round  "Common  Arti- 
cle 3"  hole,  or  whether  the  time  has  come  to  endorse  a  new  category  of  armed  con- 
flict. It  is  the  limited  impact  of  Common  Article  3  itself  that  compels  the 
conclusion  that  recognizing  a  new  law-triggering  category  is  essential. 

Both  the  military  components  of  the  US  fight  against  al  Qaida  and  the  recent 
conflict  between  Israel  and  Hezbollah  have  strained  this  traditionally  understood 
LOAC-triggering  paradigm.43  While  this  strain  has  produced  international  and  na- 
tional uncertainty  as  to  the  law  that  applies  to  such  operations,44  it  has  also  pro- 
vided what  may  actually  come  to  be  appreciated  as  a  beneficial  reassessment  of  the 
trigger  for  application  of  fundamental  LOAC  principles.  As  a  result,  the  time  is  ripe 
to  consider  whether  the  pragmatic  logic  that  has  animated  military  policy  on  this 
subject  for  decades  should  not  be  regarded  as  something  more,  to  wit  a  reflection  of 
a  general  principle  of  law  requiring  that  all  military  operations  involving  the  em- 
ployment of  combat  power  fall  under  the  regulatory  framework  of  the  LOAC. 

Before  the  United  States  Supreme  Court  issued  its  highly  publicized  ruling  in 
the  case  of  Hamdan  v.  Rumsfeld,45  the  Court  of  Appeals  for  the  District  of  Colum- 
bia ruled  on  Hamdan's  challenge.  In  the  judgment  of  Hamdan  v.  Rumsfeld46  Judge 
Williams  articulated  the  logic  motivating  this  reassessment  in  his  concurring  opin- 
ion. In  that  opinion,  he  responded  to  the  majority  conclusion  that  Common  Arti- 
cle 3  did  not  apply  to  armed  conflict  with  al  Qaida  because  the  President  has 
determined  that  this  conflict  is  one  of  international  scope: 

Non-state  actors  cannot  sign  an  international  treaty.  Nor  is  such  an  actor  even  a 
"Power"  that  would  be  eligible  under  Article  2  fl|  3)  to  secure  protection  by  complying 
with  the  Convention's  requirements.  Common  Article  3  fills  the  gap,  providing  some 
minimal  protection  for  such  non-eligibles  in  an  "armed  conflict  not  of  an  international 
character  occurring  in  the  territory  of  one  of  the  High  Contracting  Parties."  The  gap 
being  filled  is  the  non-eligible  party's  failure  to  be  a  nation.  Thus  the  words  "not  of  an 
international  character"  are  sensibly  understood  to  refer  to  a  conflict  between  a 
signatory  nation  and  a  non-state  actor.  The  most  obvious  form  of  such  a  conflict  is  a 
civil  war.  But  given  the  Convention's  structure,  the  logical  reading  of  "international 
character"  is  one  that  matches  the  basic  derivation  of  the  word  "international,"  i.e., 
between  nations.  Thus,  I  think  the  context  compels  the  view  that  a  conflict  between  a 
signatory  and  a  non-state  actor  is  a  conflict  "not  of  an  international  character."  In  such 
a  conflict,  the  signatory  is  bound  to  Common  Article  3's  modest  requirements  of 
"humane"  treatment  and  "the  judicial  guarantees  which  are  recognized  as 
indispensable  by  civilized  peoples."47 

Although  the  logic  expressed  by  Judge  Williams  seems  pragmatically  compel- 
ling, his  interpretation  did  not  sway  his  peers.  This  reflected  the  influence  of 


198 


Geoffrey  S.  Corn 


Common  Articles  2  and  3 — and  the  legal  paradigm  they  spawned — on  conflict 
regulation  analysis.  But,  as  Judge  Williams  recognized,  it  is  fundamentally  incon- 
sistent with  the  logic  of  the  LOAC  to  disconnect  the  applicability  of  regulation 
from  the  necessity  for  regulation.  Judge  Williams  looked  beyond  the  traditional  in- 
terpretation of  Common  Articles  2  and  3  because  he  recognized  that  what  was 
needed  was  a  pragmatic  reconciliation  of  these  two  considerations.  Ironically,  it  is 
the  long-standing  policy  of  the  US  military  that  validates  this  interpretation  of  the 
LOAC.  That  policy,  as  will  be  explained  below,  long  ago  rejected  a  formalistic  inter- 
pretation of  applicability  of  LOAC  principles  to  military  operations  in  favor  of  a 
pragmatic  application  based  on  the  necessity  of  providing  US  forces  with  a  consis- 
tent regulatory  framework. 

Recognizing  the  Regulatory  Gap:  How  Military  Policies  Reflect  the  Necessity  of 
a  "Principled"  Approach  to  Military  Operations 

The  need  to  provide  a  LOAC-based  regulatory  framework  for  all  combat  opera- 
tions, even  those  ostensibly  falling  outside  the  accepted  law-triggering  categories 
derived  from  Common  Articles  2  and  3,  is  not  something  that  critics  of  Israeli  op- 
erations targeting  Hezbollah  have  only  recently  suggested.  For  more  than  three  de- 
cades prior  to  this  conflict,  the  armed  forces  of  the  United  States  followed  a  clear 
and  simple  mandate  codified  in  the  Department  of  Defense  Law  of  War  Program:48 
comply  with  the  principles  of  the  law  of  war  during  all  military  operations.  While 
this  policy  mandate  has  never  explicitly  articulated  what  precisely  is  meant  by 
"principles,"49  this  term  is  generally  understood  to  refer  to  the  concepts  that  reflect 
the  fundamental  balance  between  the  dictates  of  military  necessity50  and  the  obli- 
gation to  mitigate  the  suffering  associated  with  armed  conflict,  concepts  that  pro- 
vide the  foundation  for  the  more  detailed  rules  that  have  evolved  to  implement 
these  principles.  This  foundational  principle/specific  rule  relationship  is  explained 
by  Professor  Adam  Roberts: 

Although  some  of  the  law  is  immensely  detailed,  its  foundational  principles  are  simple: 
the  wounded  and  sick,  POWs  and  civilians  are  to  be  protected;  military  targets  must  be 
attacked  in  such  a  manner  as  to  keep  civilian  casualties  and  damage  to  a  minimum; 
humanitarian  and  peacekeeping  personnel  must  be  respected;  neutral  or  non- 
belligerent states  have  certain  rights  and  duties;  and  the  use  of  certain  weapons 
(including  chemical  weapons)  is  prohibited,  as  also  are  other  means  and  methods  of 
warfare  that  cause  unnecessary  suffering.51 

While  the  US  Department  of  Defense  has  never  explicitly  defined  the  content  of 
the  term  "principles,"  manuals  for  other  armed  forces  do  provide  more  clarity  to 

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the  content  of  this  term.  For  example,  the  recently  revised  United  Kingdom  Minis- 
try of  Defence  Manual  for  the  Law  of  Armed  Conflict  provides: 

Despite  the  codification  of  much  customary  law  into  treaty  form  during  the  last  one 
hundred  years,  four  fundamental  principles  still  underlie  the  law  of  armed  conflict.  These 
are  military  necessity,  humanity,  distinction,  and  proportionality.  The  law  of  armed  conflict 
is  consistent  with  the  economic  and  efficient  use  of  force.  It  is  intended  to  minimize  the 
suffering  caused  by  armed  conflict  rather  than  impede  military  efficiency.52 

For  US  forces  and  their  operations,  the  significance  of  the  mandate  to  comply 
with  these  principles  during  all  military  operations  is  not  diminished  by  the  ab- 
sence of  a  precise  definition  of  this  term.  Instead,  definition  is  left  to  operational  legal 
advisors  based  on  their  training  and  experience.  What  is  significant  for  purposes  of 
this  article  is  that  the  policy  requires  that  US  armed  forces  treat  any  military  opera- 
tion, and  especially  any  operation  involving  the  use  of  combat  power  (armed  con- 
flict), as  the  trigger  for  application  of  a  LOAC-based  regulatory  framework.53  This 
policy  has  provided  the  basis  for  following  LOAC  principles  during  every  phase  of 
the  military  component  of  what  the  Bush  administration  has  characterized  as  the 
"Global  War  on  Terror."54 

The  motive  for  this  policy  was  twofold.  First,  it  was  intended  to  provide  a  com- 
mon standard  of  training  and  operational  compliance  during  the  range  of  military 
operations.55  Second,  it  responded  to  the  reality  that  such  operations  are  often  ini- 
tiated prior  to  a  clear  government  determination  of  the  legal  applicability  of  the 
laws  of  war.56  Ultimately,  the  armed  forces  value  this  policy  because  they  intuitively 
understand  that  a  framework  for  the  execution  of  combat  operations  is  essential  to 
the  preservation  of  a  disciplined  force.  This  is  a  critically  important  purpose  of  legal 
regulation  of  the  battlefield,  a  consideration  often  overlooked  by  contemporary 
commentators.  Although  no  longer  commonly  cited  as  a  critical  purpose  of  the 
LOAC,  prior  generations  clearly  understood  this  purpose.  This  is  clearly  evident  by 
the  emphasis  of  this  purpose  in  one  of  the  most  important  precursors  to  the  twentieth- 
century  evolution  of  the  conventional  laws  of  war,  the  Oxford  Manual  of  the  Laws  of 
War  on  Land:57 

By  [codifying  the  rules  of  war  derived  from  State  practice],  it  believes  it  is  rendering  a 

service  to  military  men  themselves A  positive  set  of  rules,  on  the  contrary,  if  they  are 

judicious,  serves  the  interests  of  belligerents  and  is  far  from  hindering  them,  since  by 
preventing  the  unchaining  of  passion  and  savage  instincts — which  battle  always 
awakens,  as  much  as  it  awakens  courage  and  manly  virtues, — it  strengthens  the  discipline 
which  is  the  strength  of  armies;  it  also  ennobles  their  patriotic  mission  in  the  eyes  of  the 
soldiers  by  keeping  them  within  the  limits  of  respect  due  to  the  rights  of  humanity.58 


200 


Geoffrey  S.  Corn 


The  compelling  logic  reflected  in  this  extract  finds  contemporary  manifestation 
in  the  policy  mandates  imposed  on  US  and  other  armed  forces  that  extend  applica- 
tion of  these  principles  to  all  military  operations.  These  mandates  indicate  that  the 
application  of  combat  power  must  always  be  subject  to  a  basic  regulatory  frame- 
work. The  gap  in  the  accepted  scope  of  legally  required  LOAC  application,  coupled 
with  this  logic,  led  other  nations  to  follow  the  practice  of  imposing  such  regulation 
by  policy.59  Even  the  United  Nations,  habitually  called  upon  to  use  military  forces 
in  situations  of  uncertain  legal  classification,  implemented  an  analogous  mandate 
for  forces  operating  under  its  control.60  However,  no  matter  how  logical  such  man- 
dates may  be  in  terms  of  military  efficiency  and  humanitarian  protections,  their  pol- 
icy characters  reveal  a  perceived  gap  between  situations  necessitating  LOAC  applica- 
tion and  the  technical  legal  triggers  for  such  application.  Furthermore,  their  policy 
characters  indicate  that  these  mandates  are  ultimately  subject  to  modification.61 

The  historical  underpinnings  of  the  LOAC  and  the  contemporary  application  of 
LOAC  principles  to  a  wide  spectrum  of  military  operations  as  a  matter  of  national 
policy  indicate  that  the  dispositive  factor  in  determining  when  this  regulatory 
framework  should  apply  is  the  fundamental  nature  of  the  military  operation  in 
question.  When  armed  forces  conduct  operations  employing  combat  power 
against  a  defined  enemy  with  authority  to  engage  and  subdue  the  enemy  based 
solely  on  that  defined  status,  such  operations  should  be  regarded  as  armed  con- 
flicts. Because  of  this,  the  underlying  logic  that  has  driven  the  historical  application 
of  LOAC  principles  to  regulate  such  operations  provides  compelling  evidence  in 
support  of  extending  this  framework  to  counterterror  military  operations  that  fall 
into  this  category,  even  when  the  enemy  is  a  non- State  entity  with  no  plausible  link 
of  attribution  to  the  State  in  which  it  operates.  As  will  be  discussed  below,  an  ana- 
lytical focus  on  the  fundamental  nature  of  the  authority  invoked  by  the  State  indi- 
cates that  the  alternate  proposition — to  characterize  such  operations  as  law 
enforcement — is  unsupported  by  any  analogous  logic. 

The  Fundamental  Distinction  between  the  Law  of  Armed  Conflict  Legal 
Framework  and  the  Extraterritorial  Law  Enforcement  Legal  Framework 

The  discussion  above  reveals  why  the  regulatory  framework  applicable  to  military 
operations  must  respond  to  the  de  facto  existence  of  armed  conflict.  However,  it 
also  reveals  why  the  existing  understanding  of  this  law- triggering  paradigm  has  op- 
erated as  an  impediment  to  such  application  in  any  armed  conflict  not  falling 
neatly  within  the  inter-State/intra-State  conflict  categories.  As  a  result,  military 
operations  conducted  by  States  against  non-State  operatives  who  operate  trans- 
nationally  fall  into  a  category  of  regulatory  uncertainty.  In  response  to  this 

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uncertainty,  scholars  like  Professor  Dinstein  argue  that  such  operations  are  best 
understood  as  extraterritorial  law  enforcement  activities,  and  not  as  armed  con- 
flicts. This  view  presumably  indicates  that  it  is  a  law  enforcement  legal  framework, 
and  not  LOAC  principles,  that  functions  to  regulate  such  operations. 

This  is  a  significant  assertion,  for  it  dictates  a  scope  of  authority  that  is  arguably 
inconsistent  with  the  fundamental  nature  and  purpose  of  such  military  operations. 
It  is  undoubtedly  true  that  the  ultimate  objective  of  disabling  the  operational  capa- 
bilities of  terrorist  organizations  is  the  common  purpose  of  any  counterterror  State 
action.  However,  the  means  by  which  law  enforcement  activities  achieve  this  ob- 
jective differs  fundamentally  from  the  means  by  which  military  operations  do  so, 
most  significantly  with  regard  to  the  use  of  deadly  force.  Indeed,  the  most  funda- 
mental distinction  between  law  enforcement  and  armed  conflict  is  manifested  in 
the  scope  of  use  of  deadly  force  authority — a  distinction  between  use  of  deadly 
force  as  a  last  resort  and  use  of  deadly  force  as  a  first  resort.  Law  enforcement  activi- 
ties, governed  by  international  human-rights  standards,  reserve  the  use  of  deadly 
force  as  a  measure  of  last  resort.  In  contrast,  use  of  deadly  force  against  a  military 
objective  is  a  legitimate  measure  of  first  resort  during  armed  conflict. 

This  basic  distinction  between  relative  authorities  reveals  in  the  starkest  manner 
the  fundamental  fallacy  of  characterizing  military  operations  directed  against 
transnational  terrorists  as  law  enforcement  operations,  not  based  on  an  analysis  of 
the  nature  of  authority  associated  with  such  operations,  but  merely  on  the  basis  of 
incompatibility  with  the  inter-State/intra-State  law-triggering  paradigm.  In  most 
instances,  the  choice  by  the  State  to  resort  to  military  force  against  such  a  threat  is 
driven  by  the  assessed  need  to  employ  deadly  force  as  a  measure  of  first,  and  not 
last,  resort.  Consider  the  example  of  an  airstrike  conducted  against  a  terrorist  train- 
ing facility  operating  with  impunity  in  the  territory  of  another  State.  It  is  incon- 
ceivable that  the  authority  to  employ  deadly  force  relied  on  by  the  air  assets 
executing  the  mission  will  be  contingent  on  a  provocation  from  the  terrorist  target. 
Nor  is  it  conceivable  that  the  air  assets  will  be  obliged  to  offer  the  potential  targets 
the  opportunity  to  submit  to  apprehension  as  a  condition  precedent  to  the  em- 
ployment of  combat  power.  Instead,  the  authority  to  employ  that  power  will  al- 
most certainly  be  based  on  an  inherent  invocation  of  the  principle  of  military 
objective,  allowing  the  use  of  deadly  combat  power  based  solely  on  the  identifica- 
tion of  the  target  as  one  falling  into  the  category  of  a  defined  terrorist  enemy. 

Employment  of  combat  power  under  this  type  of  authority  is  not  law  enforce- 
ment. It  is,  quintessentially,  a  use  of  deadly  force  as  a  measure  of  first  resort.  The 
LOAC  provides  the  only  legal  justification  for  such  a  use  of  force.  Accordingly, 
based  on  the  nature  of  the  authority  related  to  the  military  operation,  armed  con- 
flict best  characterizes  the  de  facto  nature  of  such  activities,  if  for  no  other  reason 

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than  the  State's  implicit  invocation  of  the  principle  of  military  objective  as  a  justifi- 
cation for  the  use  of  deadly  force.  Characterizing  such  operations  as  law  enforce- 
ment creates  an  immediate  incongruity  that  undermines  the  fundamental  nature 
of  that  characterization:  the  suggestion  that  the  use  of  deadly  force  is  limited  to  a 
measure  of  last  resort  and  that  less  destructive  means  must  be  attempted  prior  to 
such  use. 

No  such  incongruity  would  result  from  acknowledging  that  operations  target- 
ing terrorist  operatives  with  combat  power  are  armed  conflicts.  Instead,  such  ac- 
knowledgment achieves  a  critical  effect:  the  authority  implicitly  invoked  by  the 
State  is  counterbalanced  by  the  limiting  humanitarian  principles  of  this  law.  In 
short,  if  such  operations  are  categorized  as  armed  conflicts,  the  law  essentially  cre- 
ates a  "package  deal"  for  participants.  While  the  principle  of  military  necessity/ 
military  objective  may  justify  the  employment  of  deadly  force  as  a  measure  of  first 
resort,  other  principles  limiting  the  methods  and  means  of  warfare  and  establish- 
ing baseline  standards  of  treatment  for  captured  and  detained  personnel  also  be- 
come applicable.  Unless  combat  operations  conducted  against  terrorist  operatives 
are  understood  to  trigger  this  "package"  of  principles,  States  will  continue  to  be 
free  to  adopt  a  selective  invocation  of  the  fundamental  authority  derived  from  the 
LOAC  to  take  measures  necessary  to  disable  terrorist  capabilities,  while  disavowing 
legally  mandated  obligations  derived  from  the  same  source  of  law.62 

The  Bright-Line  Distinction  between  the  Jus  ad  Bellum  and  the  Jus  in  Bello: 
Remembering  That  Application  of  the  LOAC  Should  Not  Be  Influenced  by 

Use  of  Force  Legality 

Another  significant  objection  to  treating  military  operations  directed  against 
transnational  terrorists  as  triggering  LOAC  rights  and  obligations  is  that  doing  so 
will  somehow  legitimize  such  uses  of  force.  This  argument,  however,  ignores  the 
historic  bright-line  distinction  between  the  jus  ad  bellum  and  the  jws  in  bello.  This 
distinction  has  long  stood  for  the  proposition  that  the  legality  of  war  must  not  be 
permitted  to  influence  the  applicability  of  the  rules  for  conduct  during  war.  This 
distinction  can  genuinely  be  considered  a  foundational  principle  of  the  Geneva 
Conventions  and  the  de  facto  law-triggering  provisions  incorporated  therein. 

The  ad  bellum/in  bello  distinction  is  intended  to  achieve  a  critical  effect:  to  en- 
sure that  the  legal  regime  protecting  the  participants  in  armed  conflict  is  not  di- 
luted or  denied  based  on  the  choices  of  those  who  decide  on  armed  conflict.  It  is  a 
reflection  of  the  basic  tenet  of  the  Geneva  Conventions — all  individuals  impacted 
by  armed  conflict,  civilian  and  warrior  alike,  are  in  essence  "victims  of  war,"  for 
they  are  not  responsible  for  the  decision  to  wage  war.  Accordingly,  the  legal 

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regime  that  operates  to  limit  the  harmful  effects  of  war  on  both  warrior  and  civil- 
ian must  be  triggered  by  a  pure  de  facto  standard:  the  existence  of  armed  conflict. 

Of  course,  the  primary  concern  at  the  time  of  the  drafting  of  the  Conventions 
was  preventing  States  from  using  the  illegality  of  war  as  a  justification  for  denial  of 
humanitarian  protections.  The  issue  related  to  the  application  of  the  LOAC  to  mil- 
itary operations  between  a  State  and  non-State  entity  is  quite  the  opposite.  In  this 
context,  the  concern  is  that  acknowledging  that  such  operations  trigger  the  LOAC 
legal  framework  will  bolster  the  legal  justification  for  the  use  of  force  by  the  State. 
Nonetheless,  the  underlying  purpose  of  the  ad  bellum/in  hello  distinction  is  equally 
applicable  to  this  context  and  indicates  that  the  legal  framework  that  regulates  the 
conduct  of  military  operations  should  in  no  way  influence  the  assessment  of  the  le- 
gality of  those  operations. 

As  I  have  written  extensively  elsewhere,  this  de  facto  standard  is  a  core  concept 
of  the  existing  law  triggers  of  the  Geneva  Conventions.  The  focus  of  these  triggers  is 
on  the  question  of  actual  hostilities  that  rise  above  the  level  of  law  enforcement  ac- 
tivities. In  such  circumstances,  the  LOAC  is  the  appropriate  legal  framework  to 
achieve  the  humanitarian  objective  of  limiting  unnecessary  suffering. 

In  the  context  of  inter-State  or  intra-State  hostilities,  the  line  between  a  use  of 
State  power  for  law  enforcement  purposes  and  armed  conflict  has  been  relatively 
well  defined.  However,  once  States  began  to  employ  power  outside  their  territo- 
ries for  the  purpose  of  combating  terrorism,  this  line  became  much  blurrier.  I 
(with  my  co-author  Eric  Jensen)  have  addressed  the  problem  of  defining  the  line 
between  law  enforcement  and  armed  conflict  in  this  extraterritorial  context  in  a 
prior  article,  asserting  that  the  nature  of  the  use-of-force  authority  employed  by 
armed  forces  is  the  most  effective  means  of  definition.  It  is  not  my  purpose  to  ex- 
pand upon  that  theory  here.  Instead,  the  basic  concept  reveals  why  the  ad  helium/ 
in  hello  distinction  is  equally  relevant  in  such  a  context.  We  argue  that  when  a 
State  authorizes  the  use  of  combat  power  based  on  an  inherent  invocation  of  the 
principle  of  military  objective  (in  the  form  of  status-based  rules  of  engagement) 
a  situation  of  de  facto  armed  conflict  exists.  Even  assuming  that  the  use  of  force 
authorized  by  the  State  is  in  violation  of  thejws  ad  helium,  this  in  no  way  alters 
the  basic  reality  that  the  State  has  implicitly  invoked  the  LOAC  for  purposes  of 
executing  the  operation.  As  a  result,  there  is  no  justification  to  deprive  the  par- 
ticipants in  associated  hostilities  of  the  benefit  of  the  fundamental  principles  of 
that  law. 

What  seems  more  appropriate,  and  certainly  more  consistent  with  the  ad 
bellum/in  hello  distinction  that  is  an  integral  element  in  determining  LOAC  appli- 
cability, is  to  treat  the  ad  bellum/in  bello  issues  as  truly  independent  legal  ques- 
tions. Concluding  a  State's  use  of  military  force  to  target  a  terrorist  entity  is  in 

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violation  of  the  jus  ad  helium  but  is  nonetheless  armed  conflict  triggering  funda- 
mental LOAC  rights  and  obligations  seems  more  satisfactory  than  asserting  the 
jus  ad  helium  violation  requires  denying  the  participants  in  the  hostilities  the  ben- 
efits of  the  legal  framework  best  suited  to  regulate  such  activities. 

Of  course,  characterizing  such  operations  as  law  enforcement  avoids  this  issue 
entirely.  Or  does  it?  It  is  unlikely  that  a  State  will  not  be  held  to  account  for  armed 
interventions  in  the  territory  of  other  States  simply  because  the  State  asserts  it  is  ex- 
ercising "extraterritorial  law  enforcement."  And  here  lies  the  potential  irony.  In  as- 
sessing the  jus  ad  helium  legality  of  State  action,  it  is  almost  certain  that  the  de  facto 
nature  of  that  action  will  be  the  focus,  and  not  the  characterizations  adopted  by  the 
State.  As  a  result,  use  of  combat  power  under  the  rubric  of  extraterritorial  law  en- 
forcement creates  a  double  failure:  it  will  be  insufficient  to  avoid  condemnation  for 
a  jus  ad  helium  violation,  while  at  the  same  time  it  will  deprive  the  forces  engaged  in 
the  operation  of  the  clarity  provided  by  the  legal  framework  developed  to  regulate 
the  essential  nature  of  their  activities:  armed  conflict. 

The  Law  of  Armed  Conflict:  A  Defined  and  Intuitive  Regulatory  Framework 

As  suggested  above,  the  regulatory  framework  applicable  to  the  conduct  of  military 
operations  against  transnational  terrorist  threats  should  not  influence  the  assess- 
ment of  the  legality  of  such  operations.  Accordingly,  the  primary  analytical  consid- 
eration for  determining  which  legal  framework  is  most  appropriate  for  the 
regulation  of  such  operations  is  how  effectively  it  achieves  the  regulatory  purpose. 
It  is  here  that  applying  LOAC  principles  offers  substantial  benefit  over  applying  a 
law  enforcement  framework.  This  conclusion  is  supported  by  two  primary  consid- 
erations. First,  fundamental  LOAC  principles  are  well  established  and  well  under- 
stood by  professional  armed  forces.  Indeed,  these  principles  are  so  pervasive  they 
have  formed  the  foundation  for  policy  regulation  of  many  military  operations  that 
are  not  technically  subject  to  the  law.  Second,  because  of  this  pervasive  application, 
armed  forces  are  well  versed  in  compliance  with  these  principles  and  as  a  result 
conducting  operations  pursuant  thereto  is  relatively  intuitive. 

This  is  not  the  case  with  the  law  enforcement  framework.  As  a  general  proposi- 
tion, armed  forces  are  not  trained  to  conduct  law  enforcement  operations.  Unlike 
their  law  enforcement  counterparts,  demanding  a  careful  escalation  of  force  to  en- 
sure that  resort  to  deadly  force  is  only  a  measure  of  last  resort  is  the  exception  to  the 
mindset  normally  demanded  of  military  personnel.  That  mindset  requires  the  abil- 
ity to  engage  an  enemy  with  deadly  combat  power  on  command.  This  often  in- 
volves the  application  of  overwhelming,  and  not  graduated,  combat  power. 
Imposing  a  law  enforcement  framework  on  military  personnel  requires  a  radical 

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modification  to  the  combat  mentality,  with  all  the  training,  planning  and  execu- 
tion challenges  associated  therewith. 

Ironically,  one  of  the  common  criticisms  of  the  assertion  that  military  opera- 
tions against  transnational  terrorist  groups  trigger  LOAC  principles  is  the  uncer- 
tainty associated  with  determining  what  rules  would  apply  to  such  operations.  As 
Professor  Dinstein  noted  during  one  presentation,  "Where  do  the  rules  come 
from?  Do  you  just  make  them  up  in  a  library  in  Texas?"  There  is,  however,  no 
need  to  "make  up"  any  rules.  Instead,  as  my  co-author  and  I  have  noted  else- 
where, the  fundamental  LOAC  principles — military  necessity,  military  objective, 
proportionality  and  humanity — are  well  enough  understood  as  to  provide  an  ef- 
fective starting  point  for  the  regulation  of  these  military  operations.  Nor  is  ex- 
tending these  principles  to  transnational  armed  conflicts  a  radical  suggestion,  but 
instead  a  process  analogous  to  that  which  has  led  to  the  development  of  the  regu- 
lation of  internal  armed  conflicts  (another  point  of  particular  irony,  considering 
that  Professor  Dinstein  has  been  central  to  the  proposed  application  of  regulatory 
provisions  developed  in  the  context  of  inter-State  conflict  to  the  realm  of  internal 
conflict). 

What  seems  particularly  invalid  about  this  criticism  is  that  it  seems  even  more 
legitimately  leveled  against  the  extraterritorial  law  enforcement  theory.  Unlike 
fundamental  LOAC  principles,  there  is  no  well  established  source  of  regulatory 
principles  that  apply  to  the  use  of  military  force  for  extraterritorial  law  enforce- 
ment principles.  If  such  operations  are  considered  law  enforcement,  where  do  the 
rules  that  govern  those  operations  come  from?  While  rules  applicable  to  domestic 
law  enforcement  activities  are  certainly  well  developed,  there  is  no  basis  to  assert 
that  they  can  simply  be  transplanted  to  apply  to  extraterritorial  military  operations. 
Use  of  law  enforcement  would  presumably  be  governed  by  the  sending  State's  do- 
mestic policing  statutes,  an  odd  choice  of  laws  in  an  extraterritorial  use  of  force. 
Accordingly,  such  a  suggestion  seems  far  more  fabricated  than  applying  LOAC 
principles  to  combat  operations  against  terrorist  operatives.  In  the  latter  situation, 
the  armed  forces  would  apply  a  body  of  rules  that  form  the  foundation  of  military 
training  and  operations  and  were  developed  to  limit  the  harmful  consequence  of  a 
State  unleashing  combat  power.  In  the  former,  armed  forces  would  be  expected  to 
comply  with  a  regulatory  framework  that  was  never  developed  nor  intended  to  ap- 
ply to  armed  hostilities. 

Policy  Application  of  the  Law  of  Armed  Conflict:  Its  Value  and  Limitations 

Perhaps  the  most  compelling  evidence  in  support  of  the  validity  of  applying  the 
LOAC  framework  to  the  type  of  military  operations  addressed  in  this  article  is  that 

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reliance  on  this  framework  as  a  "default"  standard  has  been  the  long-standing  so- 
lution to  the  legal  uncertainties  associated  with  contemporary  military  operations. 
For  several  decades,  the  armed  forces  of  major  military  powers  have  imposed  an 
obligation  to  comply  with  LOAC  principles  during  all  military  operations,  even 
when  those  principles  were  not  applicable  as  a  matter  of  law.  This  practice  was  ul- 
timately emulated  by  the  United  Nations  as  a  solution  to  the  dilemma  of  establish- 
ing a  uniform  regulatory  standard  for  all  UN  forces  engaged  in  peacekeeping 
operations. 

The  logic  behind  this  policy  application  of  LOAC  principles  reinforces  the  argu- 
ment that  the  LOAC  is  better  suited  to  provide  for  the  regulation  of  counterterror 
military  operations  than  the  law  enforcement  framework.  Military  leaders  have 
long  understood  that  setting  a  LOAC-based  default  standard  of  regulation  en- 
hances the  probability  of  disciplined  operations  by  facilitating  uniform  training 
and  planning  criteria.  Perhaps  more  important,  because  the  LOAC  is  the  only 
source  of  international  law  that  evolved  for  the  specific  purpose  of  regulating  mili- 
tary operations,  its  extension  to  all  military  operations  was  understood  as  pragmat- 
ically and  operationally  logical.  In  short,  these  policies  indicate  that  military 
operations  are  best  regulated  by  the  law  developed  for  such  a  purpose,  and  not  by 
some  artificial  application  of  a  body  of  law  developed  for  an  entirely  different 
purpose. 

Indeed,  the  past  effectiveness  of  this  policy  application  of  LOAC  principles  has 
led  some  to  assert  that  there  is  no  need  to  wade  into  the  controversial  waters  of  con- 
flict characterization  in  relation  to  counterterror  military  operations,  but  that 
compliance  with  these  policies  provides  an  effective  solution  to  the  regulatory  di- 
lemma. But  this  argument  is  flawed  for  two  reasons.  First,  it  is  in  effect  an  acknowl- 
edgment that  these  operations  require  the  regulatory  framework  provided  by  the 
LOAC,  with  an  effort  to  avoid  the  difficult  question  of  why  this  framework  should 
be  applied.  However,  if  the  assumption  is  valid — that  the  nature  of  the  operations 
requires  LOAC  regulation — then  that  issue  must  be  addressed  head  on;  and  the 
reason  for  this  is  revealed  in  the  second  flaw  of  this  argument. 

Until  the  US  response  to  the  terror  attacks  of  September  11,  the  "policy  is 
enough"  argument  held  great  merit.  This  was  because  issues  related  to  the  regula- 
tion of  military  operations  and  treatment  of  individuals  captured  and  detained 
during  those  operations  were  left  almost  exclusively  to  military  decisionmakers. 
However,  it  is  widespread  knowledge  that  this  paradigm  shifted  dramatically  after 
those  attacks.  No  longer  was  the  military  free  to  "apply  the  principles  of  the  law  of 
war"  with  little  or  no  interference  from  civilian  policy-  and  decisionmakers.  In- 
stead, the  intervention  of  these  individuals  exposed  the  limits  of  policy  application 
of  these  principles. 

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In  what  are  now  regarded  as  notorious  legal  opinions,  senior  US  government 
lawyers  and  the  decisionmakers  they  advised  adopted  policies  related  to  the  treat- 
ment of  captured  and  detained  personnel  that  deviated  from  the  "principles"  of 
the  LOAC.  The  justification  for  these  decisions  was  clear:  unlike  law,  policy  is  mal- 
leable. Accordingly,  Department  of  Defense  policy  became  ineffective  once  the 
leadership  of  the  department  or  the  nation  chose  to  adopt  inconsistent  courses  of 
action.  This  process  exposed  why  simply  asserting  a  policy-based  application  of 
LOAC  principles  to  counterterror  military  operations  is  insufficient  to  address  the 
regulatory  issue.  Participants  in  these  endeavors — and  the  individuals  they  engage 
with  combat  power,  subdue,  capture  and  detain — require  a  legally  defined  and 
mandated  regulatory  framework.  While  the  long-standing  policies  requiring  com- 
pliance with  LOAC  principles  certainly  indicate  that  these  principles  are  the  most 
logical  and  appropriate  source  of  regulation  for  these  operations,  policy  is  ulti- 
mately insufficient  to  provide  this  certainty.  Only  by  acknowledging  the  legally 
mandated  applicability  of  LOAC  principles  to  such  operations  will  this  certainty 
be  achieved. 

Case-by-Case  Application  and  the  Rejection  of  the  Zero-Sum  Game 

What  I  have  attempted  to  do  in  this  article  is  expose  why  it  is  invalid  and  disingenu- 
ous to  characterize  counterterror  military  operations  employing  combat  power 
under  a  "deadly  force  as  a  first  resort"  authority  as  extraterritorial  law  enforce- 
ment. Instead,  these  operations  should  be  treated  as  triggering  the  foundational 
principles  of  the  LOAC.  However,  I  am  not  suggesting  a  zero-sum  game  analysis — 
that  all  uses  of  the  military  in  the  struggle  against  transnational  terrorism  must  be 
characterized  as  triggering  LOAC  principles;  far  from  it.  What  I  have  proposed 
here  and  previously  is  that  the  essential  nature  of  the  use-of- force  authority  related 
to  any  use  of  military  power  must  dictate  whether  that  use  falls  into  the  category  of 
armed  conflict  or  instead  remains  under  the  assistance-to-law-enforcement  cate- 
gory. This  may  often  be  a  difficult  line  to  decipher.  But  rejecting  the  applicability  of 
LOAC  principles  to  those  operations  that  cross  this  line  simply  because  to  do  so  de- 
viates from  the  entrenched  law- triggering  paradigm  seems  to  defy  the  underlying 
logic  of  the  conventions  that  paradigm  evolved  from:  a  truly  de  facto  law- triggering 
standard  that  ensured  the  assertion  of  authority  derived  from  the  LOAC  required 
compliance  with  limiting  principles  of  the  same  body  of  law. 

Acknowledging  that  under  the  appropriate  circumstances  armed  forces  are 
bound  to  comply  with  LOAC  principles  when  conducting  counterterror  opera- 
tions will  not  dilute  the  effectiveness  of  this  law.  It  will  instead  ensure  a  balance  of 
authority  and  obligation.  Nor  will  it  result  in  a  parade  of  horribles  because  of  the 


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Geoffrey  S.  Corn 


uncertainty  as  to  what  rules  apply  to  such  operations.  Applying  the  fundamental 
principles  of  the  LOAC  to  such  operations  is  a  feasible  first  step  for  such  regulation, 
and  one  with  which  many  armed  forces  are  familiar  pursuant  to  the  policy  applica- 
tion of  these  same  principles  that  has  been  required  for  decades.  Furthermore,  any 
uncertainty  as  to  the  content  of  regulatory  provisions  derived  from  application  of 
the  LOAC  is  insignificant  in  comparison  to  the  subjection  of  such  operations  to  a 
law  enforcement  regulatory  framework  designed  for  a  radically  different  purpose. 

Nor  do  I  believe  that  such  acknowledgment  will  increase  the  uses  of  combat 
power  by  States.  While  characterizing  counterterror  operations  under  the  LOAC 
framework  will  undoubtedly  trigger  more  expansive  authorities  than  law  enforce- 
ment operations,  requiring  compliance  with  LOAC  principles  of  constraint  will 
limit  the  scope  of  that  authority.  Furthermore,  there  are  other  significant  factors 
that  will  offset  any  tendency  to  treat  such  operations  as  armed  conflict  simply  for 
the  benefit  of  expanded  authority.  These  include  not  only  jus  in  hello  consider- 
ations, which,  when  dealing  with  a  terror  target  in  anything  other  than  a  failed  State 
are  profound,  but  also  domestic  political  considerations,  international  relations 
considerations  and,  perhaps  most  important,  assessment  of  the  most  feasible 
means  to  achieve  the  neutralization  objective.  All  that  is  suggested  here  is  that 
when  a  State,  after  considering  all  these  factors,  chooses  to  unleash  combat  power 
to  achieve  the  national  objective,  the  benefit  of  the  LOAC  regulatory  framework 
should  not  be  denied  simply  because  the  enemy  is  a  transnational  organization 
without  traditional  military  structure. 

Conclusion 

Conflict  classification  is  the  essential  first  step  in  determining  the  rights  and  obliga- 
tions of  parties  involved  in  armed  hostilities.  For  decades,  this  classification  pro- 
cess has  been  premised  on  the  assumption  that  international  law  recognizes  only 
two  types  of  armed  conflict:  inter-State  and  intra-State.  This  led  to  the  evolution  of 
an  "either/or"  law-triggering  paradigm:  either  the  conflict  was  between  two  States, 
satisfying  the  triggering  criteria  of  Common  Article  2,  or  the  conflict  was  between  a 
State  and  a  non-State  armed  entity  within  the  territory  of  the  State,  satisfying  the 
triggering  criteria  of  Common  Article  3. 

The  increasing  prevalence  of  extraterritorial  military  operations  conducted  by 
States  against  non-State  armed  organized  groups  has  resulted  in  an  assertion  that 
such  operations  can  qualify  as  armed  conflicts.  This  theory  of  law  applicability  is 
exemplified  by  the  US  treatment  of  the  struggle  against  al  Qaida  as  an  "armed  con- 
flict," a  position  clearly  reflected  in  the  Department  of  State  enunciation  excerpted 
at  the  beginning  of  this  article.  Although  controversial,  it  seems  undeniable  that 

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this  theory  of  what  can  be  functionally  characterized  as  "transnational"  armed 
conflict  is  gaining  legal  momentum. 

The  assumption  that  such  a  category  of  armed  conflict  can  exist  calls  into  ques- 
tion the  related  assumption  that  military  operations  conducted  by  the  United 
States  against  al  Qaida  in  Afghanistan  could  only  be  categorized  as  falling  within 
the  broader  armed  conflict  against  the  Taliban.  While  such  a  unified  armed  conflict 
theory  is  certainly  plausible,  and  concededly  the  presumptive  position,  it  need  not 
be  the  only  position.  Instead,  a  careful  assessment  of  the  relationship  between  al 
Qaida  and  the  Taliban  is  necessary  to  determine  whether  such  an  outcome  is  justi- 
fiable. If,  as  is  suggested  in  this  article,  the  facts  reveal  that  al  Qaida  did  not  operate 
truly  "on  behalf  of  the  Taliban,  but  instead  had  established  more  of  a  parasitic  re- 
lationship to  serve  its  own  independent  strategic  objectives,  then  this  presumption 
becomes  invalid.  Such  invalidity  suggests  that  the  conflict  between  al  Qaida  and  the 
United  States  in  Afghanistan  can  and  should  be  characterized  as  distinct  from  the 
conflict  between  the  United  States  and  the  Taliban. 

This  conflict  bifurcation  leads  to  another  inevitable  question:  are  extraterrito- 
rial counterterror  operations  armed  conflicts?  Or  are  they  simply  exercises  of  ex- 
traterritorial law  enforcement?  Resolving  this  question  and  determining  the 
most  appropriate  legal  framework  for  the  regulation  of  extraterritorial  military 
operations  directed  against  transnational  terror  operatives  is  no  easy  task,  but  it  is 
essential  because  of  the  increasing  prevalence  of  such  operations.  Since  the 
United  States  began  asserting  it  was  engaged  in  an  armed  conflict  with  al  Qaida, 
scholars,  legal  advisors,  policymakers  and  courts  have  struggled  with  this  ques- 
tion, producing  a  wide  variety  of  outcomes.  Two  major  theories  have  evolved  in 
response  to  this  question.  The  first,  epitomized  by  the  US  position,  is  that  these 
operations  qualify  as  "armed  conflicts"  within  the  meaning  of  international  law, 
triggering  a  heretofore  undefined  package  of  legal  authorities  and  obligations. 
The  second  is  that  armed  conflict  can  only  occur  within  the  inter-State  or  intra- 
state law-triggering  paradigm  established  by  Common  Article  2  and  Common 
Article  3,  and  that  military  operations  can  be  considered  "armed  conflicts"  only  if 
they  can  be  pigeonholed  into  one  of  these  categories.  In  all  other  cases,  including 
the  use  of  combat  power  to  target  terrorist  operatives  in  the  territory  of  another 
State,  the  military  operations  must  be  characterized  as  extraterritorial  law  en- 
forcement activities,  presumably  regulated  by  law  enforcement  authorities  and 
human  rights  obligations. 

This  article  has  asserted  that  this  latter  approach — rejecting  the  possibility  of  an 
armed  conflict  between  a  State  and  a  transnational  non-State  entity — produces  an 
illogical  outcome  disconnected  from  the  underlying  purpose  of  the  LOAC.  By  es- 
sentially pushing  a  square  peg  into  a  round  hole,  it  unjustifiably  denies  the  armed 

210 


Geoffrey  S.  Corn 


forces  and  the  people  they  encounter  on  what  is  indisputably  a  "battlefield"  the 
benefit  of  the  regulatory  framework  developed  specifically  to  limit  the  harmful 
consequences  produced  when  States  unleash  their  combat  power.  While  the  overly 
broad  reach  of  LOAC  authority  resulting  from  the  Bush  administration's  assertion 
of  a  "Global  War  on  Terror"  certainly  justifies  a  cautious  approach  to  the  question 
of  legal  characterization,  an  under-inclusive  backlash  is  equally  invalid. 

What  is  necessary  is  a  careful  assessment  of  the  fundamental  nature  of  military 
operations  on  a  case-by-case  basis.  When  those  operations  are  conducted  pursuant 
to  a  "use  of  deadly  force  as  a  first  resort"  authority — normally  revealed  in  the  form 
of  status-based  rules  of  engagement — it  indicates  an  inherent  invocation  of  the  au- 
thority of  the  LOAC.  Under  such  circumstances,  armed  forces  must  operate  under 
the  obligations  established  by  the  fundamental  principles  of  the  same  body  of  law. 
These  principles  are  generally  well  understood  and  have  formed  the  foundation  for 
operational  regulation  of  a  multitude  of  military  operations  conducted  by  many 
armed  forces  for  decades.  Whatever  uncertainty  that  may  be  inherent  in  these 
principles  is  relatively  insignificant  compared  to  the  far  more  uncertain  regulatory 
content  of  an  extraterritorial  law  enforcement  legal  framework.  What  is  much 
more  problematic,  however,  is  that  military  operations  conducted  pursuant  to 
status-based  rules  of  engagement  are  fundamentally  inconsistent  with  a  law  en- 
forcement legal  framework,  for  the  use  of  deadly  force  as  a  measure  of  first  resort  is 
the  quintessential  nature — and  in  all  likelihood  purpose  for — such  operations.  As 
such,  it  is  the  principles  of  the  LOAC,  and  not  those  related  to  law  enforcement  ac- 
tivities, that  are  most  logically,  pragmatically  and  appropriately  suited  for  such 
operations. 

Notes 

1.  See  The  Report  of  the  UN  Special  Rapporteur  on  Extrajudicial,  Summary  or  Arbitrary 
Executions,  U.N.  Doc.  E/CN.4/2004/7/Add.l  (Mar.  24,  2004). 

2.  See  International  Committee  of  the  Red  Cross,  International  humanitarian  law  and  ter- 
rorism: questions  and  answers  (May  5,  2004),  available  at  http://www.icrc.org/Web/eng/ 
siteeng0.nsf/html/5YNLEV#a3,  asserting  that  unless  associated  with  a  "traditionally"  defined 
armed  conflict  (such  as  Afghanistan),  the  "war  on  terrorism"  is  not  an  armed  conflict: 

However,  much  of  the  ongoing  violence  taking  place  in  other  parts  of  the  world  that  is 
usually  described  as  "terrorist"  is  perpetrated  by  loosely  organized  groups  (networks), 
or  individuals  that,  at  best,  share  a  common  ideology.  On  the  basis  of  currently  available 
factual  evidence  it  is  doubtful  whether  these  groups  and  networks  can  be  characterised 
as  a  "party"  to  a  conflict  within  the  meaning  of  IHL. 

3.  This  rejection  was  evident  from  the  reaction  of  many  of  the  distinguished  experts  assem- 
bled for  the  conference  that  generated  this  article.  Included  among  those  who  explicidy  rejected 
such  a  contention  were  Professor  Michael  Schmitt,  Professor  Charles  Garraway,  Professor 


211 


Making  the  Case  for  Conflict  Bifurcation  in  Afghanistan 

Yoram  Dinstein  and  Professor  Marco  Sassoli.  Other  participants,  including  many  military  prac- 
titioners, seemed  to  find  the  proposition  more  appealing. 

4.  See  Geoffrey  S.  Corn  &  Eric  T.  Jensen,  Transnational  Armed  Conflict:  A  'Principled'  Ap- 
proach to  the  Regulation  of  Counter-Terror  Combat  Operations  (forthcoming  in  ISRAEL  LAW  RE- 
VIEW), available  at  http://papers.ssrn. com/sol3/papers.cfm?abstract_id=  1256380. 

5.  See  Geoffrey  Corn,  Hamdan,  Lebanon,  and  the  Regulation  of  Armed  Conflict:  The  Need  to 
Recognize  a  Hybrid  Category  of  Armed  Conflict,  40  VANDERBILT  JOURNAL  OF  TRANSNATIONAL 
LAW  295, 3 16, 34 1  (2007);  see  also  Geoffrey  Corn  &  Eric  Jensen,  Untying  the  Gordian  Knot:  A  Pro- 
posal for  Determining  Applicability  of  the  Laws  of  War  to  the  War  on  Terror  (forthcoming  in 
TEMPLE  LAW  REVIEW),  available  at  http://papers.ssrn.com/so  13/papers.cfm?abstract_id= 
1083849;  Corn  &  Jensen,  Transnational  Armed  Conflict,  supra  note  4. 

6.  See  Corn,  Hamdan,  Lebanon,  and  the  Regulation  of  Armed  Conflict,  supra  note  5,  at  316, 
341. 

7.  Id. 

8.  Articles  2  and  3  are  referred  to  as  "common"  because  they  are  found  identically  in  each  of 
the  four  Geneva  Conventions.  See  Convention  for  the  Amelioration  of  the  Condition  of  the 
Wounded  and  Sick  in  Armed  Forces  in  the  Field,  Aug.  12,  1949,  6  U.S.T.  31 14,  75  U.N.T.S.  31; 
Convention  for  the  Amelioration  of  the  Condition  of  Wounded,  Sick  and  Shipwrecked  Mem- 
bers of  Armed  Forces  at  Sea,  Aug.  1 2, 1 949, 6  U.S.T.  32 1 7, 75  U.N.T.S.  85;  Convention  Relative  to 
the  Treatment  of  Prisoners  of  War,  Aug.  12, 1949, 6  U.S.T.  3316,  75  U.N.T.S.  135;  and  Conven- 
tion Relative  to  the  Protection  of  Civilian  Persons  in  Time  of  War,  Aug.  12, 1949, 6  U.S.T.  3516, 
75  U.N.T.S  287;  all  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR  (Adam  Roberts  &  Richard 
Guelff  eds.,  3d  ed.  2000)  at  197, 198;  222,  223;  244, 245;  and  301, 302;  respectively.  Article  2  pro- 
vides in  pertinent  part  that  "the  present  Convention  shall  apply  to  all  cases  of  declared  war  or  of 
any  other  armed  conflict  which  may  arise  between  two  or  more  of  the  High  Contracting  Parties 
. . . ,"  i.e.,  international  armed  conflict.  Article  3  applies  to  all  cases  "of  armed  conflict  not  of  an 
international  character  occurring  in  the  territory  of  one  of  the  High  Contracting  Parties . . .,"  i.e., 
non-international  armed  conflict. 

9.  See  Human  Rights  Watch,  Lebanon/Israel:  U.N.  Rights  Body  Squanders  Chance  to  Help 
Civilians  (Aug.  11,  2006),  http://hrw.Org/english/docs/2006/08/l  1/lebano  13969_txt.htm  (state- 
ments by  Louise  Arbour)  [hereinafter  Lebanon/Israel];  see  also  Human  Rights  Watch,  U.N.: 
Open  Independent  Inquiry  into  Civilian  Deaths  (Aug.  8,  2006),  http://hrw.org/english/docs/ 
2006/08/08/lebano  13939.htm  (statements  by  Kofi  Annan)  [hereinafter  Open  Independent 
Inquiry]. 

10.  Recognition  of  this  new  classification  of  armed  conflict  might  be  viewed  by  some  as  sub- 
suming the  continuing  role  for  the  "internal"  armed  conflict  classification.  Such  a  conclusion  is 
somewhat  justified,  because  the  principles  triggered  by  transnational  armed  conflict  would  es- 
sentially be  synonymous  with  those  triggered  by  internal  armed  conflicts.  However,  pragmatic 
considerations  warrant  caution  in  this  regard.  The  entire  rationale  for  proposing  a  transnational 
designation  is  to  respond  to  the  policy  reality  that  States  will  continue  to  seek  to  match  a  charac- 
terization with  the  geographic  scope  of  conflicts  in  which  they  engage. 

11.  Prosecutor  v.  Tadic,  Case  No.  IT-94-1-AR72,  Appeal  on  Jurisdiction,  para.  94  (Oct.  2, 
1995),  reprinted  in  35  INTERNATIONAL  LEGAL  MATERIALS  32  (1996). 

12.  See  Anthony  Cullen,  Key  Developments  Affecting  the  Scope  of  Internal  Armed  Conflict  in 
International  Humanitarian  Law,  183  MILITARY  LAW  REVIEW  66  (2005)  (providing  an  excellent 
analysis  of  the  significance  of  the  Tadic  ruling). 

13.  Tadic,  supra  note  11,  para.  94. 


212 


Geoffrey  S.  Corn 


14.  Hamdan  v.  Rumsfeld,  548  U.S.  557  (2006)  (citations  omitted)  (emphasis  added). 

15.  See  A.P.V.  ROGERS,  LAW  ON  THE  BATTLEFIELD  (1st  ed.  1996). 

16.  See  generally  Leslie  Green,  What  Is — Why  Is  There — the  Law  of  War,  in  THE  LAW  OF 
Armed  Conflict:  Into  the  Next  Millennium  141  (Michael  N.  Schmitt  &  Leslie  C.  Green 
eds.,  1998)  (Vol.  71,  US  Naval  War  College  International  Law  Studies). 

17.  Id. 

18.  See  generally  MAX  BOOT,  SAVAGE  WARS  OF  PEACE:  SMALL  WARS  AND  THE  RISE  OF 

American  Power  (2003). 

19.  See  LESLIE  C.  GREEN,  THE  CONTEMPORARY  LAW  OF  ARMED  CONFLICT  54-55  (2d  ed. 
2000). 

20.  Id. 

21.  See  ROGERS,  supra  note  15. 

22.  GREEN,  supra  note  19,  at  54. 

23.  Id.  at  52. 

24.  Without  even  considering  the  colonial  conflicts  of  this  period  (see  id.  at  54-55),  exam- 
ples of  such  "non  inter-State"  military  operations  include  several  campaigns  conducted  by  the 
armed  forces  of  the  United  States,  such  as  the  operations  during  the  Boxer  Rebellion,  Pershing's 
campaign  against  Pancho  Villa,  and  numerous  "stability"  operations  in  Haiti,  the  Dominican 
Republic,  the  Philippine  Islands  and  Nicaragua.  See  generally  BOOT,  supra  note  18. 

25.  During  this  period,  brutal  internal  conflicts  in  Spain,  Paraguay,  Russia  and  China  chal- 
lenged this  customary  expectation  that  professional  armed  forces  engaged  in  armed  conflict 
would  conduct  themselves  in  accordance  with  principles  of  disciplined  warfare.  The  estimated 
number  of  people  killed  in  civil  wars  during  the  inter-war  years  are  18,800,000,  Russian  Civil 
War  (1918-21);  3,000,000,  Chaco  War  (Paraguay  and  Bolivia)  (1932-35);  2,500,000,  Chinese 
Civil  War  (1945-49)  and  365,000,  Spanish  Civil  War  (1936-39).  Historical  Atlas  of  the  Twen- 
tieth Century,  http://users.erols.eom/mwhite28/20centry.htm#FAQ  (last  visited  Sept.  5, 
2006). 

This  created  a  perceived  failure  of  international  law  to  provide  effective  regulation  for  non- 
international  armed  conflicts,  ultimately  providing  the  motivation  for  the  development  of 
Common  Article  3.  It  is,  however,  worth  questioning  whether  Common  Article  3  is  properly 
understood  as  "necessary"  to  ensure  compliance  with  such  foundational  principles  during  non- 
State  conflicts.  Within  the  context  of  the  history  of  armed  conflicts — a  history  that  was 
characterized  up  until  the  inter-war  years  by  relative  obedience  to  internally  imposed  regulatory 
frameworks  during  all  combat  operations — Common  Article  3  might  instead  be  legitimately 
viewed  as  a  fail-safe  to  provide  the  international  community  a  basis  to  demand  compliance  with 
the  most  fundamental  component  of  such  a  framework:  respect  for  the  humanity  of  persons 
placed  hors  de  combat  when  armed  forces  refuse  to  comply  with  the  customary  standards  of 
conduct  related  to  any  combat  operation,  including  non-international  conflicts. 

26.  According  to  the  International  Committee  of  the  Red  Cross  Commentary: 

Since  1907  experience  has  shown  that  many  armed  conflicts,  displaying  all  the 
characteristics  of  a  war,  may  arise  without  being  preceded  by  any  of  the  formalities  laid 
down  in  the  Hague  Convention.  Furthermore,  there  have  been  many  cases  where 
Parties  to  a  conflict  have  contested  the  legitimacy  of  the  enemy  Government  and 
therefore  refused  to  recognize  the  existence  of  a  state  of  war.  In  the  same  way,  the 
temporary  disappearance  of  sovereign  States  as  a  result  of  annexation  or  capitulation 
has  been  put  forward  as  a  pretext  for  not  observing  one  or  other  of  the  humanitarian 
Conventions.  It  was  necessary  to  find  a  remedy  to  this  state  of  affairs  and  the  change 
which  had  taken  place  in  the  whole  conception  of  such  Conventions  pointed  the  same 


213 


Making  the  Case  for  Conflict  Bifurcation  in  Afghanistan 

way.  The  Geneva  Conventions  are  coming  to  be  regarded  less  and  less  as  contracts 
concluded  on  a  basis  of  reciprocity  in  the  national  interests  of  the  parties,  and  more  and 
more  as  a  solemn  affirmation  of  principles  respected  for  their  own  sake,  a  series  of 
unconditional  engagements  on  the  part  of  each  of  the  Contracting  Parties  'vis-a-vis'  the 
others.  A  State  does  not  proclaim  the  principle  of  the  protection  due  to  prisoners  of  war 
merely  in  the  hope  of  improving  the  lot  of  a  certain  number  of  its  own  nationals.  It  does 
so  out  of  respect  for  the  human  person. 

By  its  general  character,  this  paragraph  deprives  belligerents,  in  advance,  of  the  pretexts 
they  might  in  theory  put  forward  for  evading  their  obligations.  There  is  no  need  for  a 
formal  declaration  of  war,  or  for  the  recognition  of  the  existence  of  a  state  of  war,  as 
preliminaries  to  the  application  of  the  Convention.  The  occurrence  of  de  facto 
hostilities  is  sufficient. 

It  remains  to  ascertain  what  is  meant  by  "armed  conflict."  The  substitution  of  this  much 
more  general  expression  for  the  word  "war"  was  deliberate.  It  is  possible  to  argue  almost 
endlessly  about  the  legal  definition  of  "war."  A  State  which  uses  arms  to  commit  a 
hostile  act  against  another  State  can  always  maintain  that  it  is  not  making  war,  but 
merely  engaging  in  a  police  action,  or  acting  in  legitimate  self-defence.  The  expression 
"armed  conflict"  makes  such  arguments  less  easy.  Any  difference  arising  between  two 
States  and  leading  to  the  intervention  of  members  of  the  armed  forces  is  an  armed 
conflict  within  the  meaning  of  Article  2,  even  if  one  of  the  Parties  denies  the  existence  of 
a  State  of  war. 

See  Commentary  on  Geneva  Convention  III  Relative  to  the  Treatment  of  Prisoners 
OF  WAR  19-23  (Jean  S.  Pictet  ed.,  1960)  (emphasis  added)  [hereinafter  ICRC  COMMENTARY]. 

27.  Id. 

28.  Id.  at  32. 

29.  Prosecutor  v.  Tadic,  Case  No.  IT-94-1-AR72,  Appeal  on  Jurisdiction,  paras.  96-127 
(Oct.  2,  1995),  reprinted  in  35  INTERNATIONAL  LEGAL  MATERIALS  32  (1996).  It  is  interesting  to 
note  that  the  Tribunal  cites  US  policy  in  support  of  this  conclusion: 

The  Standing  Rules  of  Engagement  issued  by  the  US  Joint  Chiefs  of  Staff  spell  this  out: 
U.S.  forces  will  comply  with  the  Laws  of  War  during  military  operations  involving 
armed  conflict,  no  matter  how  the  conflict  may  be  characterized  under  international 
law,  and  will  comply  with  its  principles  and  spirit  during  all  other  operations. 

Id. 

30.  Id.,  para.  70. 

3 1 .  Nonetheless,  it  is  interesting  to  note  that  the  qualifying  language  of  "within  a  State"  was 
not  applied  to  "protracted  armed  violence  between  governmental  authorities  and  organized 
armed  groups."  Id.  This  does  lend  some  support  for  application  of  the  principles  of  the  law  of 
war  to  armed  conflicts  involving  protracted  violence  outside  either  of  these  traditional  categories 
of  conflict. 

32.  See  id.,  paras.  96-127. 

33.  See  id.,  para.  126. 

34.  See  id. 

35.  See  Gaby  El  Hakim  &  Joe  Karam,  Beirut  Bleeding:  Law  Under  Attack  in  Lebanon,  http:// 
jurist.law.pitt.edu/forumy/2006/07/beirut-bleeding-law-under-attack-in.php;  see  also  Anthony 


214 


Geoffrey  S.  Corn 


D'Amato,  War  Crimes  and  the  Middle  East  Conflict,  http://jurist.law.pitt.edu/forumy/2006/07/ 
war-crimes-and-mideast-conflict.php;  Nick  Wadhams,  Annan:  Israel  Raid  May  Be  Part  of Pat- 
tern, http://apnews.myway.com/article/20060808/D8JC0D5O2.html. 

36.  Adam  Roberts,  Counter-terrorism,  Armed  Force  and  the  Laws  of  War,  SURVIVAL,  Spring 
2002,  at  7,  available  at  http://www.ssrc.org/septl  1/essays/roberts.htm. 

37.  See  ICRC  COMMENTARY,  supra  note  26,  at  57. 

38.  Id. 

39.  Mat 62. 

40.  Comments  of  W.  Hays  Parks  at  the  Naval  War  College  Workshop,  The  War  in  Afghani- 
stan: A  Legal  Analysis  (June  25-27,  2008). 

41.  See  Al  Qaida  and  Taliban,  BOOKRAGS,  http://www.bookrags.com/research/al-qaida 
-and-taliban-aaw-04/  (last  visited  Jan.  30,  2009). 

42.  See  Lebanon/Israel,  supra  note  9;  Open  Independent  Inquiry,  supra  note  9. 

43.  See  Kenneth  Watkin,  Controlling  the  Use  of  Force:  A  Role  for  Human  Rights  Norms  in  Con- 
temporary Armed  Conflict,  98  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  1  (2004)  (discuss- 
ing the  complex  challenge  of  conflict  categorization  related  military  operations  conducted 
against  highly  organized  non-State  groups  with  transnational  reach);  see  also  Kirby  Abott,  Ter- 
rorists: Combatants,  Criminals,  or . . .  ?,  in  CANADIAN  COUNSEL  ON  INTERNATIONAL  LAW,  THE 

measures  of  international  law:  effectiveness,  fairness,  and  validity  366  (2004); 
Jennifer  Elsea,  Congressional  Research  Service,  Terrorism  and  the  Law  of  War: 
Trying  Terrorists  as  War  Criminals  before  Military  Commissions  (2001),  available  at 
http://www.au.af.mil/au/awc/awcgate/crs/rl31191.pdf  (analyzing  whether  the  attacks  of  Sep- 
tember 11,  2001  triggered  the  law  of  war). 

44.  This  uncertainty  is  clearly  reflected  in  the  analysis  prepared  by  the  Office  of  Legal  Coun- 
sel in  response  to  the  terrorist  attacks  of  September  1 1, 2001.  Compare  Memorandum  from  John 
C.  Yoo,  Deputy  Assistant  General  Counsel  &  Robert  Delahunty,  Special  Counsel,  Office  of  Legal 
Counsel,  Department  of  Justice,  to  William  J.  Haynes  II,  General  Counsel,  Department  of  De- 
fense, Re:  Application  of  Treaties  and  Laws  to  al  Qaeda  and  Taliban  Detainees  (Jan.  9,  2002), 
reprinted  in  THE  TORTURE  PAPERS:  THE  ROAD  TO  ABU  GHRAIB  38  (Karen  J.  Greenberg  &  Joshua 
Dratel  eds.,  2005),  available  at  http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/ 
02.0 1.09.pdf  (concluding,  inter  alia,  that  Common  Article  3  was  inapplicable  to  the  armed  con- 
flict with  al  Qaida  because  Common  Article  3  applied  exclusively  to  intra-State  conflicts  and 
conflict  with  al  Qaida  was  "international"  in  scope),  with  Memorandum  from  William  H.  Tart 
IV,  Legal  Adviser,  Department  of  State,  to  Counsel  to  the  President,  Comments  on  Your  Paper 
on  the  Geneva  Conventions  (Feb.  2, 2002),  reprinted  in  TORTURE  PAPERS,  supra,  at  129,  available 
at  http://www.fas.org/sgp/othergov/taft.pdf  (arguing  that  the  Geneva  Conventions  should  be  in- 
terpreted to  apply  to  the  armed  conflict  with  both  the  Taliban  and  al  Qaida);  see  also  Report  of 
the  Commission  of  Inquiry  on  Lebanon  Pursuant  to  Human  Rights  Council  Resolution  S-2/1, 
U.N.  Doc.  A/HRC/3/2  (Nov.  23,  2006),  available  at  http://www.ohchr.org/english/bodies/ 
hrcouncil/docs/specialsession/A.-HRC.3.2.pdf  ("[t]he  hostilities  that  took  place  from  12  July  to 
14  August  2006  constitute  an  international  armed  conflict  to  which  conventional  and  customary 
international  humanitarian  law  and  international  human  rights  law  are  applicable"). 

45.  548  U.S.  557  (2006). 

46.  Hamdan  v.  Rumsfeld,  415  F.3d  33  (D.C.  Cir.  2005). 

47.  Id.  at  44  (Williams,  Sr.  Judge,  concurring). 

48.  See  Department  of  Defense,  DoD  Directive  5100.77,  DoD  Law  of  War  Program  (1998). 

49.  The  purported  justification  for  this  omission  is  that  each  subordinate  service  is  then  able 
to  define  the  content  of  this  term  for  purposes  of  its  forces.  Leaving  definition  of  these  principles 


215 


Making  the  Case  for  Conflict  Bifurcation  in  Afghanistan 

to  the  individual  services  creates  obvious  concerns  of  inconsistent  practice.  This  concern  is  unac- 
ceptable in  the  contemporary  environment  of  joint  operations.  However,  it  is  likely  that  a  joint 
standard  will  be  established  by  the  Department  of  Defense  in  a  Department  of  Defense  Law  of 
War  Manual,  which  is  currently  under  development. 

50.  See  UK  MINISTRY  OF  DEFENCE,  THE  MANUAL  FOR  THE  LAW  OF  ARMED  CONFLICT  para. 
2.2  (2004)  [hereinafter  UK  MANUAL]  ("Military  necessity  permits  a  state  engaged  in  an  armed 
conflict  to  use  only  that  degree  and  kind  of  force,  not  otherwise  prohibited  by  the  law  of  armed 
conflict,  that  is  required  in  order  to  achieve  the  legitimate  purpose  of  the  conflict,  namely  the 
complete  or  partial  submission  of  the  enemy  at  the  earliest  possible  moment  with  the  minimum 
expenditure  of  life  and  resources");  see  also  William  Downey,  The  Law  of  War  and  Military  Ne- 
cessity, 47  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  251  (1953). 

51.  International  Middle  East  Media  Center  &  Agencies,  United  Nations  Official:  Israeli 
Bombardment  of  Lebanon  Violates  Humanitarian  Law,  IMEMC  NEWS,  July  23,  2006,  http:// 
www.imemc.org/index.php?option  =com_content&task=view&id=20260&Itemid=173. 

52.  See  UK  MANUAL,  supra  note  50,  para.  2.1  (emphasis  added).  The  manual  also  provides 
an  extensive  definition  of  these  principles. 

53.  See  Department  of  Defense,  DoD  Directive  231 1.01E,  DoD  Law  of  War  Program  (2006) 
[hereinafter  Directive  231 1.0 IE].  The  exact  language  is  "It  is  DoD  policy  that:  Members  of  the 
DoD  Components  comply  with  the  law  of  war  during  all  armed  conflicts,  however  such  conflicts 
are  characterized,  and  in  all  other  operations."  Id.,  para.  4. 1 ;  see  also  Timothy  E.  Bullman,  A  Dan- 
gerous Guessing  Game  Disguised  as  an  Enlightened  Policy:  Untied  States  Laws  of  War  Obligations 
During  Military  Operations  Other  Than  War,  159  MILITARY  LAW  REVIEW  152  (1999)  (analyzing 
the  potential  that  the  US  law  of  war  policy  could  be  asserted  as  evidence  of  a  customary  norm  of 
international  law). 

Other  armed  forces  have  implemented  analogous  policy  statements.  For  example,  the 
German  policy  to  apply  the  principles  of  the  law  of  war  to  any  armed  conflict,  no  matter  how 
characterized,  was  cited  by  the  ICTY  in  the  Tadic  jurisdictional  appeal  as  evidence  of  a  general 
principle  of  law  extending  application  of  the  law  of  war  principles  derived  from  treaties 
governing  international  armed  conflict  to  the  realm  of  internal  armed  conflict.  See  Tadic,  supra 
note  29,  para.  118  (citing  HUMANITARES  VOLKERRECHT  IN  BEWAFFNETEN  KONFLIKTEN — 
HANDBUCH  211,  DSK  AV207320065  (1992) [hereinafter  German  Military  Manual  of  1992]); 
reprinted  in  35  INTERNATIONAL  LEGAL  MATERIALS  32  J(1996);  see  also  Bullman,  A  Dangerous 
Guessing  Game,  supra. 

This  policy  has  recently  been  updated,  and  has  been  made  even  more  emphatic  by  omitting 
the  "principles"  qualifier  to  require  compliance  with  the  law  of  war  during  all  military 
operations.  According  to  the  most  recent  version:  "It  is  DoD  policy  that:  Members  of  the  DoD 
Components  comply  with  the  law  of  war  during  all  armed  conflicts,  however  such  conflicts  are 
characterized,  and  in  all  other  military  operations."  Directive  231 1.0 IE,  supra,  para.  4. 

54.  This  term  will  be  used  throughout  this  article  as  a  convenient  reference  for  the  variety  of 
military  operations  conducted  by  the  United  States  subsequent  to  September  11,  2001.  Use  of 
this  term  is  not  intended  as  a  reflection  on  this  author's  position  on  the  legitimacy  of  characteriz- 
ing these  operations  as  a  "war."  While  the  author  acknowledges  the  hyperbolic  nature  of  this 
term,  it  is  intended  to  refer  to  combat  military  operations  against  armed  and  organized  opposi- 
tion groups. 

55.  Interview  with  W.  Hays  Parks,  a  senior  attorney  for  the  Defense  Department  and  recog- 
nized expert  on  the  law  of  armed  conflict.  Parks  is  the  chair  of  the  Department  of  Defense  Law  of 
War  Working  Group,  and  one  of  the  original  proponents  of  the  Law  of  War  Program. 


216 


Geoffrey  S.  Corn 


56.  For  example,  the  uncertainty  related  to  the  application  of  the  laws  of  war  to  Operation 
Just  Cause  in  Panama  is  reflected  in  the  following  excerpt  from  a  Department  of  State  submis- 
sion related  to  judicial  determination  of  General  Noriega's  status: "  [T]  he  United  States  has  made 
no  formal  decision  with  regard  to  whether  or  not  General  Noriega  and  former  members  of  the 
PDF  charged  with  pre-capture  offenses  are  prisoners  of  war,  but  has  stated  that  each  will  be  pro- 
vided all  prisoner  of  war  protections  afforded  by  the  law  of  war."  See  Gov't  Resp.  to  Def.  Post- 
Hearing  Memo,  of  Law,  Sept.  29,  1992,  at  8,  cited  in  United  States  v.  Noriega,  808  F.  Supp.  791 
(S.D.  Fla.  1992). 

In  Somalia,  although  US  forces  engaged  in  intense  combat  operations  against  non-State 
organized  armed  militia  groups  (see  MARK  BOWDEN,  BLACK  HAWK  DOWN:  A  STORY  OF  MODERN 
WAR  (1999),  there  was  never  a  formal  determination  of  the  status  of  the  conflict.  See 
Memorandum  from  Lieutenant  General  Robert  B.  Johnston,  Commander,  Unified  Task  Force 
Somalia,  to  All  Subordinate  Unified  Task  Force  Commanders,  Subj:  Detainee  Policy  (Feb.  9, 
1993). 

57.  INSTITUTE  OF  INTERNATIONAL  LAW,  THE  LAWS  OF  WAR  ON  LAND  (1880),  available  at 
http://www.icrc.org/ihl.nsf/FULL/  140?OpenDocument. 

58.  Id.,  Preface. 

59.  See  Prosecutor  v.  Tadic,  Case  No.  IT-94- 1 -AR72,  Appeal  on  Jurisdiction,  para.  118  (Oct. 
2, 1995),  reprinted  in  35  INTERNATIONAL  LEGAL  MATERIALS  32  (1996)  (citing  the  German  Mili- 
tary Manual  of  1992,  the  relevant  provision  of  which  is  translated  as  follows:  "Members  of  the 
German  army,  like  their  Allies,  shall  comply  with  the  rules  of  international  humanitarian  law  in 
the  conduct  of  military  operations  in  all  armed  conflicts,  whatever  the  nature  of  such  conflicts." 
German  Military  Manual  of  1992);  see  also  UK  Manual,  supra  note  50,  para.  14.10  (which  indi- 
cates that  during  what  it  defines  as  "Peace  Support  Operations" — military  operations  that  do 
not  legally  trigger  application  of  the  law  of  armed  conflict — "Nevertheless,  such  fighting  does 
not  take  place  in  a  legal  vacuum.  Quite  apart  from  the  fact  that  it  is  governed  by  national  law  and 
the  relevant  provisions  of  the  rules  of  engagement,  the  principles  and  spirit  of  the  law  of  armed 
conflict  remain  relevant"). 

60.  In  1 999,  the  Secretary- General  of  the  United  Nations  issued  a  bulletin  titled  "Observance 
by  United  Nations  forces  of  international  humanitarian  law."  This  bulletin  mandated  compli- 
ance with  foundational  principles  of  the  law  of  war  (international  humanitarian  law)  during  any 
operation  that  qualified  as  an  "armed  conflict."  No  characterization  qualification  was  included, 
and  the  application  paragraph  demonstrates  an  extremely  expansive  interpretation  of  the  con- 
cept of  armed  conflict  to  which  such  principles  apply: 

Section  1 

Field  of  application 

1.1  The  fundamental  principles  and  rules  of  international  humanitarian  law  set  out  in 

the  present  bulletin  are  applicable  to  United  Nations  forces  when  in  situations  of  armed 

conflict  they  are  actively  engaged  therein  as  combatants,  to  the  extent  and  for  the 

duration  of  their  engagement.  They  are  accordingly  applicable  in  enforcement  actions, 

or  in  peacekeeping  operations  when  the  use  of  force  is  permitted  in  self-defence. 

UN  Secretary-General,  Bulletin  on  the  Observance  by  United  Nations  forces  of  international 

humanitarian  law,   U.N.   Doc.   ST/SGB/1999/13,   reprinted  in   38   INTERNATIONAL  LEGAL 

MATERIALS  1656(1999). 

61.  See  Noriega,  supra  note  56  (indicating  that  a  policy-based  application  of  the  laws  of  war 
is  insufficient  to  protect  the  rights  of  General  Noriega  because  it  is  subject  to  modification  at  any 
time  at  the  will  of  the  executive) . 


217 


Making  the  Case  for  Conflict  Bifurcation  in  Afghanistan 

62.  A  brief  comment  here  about  what  some  scholars  have  characterized  as  "militarized"  law 
enforcement.  Pursuant  to  this  theory,  the  overarching  legal  framework  for  extraterritorial 
counterterror  operations  is  best  defined  as  a  one  derived  from  law  enforcement  authorities;  but 
under  certain  circumstances  when  the  use  of  combat  power  to  augment  law  enforcement  capa- 
bilities is  required,  the  presumptive  law  enforcement  activity  would  be  considered  "militarized." 
This  theory  seems  to  be  consistent  with  the  thesis  of  this  article,  if  it  suggests  that  when  law  en- 
forcement activities  become  "militarized,"  that  ratcheting  up  of  means  brings  into  effect  a  differ- 
ent legal  framework,  namely  LOAC  principles.  If,  however,  the  suggestion  is  that  when  a  State 
"militarizes"  law  enforcement  activities,  the  armed  forces  engaged  in  operations  are  bound  to 
comply  with  a  law  enforcement  legal  framework,  then  it  seems  that  the  effectiveness  of  the 
"militarization"  of  the  activity  would  be  disabled  due  to  an  incongruous  operational  authority 
equation. 

One  middle  ground  that  might  also  be  suggested  by  this  concept  is  that  armed  forces  would 
be  regulated  by  LOAC  principles  during  the  operational  phase  of  "militarized"  law  enforcement, 
but  that  individuals  captured  and  detained,  once  removed  from  the  area  of  immediate  conflict, 
would  be  subject  to  a  law  enforcement  legal  regime.  Such  a  hybrid  approach  seems  responsive  to 
the  primary  objection  leveled  against  the  US  invocation  of  LOAC  authorities  vis-a-vis  captured 
terrorists — namely  their  indefinite  detention  without  trial  on  the  basis  of  military  necessity.  It 
also  seems  to  accommodate  the  needs  of  the  armed  forces  engaged  in  such  operations  by  providing 
them  with  the  most  logical  legal  framework  during  those  operations.  One  other  potentially 
significant  benefit  of  such  a  hybrid  approach  is  that  it  would  eliminate  any  incentive  for  an 
unjustified  invocation  of  LOAC  authority  as  a  subterfuge  for  avoiding  normal  legal  process 
related  to  detention. 

It  does,  however,  seem  difficult  to  dispute  the  logic  of  detaining  an  individual  who  has  acted  in 
what  is  for  all  intents  and  purposes  a  belligerent  capacity  against  a  State.  The  legitimacy  of  this 
"militarized"  law  enforcement  theory  rests  on  the  assumption  that  existing  domestic  legal 
authority  for  the  trial  and  incapacitation  of  such  an  individual  will  satisfy  the  necessity  of 
preventing  a  return  to  belligerent  activities.  If  this  assumption  is  valid,  then  the  hybrid  approach 
holds  great  merit.  If,  however,  the  assumption  is  invalid,  it  seems  inconsistent  with  a  LOAC- 
based  authority  that  led  to  the  capture  of  such  an  individual  to  require  release  with  full 
knowledge  of  a  likely  return  to  belligerent  activities. 


218 


IX 


Law  of  War  Issues  in  Ground  Hostilities 

in  Afghanistan 

Gary  D.  Solis* 

Introduction 

British  soldiers  first  came  to  Afghanistan  in  1839,  hoping  to  extend  the  Em- 
pire and  counter  growing  Russian  influence  there.  That  four-year  conflict 
ended  in  the  massacre  of  most  of  the  retreating  British  force  of  16,500,  demonstrat- 
ing that,  while  Afghanistan  could  be  conquered,  holding  it  was  another  thing.  In 
1878,  again  fearing  Russian  influence  in  the  region,  England  once  more  invaded 
Afghanistan  from  its  base  in  India.  Britain's  early  victory  and  regime  change  nearly 
proved  Pyrrhic.  With  their  occupation  unexpectedly  costly  in  men  and  treasure,  the 
English  gained  control  of  Afghan  foreign  policy,  then  withdrew  most  of  their  forces 
to  India.  In  1919,  when  remaining  British  units  were  attacked  by  Afghan  forces,  the 
British  initiated  a  third  foray  into  Afghanistan,  this  one  more  successful  than  the 
prior  two  adventures.  Afghanistan  nevertheless  gained  its  independence  in  1921. 

Reminiscent  of  the  British  incursions  into  Afghanistan,  from  1978  to  1992  the 
Soviet  Union  sponsored  an  armed  conflict  between  the  communist  Afghan  gov- 
ernment and  anti-communist  Muslim  guerrillas.  For  their  trouble,  the  Russians 
learned  the  grim  lesson  of  the  Kipling  poem,  "Young  British  Soldier":  "When 
you're  wounded  and  left  on  Afghanistan's  plains,  And  the  women  come  out  to  cut 
up  what  remains,  Jest  roll  to  your  rifle  and  blow  out  your  brains,  An'  go  to  your 
Gawd  like  a  soldier. ..." 


Adjunct  Professor  of  Law,  Georgetown  University  Law  Center. 


Law  of  War  Issues  in  Ground  Hostilities  in  Afghanistan 

Now,  prepared  to  overcome  history  with  modern  weapons  and  new  tactics,  the 
United  States  is  in  the  seventh  year  of  its  war  in  Afghanistan.  Challenges  abound.  It 
is  a  nation  of  massive  mountain  ranges  and  remote  valleys  in  the  north  and  east, 
with  desert-like  conditions  on  the  plains  to  the  south  and  west.  Road  and  rail  sys- 
tems remain  minimal  and  many  of  those  that  do  exist  are  in  disrepair.  About  the 
size  of  Texas,  Afghanistan  has  a  population  of  around  twenty- four  million.  Now  it 
has  a  visiting  military  population  embedded  in  the  International  Security  Assis- 
tance Force  (ISAF)  numbering  about  45,000  ground  personnel,  including  15,000 
US  troops,  with  another  19,000  US  troops  assigned  to  Joint  Task  Force  101,  a  part 
of  Operation  Enduring  Freedom  forces  assigned  to  Afghanistan.1 

This  article  offers  a  summary  examination  of  some  of  the  law  of  armed  conflict 
(LOAC)  issues  encountered  in  US  ground  combat  in  Afghanistan.  These  issues 
were  discussed  during  the  June  2008  Naval  War  College  workshop,  "The  War  in 
Afghanistan,"  which  was  the  genesis  of  this  volume  of  the  "Blue  Book."  Although 
it  is  a  conflict  whose  ending  remains  to  be  written,  much  of  its  LOAC  outlines  are 
already  discernable.  Difficult  issues  involving  conflict  and  individual  status,  ques- 
tions about  prisoner  of  war  (POW)  status,  arguments  regarding  targeted  killing 
and  "direct  participation,"  the  questionable  deportation  of  individuals  from  Af- 
ghanistan to  Guantanamo  Bay,  and  a  disturbing  number  of  war  crime  allegations 
all  arose  in  workshop  discussions  of  ground  combat  in  Afghanistan.  This  summary 
account  reflects  a  few  of  those  issues  as  seen  through  the  lens  of  one  participant. 
Not  all  attendees  will  agree  with  all  of  these  assessments,  but  they  provide  depar- 
ture points  for  discussion  at  future  workshops. 

Armed  Conflict  Commences 

The  genesis  of  America's  war  in  Afghanistan  is  well  known.  Long  before  the  attacks 
of  September  1 1, 2001,  the  United  States  was  concerned  with  the  direction  taken  by 
Afghanistan,  as  the  Department  of  State's  Coordinator  for  Counterterrorism  said 
in  a  1999  Senate  hearing: 

Afghanistan  has  become  a  new  safehaven  for  terrorist  groups.  In  addition  to  bin  Ladin 
and  al-Qa'ida,  the  Taliban  play  host  to  members  of  the  Egyptian  Islamic  Jihad,  the 
Algerian  Armed  Islamic  [G]roup,  Kashmiri  separatists,  and  a  number  of  militant 
organizations  from  Central  Asia,  including  terrorists  from  Uzbekistan  and  Tajikistan.2 

After  the  9-11  attacks,  President  George  W.  Bush  demanded  that  Afghanistan 
close  its  terrorist  camps  and  hand  over  al  Qaeda  leaders  in  hiding  there.3  As  Profes- 
sor Dinstein  points  out,  an  ultimatum  from  one  government  to  another,  setting  a 


220 


Gary  D.  Solis 

deadline  and  warning  that  war  will  immediately  commence  once  the  deadline 
lapses,  will,  at  the  designated  time,  indicate  the  initiation  of  armed  conflict.  Al- 
though there  was  no  deadline  in  the  Bush  demand,  it  was  clear  that  the  Taliban 
were  required  to  act  immediately  or  armed  conflict  would  be  initiated  by  the 
United  States.4  Such  was  the  case.  "  [US]  military  operations  against  Taliban  and  Al 

Qaeda  targets  in  Afghanistan  commenced  on  October  7th There  ought  to  be  no 

doubt  that  October  7th — and  not  September  1 1th — is  the  date  of  the  beginning  of 
the  war  between  the  United  States  and  Afghanistan."5  In  support  of  the  American 
initiation  of  armed  conflict,  the  United  Nations  Security  Council  passed  Resolu- 
tion 1386,  authorizing  establishment  of  an  International  Security  Assistance  Force 
to  maintain  security  in  and  around  Kabul,  after  the  fall  of  the  Taliban.  States  partic- 
ipating in  the  ISAF  were  authorized  "to  take  all  necessary  measures  to  fulfil  its 
mandate."6 

Shifting  Conflict  Status 

From  the  outset,  a  unique  aspect  of  the  ground  war  in  Afghanistan  has  been  the 
heavy  use  of  Special  Forces: 

Army  Special  Forces  (SF)  was  tested  to  a  degree  not  seen  since  the  Vietnam  War.  With 
little  time  to  prepare  for  this  mission,  SF  teams  were  to  land  by  helicopter  deep  in 
hostile  territory,  contact  members  of  the  Northern  Alliance,  coordinate  their  activities 
in  a  series  of  offensives  .  .  .  and  change  the  government  of  Afghanistan  so  that  the 
country  was  no  longer  a  safe  haven  for  terrorists.7 

Army  SF  units  were  the  first  US  military  personnel  in  Afghanistan  for  Operation 
Enduring  Freedom,  as  the  invasion  was  denominated.  A  first  twelve-man  SF  team 
was  inserted  on  October  19,  2001,  joining  with  a  Northern  Alliance  Uzbek  com- 
mander, Abdul  Rashid.8  SF  forces  would  carry  the  brunt  of  US  fighting  for  the  brief 
Common  Article  29  period  of  the  Afghan  conflict.  The  Northern  Alliance  (the 
United  Islamic  Front  for  the  Salvation  of  Afghanistan)  had  battled  the  Taliban  gov- 
ernment since  the  Alliance's  formation  in  1996,  in  a  non-international  armed  con- 
flict. Now,  in  the  north  of  Afghanistan,  SF/Northern  Alliance  operations  took  place 
near  Mazar-e  Sharif,  Kondoz  and  Taloqan.  In  other  areas  the  Northern  Alliance 
continued  its  independent  conflict  with  the  Taliban  central  government. 

Meanwhile,  in  the  south  of  Afghanistan,  on  the  night  of  October  19-20,  an  in- 
ternational armed  conflict  opened  when  US  SF  and  Ranger  forces  made  a  night- 
time parachute  drop  to  initiate  a  raid  on  Kandahar,  fighting  Taliban  units. 
Common  Article  2  and  Common  Article  310  conflicts  were  being  fought  at  the 


221 


Law  of  War  Issues  in  Ground  Hostilities  in  Afghanistan 

same  time  in  a  single  country.  "The  fact  that  a  belligerent  State  is  beset  by  enemies 
from  both  inside  and  outside  its  territory  does  not  mean  that  the  international  and 
internal  armed  conflicts  necessarily  merge."11  A  few  weeks  later,  on  November  13, 
with  the  capture  of  Kabul  by  Northern  Alliance,  US  and  British  forces,  the  interna- 
tional armed  conflict  began  to  ebb,  but  significant  LOAC  issues  were  beginning  to 
emerge. 

Individual  Status  and  Prisoner  of  War  Issues 

The  US  Army's  official  history  of  Operation  Enduring  Freedom  notes,  "At  this 
point  the  wholesale  surrender  of  the  Taliban  forces  began  to  cause  problems."12 
More  than  3,500  Taliban  fighters  had  surrendered  around  Kondoz.  Several  thousand 
more  were  captured  by  Northern  Alliance  forces  near  Mazar-e  Sharif.  Douglas 
Feith,  then  Under  Secretary  of  Defense  for  Policy,  writes,  "The  Pentagon's  leader- 
ship appreciated  the  importance  of  honoring  the  Geneva  Conventions,  but  issues 
arose  time  and  again  that  required  the  very  difficult  balancing  of  weighty  but  com- 
peting interests:  on  interrogation  methods  .  .  .  and  on  whether  to  prosecute  indi- 
viduals as  criminals  or  simply  continue  to  hold  them  as  enemy  combatants."13  US 
efforts  to  "balance"  the  Geneva  Conventions  against  interrogation  methods  and 
prosecution  choices  did  not  meet  with  notable  success. 

What  was  the  status  of  Taliban  captives  taken  in  the  brief  Common  Article  2 
phase  of  the  armed  conflict?  Did  they  qualify  as  POWs?  Were  they  members  of  the 
armed  forces  of  a  party  to  the  conflict?  Additional  Protocol  I  defines  an  armed  force 
to  include 

all  organized  armed  forces,  groups  and  units  which  are  under  a  command  responsible 
to  that  Party  for  the  conduct  of  its  subordinates,  even  if  that  Party  is  represented  by  a 
government  or  an  authority  not  recognized  by  an  adverse  party.  Such  armed  forces 
shall  be  subject  to  an  internal  disciplinary  system  which,  inter  alia,  shall  enforce 
compliance  with  the  rules  of  international  law  applicable  in  armed  conflict.14 

Considering  that  definition,  but  for  their  compliance  with  international  law,  the 
Taliban  appear  to  qualify  as  the  armed  forces  of  Afghanistan,  entitled  to  POW  status 
if  captured  in  a  Common  Article  2  conflict.15 

Or  were  Afghanistan's  Taliban  akin  to  a  post-World  War  I  Freikorps  in  defeated 
Germany?  Consisting  of  private  paramilitary  groups,  ultraconservative  and  highly 
nationalistic,  more  than  sixty  Freikorps  proliferated  throughout  Germany  in  1919, 
one  of  them  becoming  the  National  Socialist  German  Workers'  Party — the  Nazi 
Party.  But  in  1920  the  Nazis  were  just  another  Freikorps,  with  an  allegiance  not  to 


222 


Gary  D.  Solis 

any  German  government  but  to  their  own  Freikorps.16  There  is  an  argument  that 
Afghanistan's  armed  forces  ceased  to  exist  after  the  fall  of  the  communist 
Najibullah  government  in  September  1996  and  were  supplanted  by  rival  Freikorps- 
like  "armies,"  the  Taliban  being  one  of  the  more  powerful.  The  argument  contin- 
ues that  there  is  no  showing  that  the  Taliban  became  the  armed  forces  of  Afghani- 
stan, professing  allegiance  to  the  government  of  the  State.17  The  Commentary  on 
the  Additional  Protocols  notes,  "[C]ombatant  status  is  given  to  regular  forces  only 
which  profess  allegiance  to  a  government  or  authority . . .  which  claims  to  represent 
a  State  which  is  a  Party  to  the  conflict."18  Accordingly,  under  this  construct  the 
Taliban  were  not  "the  armed  forces  of  a  Party  to  the  conflict."19  Rather,  the  argu- 
ment goes,  they  were  merely  the  armed  group  in  control  of  Afghanistan  and  its 
government. 

But  the  stronger  case  is  that  the  Taliban  were  indeed  the  armed  forces  of  Af- 
ghanistan. Starting  in  1954,  the  International  Law  Commission  (ILC)  developed 
guidelines  for  State  responsibility.  Article  8  of  the  ILC's  2001  document,  Responsi- 
bility of  States  for  Internationally  Wrongful  Acts,  reads:  "The  conduct  of  a  person 
or  group  of  persons  shall  be  considered  an  act  of  a  State  under  international  law  if 
the  person  or  group  of  persons  is  in  fact  acting  on  the  instructions  of,  or  under  the 
direction  or  control  of,  that  State  in  carrying  out  the  conduct."20  That  guidance, 
combined  with  the  plain  language  of  Additional  Protocol  I's  Article  43.1,  leads  to 
the  conclusion  that  the  Taliban  were  the  armed  forces  of  Afghanistan. 

Accepting,  arguendo,  that  the  Taliban  were  Afghanistan's  armed  forces  during 
the  period  of  the  Common  Article  2  conflict,  did  its  captured  fighters  merit  POW 
status  as  members  of  "the  armed  forces  of  a  Party  to  the  conflict"?21  Applying  the 
four  conditions  for  lawful  combatancy  and  POW  status  upon  capture,  the  answer 
is  reasonably  clear:  although  they  were  the  armed  forces  of  Afghanistan,  they  did 
not  wear  uniforms  or  other  distinctive  fixed  sign.  Black  turbans,  common  to  many 
males  in  the  region,  do  not  suffice. 

Since  the  [four]  conditions  are  cumulative,  members  of  the  Taliban  forces  failed  to 
qualify  as  prisoners  of  war  under  the  customary  law  of  war  criteria.  These  criteria  admit 
no  exception,  not  even  in  the  unusual  circumstances  of . . .  the  Taliban  regime.  To  say 
that  '[t]he  Taliban  do  not  wear  uniforms  in  the  traditional  western  sense'  is  quite 
misleading,  for  the  Taliban  forces  did  not  wear  any  uniform  in  any  sense  at  all . . .  .22 

Throughout  the  Common  Article  2  phase  of  the  conflict  they  failed  to  distin- 
guish themselves  and  were  not  entitled  to  POW  status.  Although  there  are  rea- 
soned views  in  disagreement,23  the  Taliban  captured  during  the  Common  Article  2 


223 


Law  of  War  Issues  in  Ground  Hostilities  in  Afghanistan 

US  invasion  were  not  merely  soldiers  out  of  uniform — or  out  of  a  Western  concep- 
tion of  a  uniform.  They  were  not  POWs. 

What  then  was  their  status?  Given  the  definition  of  civilians  in  Article  50  of  Ad- 
ditional Protocol  I,  they  were  simply  civilians  and,  being  directly  involved  in  an  in- 
ternational armed  conflict,  they  were  unprivileged  belligerents,  i.e.,  civilians  who 
took  a  direct  part  in  hostilities,  to  be  captured  and  tried  under  military  or  Afghan 
domestic  law — not  for  being  unlawful  combatants,  which  is  not  a  crime  in  and  of 
itself,  but  for  the  unlawful  acts  that  rendered  them  unlawful  combatants. 

One  may  question  whether  it  would  not  have  been  wise  to  have  a  competent  tri- 
bunal determine  the  status  of  those  Taliban  captured  during  the  international 
phase  of  the  conflict  since  their  presumptive  status  upon  capture  was  POW.24  But 
such  tribunals  are  called  for  only  in  cases  of  doubt  regarding  the  captive's  status. 
Was  there  doubt?25  The  US  Congressional  Research  Service  specifies  several  rea- 
sons for  not  granting  POW  status: 

The  Administration  has  argued  that  granting  [al  Qaeda  or  Taliban]  detainees  POW 
status  would  interfere  with  efforts  to  interrogate  them,  which  would  in  turn  hamper  its 
efforts  to  thwart  further  attacks.  Denying  POW  status  may  allow  the  Army  to  retain 
more  stringent  security  measures  ....  The  Administration  also  argued  that  the 
detainees,  if  granted  POW  status,  would  have  to  be  repatriated  when  hostilities  in 
Afghanistan  cease,  freeing  them  to  commit  more  terrorist  acts.26 

Initially  the  US  position  on  the  status  of  both  the  Taliban  and  al  Qaeda  was 
seemingly  based  on  such  faulty  reasoning.  Clearly  al  Qaeda,  a  violent,  transna- 
tional, non-State  terrorist  group,  is  in  violation  of  all  law,  including  the  LOAC.27 
Acts  of  terrorism  like  those  commonly  perpetrated  by  al  Qaeda  are  prohibited  by 
Geneva  law,  including  the  1977  Protocols.28  Initial  individual  status  determina- 
tions were  needlessly  complicated  by  the  inexplicable  US  view  that  the  fight  against 
the  Taliban  was  an  armed  conflict,  yet  was  neither  a  Common  Article  2  nor  Com- 
mon Article  3  conflict.29  Despite  warnings  from  the  US  Secretary  of  State30  and  the 
Department  of  State's  Legal  Adviser,31  the  Bush  administration  held  that  neither 
the  Taliban  nor  al  Qaeda  was  protected  by  the  Geneva  Conventions,32  including 
Common  Article  3  protection.33  The  view  that  captured  Taliban  and  al  Qaeda 
fighters  were  outside  the  protections  of  Common  Article  334  was  rejected  by  the  Su- 
preme Court  in  its  2006  Hamdan  decision,35  and  the  administration  subsequently 
softened  its  position.  Lieutenant  General  Ricardo  Sanchez,  former  US  commander 
of  ground  combat  troops  in  Iraq,  wrote  of  the  presidential  memorandum  denying 
the  Taliban  the  protections  of  the  Geneva  Conventions: 


224 


Gary  D.  Solis 

This  presidential  memorandum  constituted  a  watershed  event  in  U.S.  military  history. 
Essentially,  it  set  aside  all  of  the  legal  constraints,  training  guidelines,  and  rules  for 
interrogation  that  formed  the  U.S.  Army's  foundation  for  the  treatment  of  prisoners 

on  the  battlefield According  to  the  President,  it  was  now  okay  to  go  beyond  those 

standards  with  regard  to  al-Qaeda  terrorists.  And  that  guidance  set  America  on  a  path 
toward  torture.36 

If  not  covered  by  the  Geneva  Conventions,  even  Common  Article  3,  what,  in  the 
pre-Hamdan  US  view,  was  the  status  of  captured  Taliban  and  al  Qaeda  fighters, 
and  what  treatment  were  they  to  be  accorded?  The  murky  answer  was  provided  by 
Secretary  of  Defense  Donald  Rumsfeld:  "The  Combatant  Commanders  shall,  in 
detaining  Al  Qaeda  and  Taliban  individuals  under  the  control  of  the  Department 
of  Defense,  treat  them  humanely  and,  to  the  extent  appropriate  and  consistent  with 
military  necessity,  in  a  manner  consistent  with  the  principles  of  the  Geneva  Con- 
ventions of  1949. "37  No  individual  status  was  specified.  A  former  Assistant  US  At- 
torney General  wrote,  "This  formulation  sounded  good.  But  it  was  very  vague,  it 
was  not  effectively  operationalized  into  concrete  standards  of  conduct,  and  it  left 
all  of  the  hard  issues  about  'humane'  and  'appropriate'  treatment  to  the  discretion 
of  unknown  officials."38  Nor  was  it  consistent  with  the  law  of  armed  conflict. 

Captured  Taliban  were  dubbed  "enemy  combatants."  That  phrase  first  ap- 
peared in  the  US  Supreme  Court  opinion  in  the  World  War  II  Nazi  saboteur  case, 
Ex  parte  Quirin.  Chief  Justice  Stone  wrote  for  the  majority: 

[A  spy  or]  an  enemy  combatant  who  without  uniform  comes  secretly  through  the  lines 
for  the  purpose  of  waging  war  by  destruction  of  life  or  property,  are  familiar  examples 
of  belligerents  who  are  generally  deemed  not  to  be  entitled  to  the  status  of  prisoners  of 
war,  but  to  be  offenders  against  the  law  of  war  subject  to  trial  and  punishment  by 
military  tribunals.39 

Sixty- five  years  later,  critics  of  Quirin  note  of  the  Court's  phrase,  "enemy  combat- 
ant," that  "the  term's  meaning  is  blurred  by  its  failure  to  appear  in  the  positive  case 
law  existing  at  the  time  of  the  case  as  well  as  in  the  current  treaty-based  law  of 
war."40  Another  critic  dismissively  asserts  that "  [t]he  concept  of  the  'unlawful  com- 
batant' was  invented  to  explain  the  legal  fate  of  the  eight  German  saboteurs  tried  in 

Quirin The  concept . . .  explained  why  the  saboteurs  were  entitled  neither  to  a 

jury  trial  under  the  Constitution  nor  to  POW  status  under  the  Hague  Conven- 
tion."41 Although  Quirin  continues  to  be  cited  when  supportive  of  a  writers'  posi- 
tion, the  opinion  is  muddled,  and  a  poor  example  of  LOAC  insight  that  lacks  legal 
clarity. 


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Law  of  War  Issues  in  Ground  Hostilities  in  Afghanistan 

Canadian  Brigadier  General  Kenneth  Watkin  writes,  "[C]onfusion  has  also 
been  created  by  the  United  States'  use  of  an  even  more  generic  term:  'enemy  com- 
batants.'"42 Colonel  Charles  Garraway  agrees: 

The  term  "enemy  combatant"  . . .  merely  adds  to  the  confusion.  Traditionally,  the  term 
"enemy  combatant"  refers  to  legitimate  combatants  who  are  entitled  to  prisoner  of  war 
status.  It  is  a  new  usage  to  describe  those  who  are  deemed  to  be  unlawful  belligerents  as 
such.  What  term  is  left  for  those  legitimate  combatants  belonging  to  enemy  armed 
forces?43 

Today,  "enemy  combatant,"  like  the  term  "combatant"  itself,  has  come  to  rep- 
resent a  status  rather  than  an  activity.  A  definition  of  "enemy  combatant"  binding 
US  Armed  Forces  is  found  in  a  Department  of  Defense  (DoD)  directive:  "Enemy 
combatant.  In  general,  a  person  engaged  in  hostilities  against  the  United  States  or 
its  coalition  partners  during  an  armed  conflict.  The  term  'enemy  combatant'  in- 
cludes both  'lawful  enemy  combatants'  and  'unlawful  enemy  combatants.'"44  No 
mention  is  made  of  the  treatment  due  a  captured  enemy  combatant  and  the  defini- 
tion appears  tailored  for  the  "war  on  terrorism,"  rather  than  for  general  LOAC  use. 
Its  melding  of  lawful  and  unlawful  combatants,  long-established  separate  LOAC 
statuses,  is  also  notable  since,  upon  capture  in  a  Common  Article  2  conflict,  the  two 
are  entitled  to  significantly  differing  protections.  Whether  this  definition  survives 
to  become  State  practice,  or  the  subject  of  treaties,  remains  to  be  seen. 

A  competing  US  directive,  Joint  Publication  3-63,  adopts  the  just-mentioned 
DoD  directive's  definition  but,  significantly,  omits  its  last  sentence:  "Enemy  com- 
batant. In  general,  a  person  engaged  in  hostilities  against  the  United  States  or  its  co- 
alition partners  during  an  armed  conflict."45  Again,  the  Joint  Publication's 
definition  does  not  mention  the  captive's  individual  status  (unless  "enemy  com- 
batant" is  considered  a  discrete  status),  or  presumptive  POW  status  or  protected 
person  status,  one  or  the  other  of  which  must  be  applicable  in  a  Common  Article  2 
conflict.  In  Afghanistan,  the  United  States  has  been  at  pains  to  avoid  referring  to 
captured  opposing  fighters  as  POWs.  The  unsatisfactory  term  "enemy  combatant" 
is  instead  used. 

Taxonomic  issues  aside,  Operation  Enduring  Freedom  continued,  its  partici- 
pants oblivious  to  status  issues.  On  November  16,  2001,  the  battle  of  Tora  Bora  be- 
gan. In  support  of  Afghan  warlord  Hazrat  Ali,  dozens  of  US  SF  operators  guided 
airstrikes  on  al  Qaeda  mountain  strongholds.  Although  the  constant  strikes  and 
pressure  from  ground  forces  reduced  the  enemy  presence,  fighting  came  to  a  halt 
in  mid-December.  Most  of  the  enemy  had  either  fought  to  the  death  or  had  found 
refuge  across  the  Pakistan  border.46 


226 


Gary  D.  Solis 

Also  in  November,  at  Tarin  Kot,  US  aircraft  guided  by  SF  ground  controllers 
decimated  Taliban  fighters,  killing  an  estimated  one  thousand.  On  November  25, 
the  first  US  conventional  forces  entered  Afghanistan  when  five  hundred  Marines 
of  the  15th  Marine  Expeditionary  Unit  (MEU)  debarked  from  USS  Peleliu  and 
landed  at  Kandahar.  They  had  moved  by  helicopter  from  their  shipboard  base  four 
hundred  miles  inland  to  Kandahar,  so  distant  an  inland  objective  not  being  the 
usual  Marine  ship-to-shore  movement.  The  15th  MEU  departed  a  few  weeks  later, 
replaced  by  the  26th  MEU,47  who  themselves  departed  within  two  months.  On  the 
ground,  Afghanistan  was  still  essentially  an  SF/Northern  Alliance  show. 

Also,  on  November  25, 2001,  during  a  riot  at  a  prison  located  at  Mazar-e  Sharif, 
CIA  Special  Activities  Division  officer  Johnny  M.  Spann  was  the  first  American 
killed  by  Taliban  enemy  action.48 

Unmanned  Aerial  Vehicles  and  Targeted  Killing 

Operation  Enduring  Freedom  is  notable  for  the  use  of  unmanned  aerial  vehicles 
(UAVs).  Their  role  in  ground  combat  has  been  significant  because  at  least  one 
UAV,  the  MQ-1  Predator,  can  carry  and  fire  two  laser-guided  air-to-ground  Hell- 
fire  missiles,  changing  the  fundamental  nature  of  ground  combat  when  it  is 
employed. 

Predator  UAVs  first  deployed  to  the  Balkans  in  1995.  Since  then,  the  Predator's 
offensive  capabilities  have  increased.  Today,  it  carries  a  daytime  television  nose 
camera,  a  forward-looking  infrared  camera  for  low-light  and  night  operations,  and 
a  laser  designator.  Cruising  at  eighty-five  miles  per  hour  at  25,000  feet,  a  Predator 
can  loiter  for  in  excess  of  forty  hours.49  The  first  armed  Predator  mission  in  Af- 
ghanistan was  flown  on  October  7,  2001. 

Employing  the  Predator,  the  US  admitted  engaging  in  targeted  killing  for  the  first 
time.50  On  November  3,  2002,  over  the  desert  near  Sana,  Yemen,  a  CIA- controlled 
Predator  tracked  an  SUV  containing  six  men.  One  of  the  six,  Qaed  Salim  Sinan 
al-Harethi,  was  believed  to  be  a  senior  al  Qaeda  lieutenant  who  had  played  a  major 
role  in  the  2000  bombing  of  the  American  destroyer  USS  Cole.  He  "was  on  a  list  of 
'high-value'  targets  whose  elimination,  by  capture  or  death,  had  been  called  for  by 
President  Bush."51  The  United  States  and  Yemen  had  tracked  al-Harethi's  move- 
ments for  months.  Now,  away  from  any  inhabited  area,  the  Predator  fired  a  Hell- 
fire  missile  at  the  vehicle.  Its  six  occupants,  including  al-Harethi,  were  killed.52 
There  is  no  consensus  definition  of  "targeted  killing"  in  the  LOAC  or  in  case  law.53 
However,  a  reasonable  definition  is  offered  by  International  Committee  of  the  Red 
Cross  (ICRC)  legal  advisor  Nils  Melzer:  "The  use  of  lethal  force  attributable  to  a 
subject  of  international  law  with  the  intent,  premeditation  and  deliberation  to 

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Law  of  War  Issues  in  Ground  Hostilities  in  Afghanistan 

kill  individually  selected  persons  who  are  not  in  the  physical  custody  of  those  tar- 
geting them."54 

Additional  Protocol  I,  Article  51.3,  usually  considered  to  be  customary  law,  ap- 
pears to  prohibit  targeted  killing:  "Civilians  shall  enjoy  the  protection  afforded  by 
this  Section,  unless  and  for  such  time  as  they  take  a  direct  part  in  hostilities."  Those 
interested  in  international  law  or  the  LOAC  know  that  for  several  years  the  phrase 
"unless  and  for  such  time  as  they  take  a  direct  part  in  hostilities"  has  been  the  sub- 
ject of  debate  and  the  focus  of  meetings  of  international  experts  sponsored  by  the 
ICRC  and  the  Asser  Institute.55  The  plain  meaning  of  the  phrase  indicates  that  ter- 
rorists and  terrorist  accomplices,  such  as  weapon  makers  and  communications  ex- 
perts, cannot  lawfully  be  targeted  unless,  at  the  time  of  targeting,  they  are  actually 
directly  engaged  in  hostilities.  Those  who  argue  against  such  a  constricting  limita- 
tion urge  that  such  terrorists  should  be  lawful  targets  whenever  and  wherever  their 
locations  can  be  confirmed. 

But  events  on  the  ground  in  Afghanistan  and  Iraq  are  making  the  debate  moot. 
As  Melzer  notes: 

Today,  targeted  killing  is  in  the  process  of  escaping  the  shadowy  realm  of  half-legality 
and  non-accountability,  and  [is]  gradually  gaining  legitimacy  as  a  method  of  counter- 
terrorism  and  "surgical"  warfare.  Several  Governments  have  expressly  or  implicitly 
acknowledged  that  they  have  resorted  to  targeted  killings  in  their  respective  efforts  to 
curb  insurgent  or  terrorist  activities.56 

Those  governments  include  the  United  States,  Israel,  Russia,  Pakistan,  the  United 
Kingdom,  Germany  and  Switzerland. 

For  better  or  worse,  in  the  United  States  the  9-11  attacks  caused  shifts  in  public 
opinion,  and  often  shifts  in  public  policy,  relating  to  terrorism  and  terrorists.  For 
example,  torture,  previously  rejected  out  of  hand,  shockingly  became  acceptable.  A 
2005  survey  indicated  that  sixty-one  percent  of  the  American  public  would  not  rule 
out  torture,57  and  President  George  W.  Bush  said  in  a  nationally  televised  address 
that  "the  CIA  used  an  alternative  set  of  procedures"58  when  interrogating  certain 
captured  terrorist  suspects. 

Another  post-9-11  change  in  policy  and  attitude  related  to  targeted  killing. 
Once  anathema  to  America  (in  public  at  least),59  after  9-11  targeted  killing  became 
tolerated,60  then  embraced.  Under  a  series  of  classified  presidential  findings,  Presi- 
dent Bush  reportedly  broadened  the  number  of  named  terrorists  who  maybe  killed 
if  their  capture  is  impractical.61  In  early  2006,  it  was  reported  that  since  9-11  the  US 
had  successfully  carried  out  at  least  nineteen  targeted  killings  via  Predator-fired 


228 


Gary  D.  Solis 

Hellfire  missiles.  In  June  2006,  the  targeted  killing  of  Abu  Musab  al-Zarqawi, 
leader  of  al  Qaeda  in  Iraq,  was  celebrated  as  a  US  strategic  and  political  victory. 

In  October  2001,  a  US  Predator  killed  the  military  chief  of  al  Qaeda  in  Afghani- 
stan. In  June  2004,  a  senior  Taliban  planner,  Nek  Mohammad,  was  killed  by  a  UAV- 
launched  missile.  In  May  2005,  on  the  Afghanistan-Pakistan  border,  a  CIA-controlled 
UAV  killed  Haitham  al- Yemeni,  a  suspected  senior  figure  in  Afghan  al  Qaeda  opera- 
tions.62 In  August  2008,  an  Afghan  warlord's  camp  in  the  mountains  of  Pakistan 
was  destroyed  and  nine  insurgents  reportedly  killed  by  four  missiles.63  The  roster 
continues  to  lengthen.  Though  it  occasionally  admits  to  targeted  killing,  the  US 
government  remains  reticent  and  evasive  in  acknowledging  employment  of  the 
tactic,  but  its  value  to  ground  combat  operations  is  apparent.64 

Even  considering  their  inevitable  collateral  damage,  the  effectiveness  of  UAVs 
mated  with  Hellfire  missiles,  combined  with  their  relatively  low  cost  and  zero 
exposure  of  friendly  personnel,  assures  their  continued  use.  Although  targeting 
errors,  actual  or  contrived,  are  media  staples,65  the  international  trend  toward 
their  legitimization,  whether  or  not  seen  to  be  in  compliance  with  Article  51.3,  is 
all  but  assured. 

Meanwhile,  in  April  2002,  coalition  members  met  in  Geneva  and  agreed  on  five 
"pillars"  of  change  in  Afghanistan.  The  United  States  assumed  responsibility  for 
building  the  Afghan  army;  Germany  agreed  to  build  the  Afghan  police;  Italy  took 
on  the  judicial  system;  the  United  Kingdom  was  to  take  the  lead  on  curbing  illegal 
drug  use;  and  Japan  accepted  responsibility  for  disarmament,  demilitarization  and 
reintegration  of  the  Afghan  warlords  and  militias.66  Six  years  on,  one  can  only 
smile  ruefully  at  such  ambitious  plans. 

By  late  2002  an  Afghanistan  conflict  timeline  was  discernable.  The  US  invasion 
was  in  October  2001.  Coalition  forces  removed  the  Taliban  from  power  in  Decem- 
ber.67 According  to  the  2001  Afghan  Bonn  Agreement,  Afghan  sovereignty  re-arose 
in  December  2001  with  the  establishment  of  the  Interim  Authority.68  Accepting 
those  dates,  the  international  armed  conflict  phase  of  the  "war"  lasted  sixty-two 
days  and  the  US  occupation  a  mere  fifteen  days.  In  June  2002  the  Afghans  created  a 
transitional  government  referred  to  as  a  Loya  Jirga,  or  grand  assembly. 

In  terms  of  ground  combat,  one  observer  noted  that "  [d]  uty  in  Afghanistan  isn't 
turning  out  to  be  the  low-key  operation  many  expected."69  An  infantry  officer  re- 
ported, "Afghanistan  is  home  to  some  of  the  most  extreme  terrain  and  environ- 
mental conditions  in  the  world.  During  our  time  there  we  operated  in  mostly 
mountainous  terrain  in  excess  of  8,000  feet  [above]  mean  sea  level,  with  tempera- 
tures ranging  during  the  day  from  80  to  100  degrees."70 

Through  2003  Afghanistan's  stresses  on  troop  availability  were  reflected  in  tour 
lengths:  Army  tours  of  duty  were  from  nine  to  twelve  months;  Marine  Corps  units 

229 


Law  of  War  Issues  in  Ground  Hostilities  in  Afghanistan 

rotated  into  and  out  of  country  every  seven  months;  Air  Force  personnel  rotated 
every  three  or  four  months.  Five  years  later,  manning  levels  and  tour  lengths  con- 
tinue to  bedevil  Pentagon  planners. 

Transfer  of  Protected  Persons  from  Afghanistan  to  Guantanamo  Bay 

During  the  Newport  workshop,  several  of  us  wondered  why  more  has  not  been 
made  of  the  movement  of  prisoners  from  Afghanistan  and  Iraq  to  Guantanamo 
Bay,  Cuba.  The  history  of  deportations  in  armed  conflicts  is  familiar.  During 
World  War  I  Germany  deported  thousands  of  French  and  Belgian  citizens  to  Ger- 
many as  forced  laborers.  The  German  action  was  called  "an  act  of  tyranny,  contrary 
to  all  notions  of  humanity."71  Georg  Schwarzenberger  wrote:  "In  World  War  II, 
Nazi  Germany  resorted  to  deportation  as  part  of  its  policies  of  terrorisation  and  ex- 
termination and,  even  more  so,  for  the  purpose  of  implementing  its  slave-labour 
programme."72  In  response,  the  Charter  of  the  International  Military  Tribunal  at 
Nuremberg  specified  that  the  deportation  of  civilians  from  occupied  territories — 
for  any  purpose — was  a  crime  against  humanity  and  a  breach  of  the  laws  and  cus- 
toms of  war.73  In  the  post-war  "Subsequent  Proceedings,"  tried  under  authority  of 
Control  Council  Law  No.  10,  unlawful  deportation  was  among  the  charges  in  sev- 
eral of  the  twelve  military  tribunals.  National  tribunals  prosecuted  individuals  for 
deportation  as  well.74 

Article  49  of  Geneva  Convention  IV  addresses  the  removal  of  protected  persons: 
"Individual . . .  transfers,  as  well  as  deportation  of  protected  persons  from  occupied 
territory  to  the  territory  of  the  Occupying  Power  or  to  that  of  any  other  country, 
occupied  or  not,  are  prohibited,  regardless  of  their  motive  . . .  ."75 

The  Commentary  to  Convention  IV  explains,  "There  is  doubtless  no  need  to  give 
an  account  here  of  the  painful  recollections  called  forth  by  the  'deportations'  of  the 
Second  World  War The  prohibition  ...  is  intended  to  forbid  such  hateful  prac- 
tices for  all  time. . . .  The  prohibition  is  absolute  and  allows  of  no  exceptions "76 

How  then  to  explain  the  history  of  forced  movement  of  individuals  from  Afghani- 
stan and  Iraq  to  Guantanamo  in  the  "war  against  terrorism"? 

In  non-international  conflicts,  Additional  Protocol  II  mandates  that 
"[civilians  shall  not  be  compelled  to  leave  their  own  territory  for  reasons  con- 
nected with  the  conflict."77  The  Statute  of  the  International  Criminal  Court78  ren- 
ders deportations  in  non-international  conflicts  a  war  crime  as  well,  while  the 
statutes  of  the  International  Criminal  Tribunal  for  the  former  Yugoslavia  (ICTY) 
and  International  Criminal  Tribunal  for  Rwanda  denominate  deportations  as 
crimes  against  humanity.79 


230 


Gary  D.  Solis 

The  ICRC's  study,  Customary  International  Humanitarian  Law,  states,  "Numer- 
ous military  manuals  specify  the  prohibition  of  unlawful  deportation  or  transfer  of 
civilians  in  occupied  territory."80  The  study  goes  on  to  specify  the  legislation  of 
thirty-nine  States,  several  applicable  in  non-international  conflicts,  making  depor- 
tation of  civilians  a  domestic  offense.  The  ICRC  study  finds  State  practice  to  estab- 
lish the  rule  against  deportation,  in  both  international  and  non-international 
armed  conflicts,  as  customary  international  law.81  Finally,  Geneva  Convention  IV 
mandates  that  "[protected  persons  accused  of  offenses  shall  be  detained  in  the  oc- 
cupied country,  and  if  convicted  they  shall  serve  their  sentences  there."82 

These  prohibitory  sources  against  deportation  indicate  the  incontrovertible  na- 
ture of  the  prohibition.  Throughout  the  armed  conflict  in  Afghanistan  and  the  US 
occupation,  Article  49  applied,  prohibiting  the  deportation  of  protected  persons 
from  the  occupied  State  to  Guantanamo. 

Who  is  a  "protected  person"  whose  deportation  is  prohibited?  Geneva 
Convention  IV,  Article  4,  tells  us  that,  essentially,  a  protected  person  is  someone  in 
an  international  armed  conflict,  other  than  a  POW,  who  is  in  the  hands  of  the  other 
side.  There  are  limitations  on  the  application  of  protected  person  status,  of  course — 
notably  the  "nationality  requirement"  and  cobelligerents.  The  cobelligerent's  re- 
quirement of  diplomatic  representation  is  significant,83  because  at  the  time  of  the 
armed  conflict  with  the  United  States,  the  Taliban  government  did  not  have  such 
relations  with  the  United  States.  The  nationality  and  cobelligerent  limitations  on 
protected  person  status  did  not  apply  to  nationals  of  Afghanistan  vis-a-vis  the 
United  States. 

Can  extraordinary  measures,  such  as  deportation,  be  taken  in  the  case  of  unlaw- 
ful combatants,  as  many  Afghan  insurgents  were?  The  "unprivileged  belligerent" 
has  been  characterized  by  the  ICRC  "as  describing  all  persons  taking  a  direct  part  in 
hostilities  without  being  entitled  to  do  so  and  who  therefore  cannot  be  classified  as 
prisoners  of  war  on  falling  into  the  power  of  the  enemy."84 

Dinstein  argues  that 

[a]  person  who  engages  in  military  raids  by  night,  while  purporting  to  be  an  innocent 
civilian  by  day,  is  neither  a  civilian  nor  a  lawful  combatant.  He  is  an  unlawful 
combatant.  He  is  a  combatant  in  the  sense  that  he  can  be  lawfully  targeted  by  the 
enemy,  but  he  cannot  claim  the  privileges  appertaining  to  lawful  combatancy.  Nor 
does  he  enjoy  the  benefits  of  civilian  status 85 

Captured  unlawful  combatants  are  entitled  to  the  basic  humanitarian 
protections  of  Common  Article  3  and  of  Article  75  of  Additional  Protocol  I.86 
While  being  an  unprivileged  belligerent  is  not  a  war  crime,  the  unlawful  combatant 


231 


Law  of  War  Issues  in  Ground  Hostilities  in  Afghanistan 

forfeits  the  combatant's  privilege  and  potential  POW  status,  and  may  be  charged 
for  law  of  war  violations  that  made  him  an  unlawful  combatant. 
What  is  "deportation"  in  the  LOAC?  William  Schabas  states  that 

[djeportation . . .  involves  the  movement  of  individuals,  under  duress,  from  where  they 
reside  to  a  place  that  is  not  of  their  choosing.  Deportation  would  involve  such  transfer 
when  an  international  border  is  crossed.  It  must  be  proven  that  the  accused 
intentionally  perpetrated  an  act  or  omission  to  effect  such  deportation  . . .  that  was  not 
motivated  by  the  security  of  the  population  or  imperative  military  reasons.87 

ICTY  jurisprudence  defines  deportation  simply  as  forcible  transfer  beyond  one's 
home  State  borders,88  and  finds  it  an  inhumane  act.89 

In  the  pertinent  timeframe,  the  seventy-seven-day-long  US-Afghanistan  con- 
flict, whose  deportation  to  Guantanamo  Bay  was  prohibited?  Answer:  captured 
unlawful  combatants  who  were  nationals  of  a  State  other  than  Afghanistan  and,  be- 
cause Afghanistan  lacked  normal  diplomatic  relations  with  the  United  States, 
Afghan  nationals  held  by  the  United  States  in  occupied  Afghanistan  who  were  al- 
legedly unlawful  combatants.  Individuals  in  both  categories  were  protected 
persons. 

The  only  discovered  US  government  document  addressing  deportations  to 
Guantanamo  is  a  March  2004  draft  opinion  written  by  the  Justice  Department's 
Office  of  Legal  Counsel.  The  fourteen-page  memorandum  to  Alberto  Gonzales, 
then-Counsel  to  the  President,  is  entitled  "Permissibility  of  Relocating  Certain 
'Protected  Persons'  from  Occupied  Iraq."90  Relying  on  a  definition  of  deportation 
taken  from  Roman  times,  the  draft  memorandum  argues  that  Geneva  Convention 
IV  does  not  prohibit  the  deportation  of  protected  persons  who  are  illegal  aliens — 
presumably  meaning  foreign  fighters — captured  in  Iraq.  Creating  the  LOAC  from 
whole  cloth,  the  memorandum  argues  that  protected  persons,  even  if  nationals  of 
the  State  in  which  captured,  may  be  deported  as  long  as  they  have  not  been  for- 
mally accused  of  wrongdoing,  apparently  an  effort  to  circumvent  the  requirement 
of  Article  76  of  the  Fourth  Convention  that  protected  persons  accused  of  offenses 
be  detained  in  the  occupied  State. 

The  draft  memorandum's  conclusion  is  that  the  United  States  may  remove — 
deport — protected  persons  when  the  intent  is  not  to  accuse  them  of  wrongdoing 
but  only  to  interrogate  them.  From  the  memorandum:  "[A]rticle  49(l)'s  prohibi- 
tion of  forcible  transfers  and  deportations  out  o/occupied  territory . . .  should  not 
be  construed  to  extend  to  temporary  transnational  relocations  of  brief  but  not  in- 
definite duration"  (emphasis  in  original).  This  would  allow  authorities  to  simply 


232 


Gary  D.  Solis 

designate  a  protected  person  as  destined  for  interrogation  and  deport  him  without 
further  accountability. 

The  draft  memorandum  was  never  finalized,91  although  its  conclusions  were 
confirmed  by  Mr.  Gonzales  when  he  was  nominated  to  be  Attorney  General  of  the 
United  States.92  "A  related  issue  that  has  inexplicably  escaped  broader  attention  is 
the  fate  of  persons  apprehended  in  the  'war  on  terrorism'  who  were  or  are  being 
held  at  undisclosed  locations."93  The  draft  memorandum  was  the  basis  for  the  se- 
cret removal  by  the  CIA  of  at  least  a  dozen  detainees  from  Iraq.94 

How  many  Afghan  and  Iraqi  prisoners  held  by  the  United  States  were  deported 
to  Guantanamo  in  contravention  of  Article  49?  It  is  unlikely  there  will  ever  be  a  sat- 
isfactory answer. 

Increased  War  Crimes  Prosecutions — Perception  or  Fact? 

Large-scale  ground  operations  in  Afghanistan,  e.g.,  the  US  Army's  Operations  An- 
aconda (March  1-16,  2002),  Valiant  Strike  (March  20-25,  2003)  and  Mountain  Vi- 
per (September  4-5, 2003),  do  not  usually  give  rise  to  charges  of  LOAC  violations. 
Day-to-day  operations  in  urban  Afghan  settings,  however,  have  seen  many  such  al- 
legations. War  crime  charges  are  even  more  frequent  in  Iraq,  where  urban  opera- 
tions are  more  common. 

Anytime  a  government  puts  high-power  weapons  in  the  hands  of  very  young 
men  and  women,  bad  things  will  inevitably  happen.95  In  fighting  terrorists  who  ig- 
nore customary  battlefield  norms,  incite  retaliation  and  hide  within  the  noncom- 
batant  population,  the  spur  for  opposing  forces  to  commit  offenses  is  only 
heightened.  The  "CNN  factor"  often  ensures  that  offenses  are  broadcast  worldwide 
in  near-real  time.  The  armed  forces  are  in  a  difficult  position:  fail  to  formally  inves- 
tigate even  flimsy  allegations  of  wrongdoing  and  be  pilloried  for  covering  up  war 
crimes,  or  prefer  court-martial  charges  with  slim  evidence  and  be  pilloried  as 
overly  aggressive  martinets. 

But  one  may  ask,  as  some  workshop  attendees  did  around  Naval  War  College 
luncheon  tables,  have  LOAC  violations  actually  increased  in  Afghanistan,  or  have 
their  reporting  and  prosecution  increased?  Are  US  armed  forces  members  less  con- 
trolled today  or  has  a  heightened  awareness  of  the  law  of  armed  conflict  resulted  in 
greater  command  awareness  and  increased  prosecutions?  Either  way,  anecdotal  ev- 
idence suggests  that  there  have  been  proportionally  more  courts-martial  for 
LOAC-related  offenses  than  in  previous  armed  conflicts. 

One  cannot  obtain  accurate  numbers  of  courts-martial  for  such  violations.  Each 
of  the  military  Services  annually  reports  total  numbers  of  convictions  (as  opposed 
to  charges)  to  the  Court  of  Appeals  for  the  Armed  Forces,  but  the  convictions  are 

233 


Law  of  War  Issues  in  Ground  Hostilities  in  Afghanistan 

not  broken  down  by  offense.  Even  if  they  were,  the  murder  of  a  PO W,  for  example, 
would  simply  be  reported  as  a  murder,  with  no  victim,  no  grave  breach  and  no 
LOAC  violation  indicated.  There  is  no  requirement  in  federal  law  or  military  regu- 
lation to  do  otherwise.96  Nor  are  media  reports  reliable  indicators  of  indiscipline  or 
criminality. 

In  December  2004  the  Department  of  Defense  reported  that  130  US  combatants 
had  been  punished  or  charged  with  prisoner  abuse  in  Afghanistan,  Iraq  or 
Guantanamo.97  Numbers  in  other  reports  for  specific  geographic  areas  vary.98  In 
any  event,  there  is  no  base  point  to  which  any  number  may  be  compared.  Is  130  an 
unusually  high  number  or  normal  or  unusually  low?  Figures  recorded  in  the  cur- 
rent conflict  cannot  be  compared  to  similar  offenses  in  prior  conflicts  because, 
even  if  numbers  had  been  kept — and  they  were  not — every  conflict  is  unique,  with 
fundamentally  different  conflict  characteristics  that  would  make  comparisons 
meaningless. 

In  both  Afghanistan  and  Iraq  there  have  clearly  been  a  disturbingly  high  num- 
ber of  deaths  of  detainees  at  the  hands  of  US  warders.  The  New  York  Times  re- 
ported: "At  least  26  prisoners  have  died  in  American  custody  in  Iraq  and 
Afghanistan  since  2002  in  what  Army  and  Navy  investigators  have  concluded  or 
suspect  were  acts  of  criminal  homicide,  according  to  military  officials."99  A  few 
months  later  the  Los  Angeles  Times  reported  that  "[a]utopsy  reports  on  44  prison- 
ers who  died  in  US  custody  in  Iraq  and  Afghanistan  indicate  that  2 1  were  victims  of 
homicide,  including  eight  who  appear  to  have  been  fatally  abused  by  their  cap- 
tors."100 And  a  few  months  after  that  the  Philadelphia  Inquirer  reported:  "Ninety- 
eight  detainees  in  Iraq  and  Afghanistan  have  died  in  US  custody  since  August  2002, 
and  34  of  them  were  suspected  or  confirmed  homicides,  a  human-rights  group  re- 
ported yesterday.  Only  12  cases  have  resulted  in  punishment  of  any  kind  .  .  .  ."101 
Which  media  figures,  all  said  to  be  based  on  armed  forces  figures,  can  be  relied 
upon — if  any? 

There  are  media  reports  of  combatant  misconduct  occurring  in  Afghanistan, 
most  involving  detainee  mistreatment102  but  not  all.  A  closely  watched  case  arose 
in  March  2007  in  Jalalabad,  when  it  was  reported  that  ten  to  nineteen  Afghan  non- 
combatants  were  killed  (the  actual  number  has  never  been  settled)  and  thirty-three 
more  wounded  by  uncontrolled  US  fire  when  a  Marine  Corps  convoy  was  hit  by  a 
car  bomb  that  slightly  wounded  one  Marine.  As  the  convoy  sped  from  the  scene  it 
allegedly  continued  to  fire  on  Afghan  civilians  over  the  course  of  a  six-mile  "escape." 
The  area's  Army  commander  immediately  ordered  the  Marine  unit  out  of  the  coun- 
try, initiated  an  investigation,  paid  $2,000  in  compensation  for  each  reported  death 
and  apologized  to  the  victims  and  their  families  on  behalf  of  the  United  States.  The 
Marine  commander  of  the  convoy  unit  was  relieved  by  his  Marine  Corps  seniors.  At 

234 


Gary  D.  Solis 

the  same  time  the  Commandant  of  the  Marine  Corps,  General  James  Conway,  pub- 
licly expressed  his  anger  at  the  Army  commander's  expressions  of  regret  and  accep- 
tance of  responsibility,  which  General  Conway  considered  premature.  The 
involved  Marines  disputed  the  initial  account,  insisting  they  had  only  returned  fire 
after  the  initial  car  bombing  and  subsequent  lengthy  escape.103 

In  May  2008,  a  court  of  inquiry  cleared  all  Marines  involved  of  criminal  charges. 
In  a  fourteen-month  arc  the  incident  moved  from  newspaper  front  pages  to  back 
pages  to  silence,  leaving  hard  feelings  between  the  Marines  and  the  Army,  and  Af- 
ghans distrustful  and  embittered  against  the  United  States.  If  not  typical,  it  was  a 
not  uncommon  progression,  initially  raising  the  specter  of  Haditha-like  horrific 
unlawful  conduct,  fading  to  anticlimax  and  no  charges. 

There  have  indeed  been  numerous  courts-martial  involving  war  crime  charges 
and  there  have  been  instances  in  which  prosecution  was  found  unwarranted.  There 
have  been  convictions  in  which  sentences  were  not  commensurate  with  the  of- 
fenses of  which  the  accused  was  convicted.104  All  that  can  be  said  with  assurance  is 
that,  after  seven  years  in  Afghanistan,  there  is  no  documented  answer  to  the  ques- 
tion of  whether  there  are  more  LOAC  violations  than  in  prior  conflicts;  only  argu- 
ments. Several  attendees  suggested  the  Department  of  Defense  should  require  that 
all  formal  allegations  of  violent  offenses  involving  indigenous  individuals  and 
armed  service  personnel,  including  prisoners  of  any  description,  whether  or  not  re- 
sulting in  trial,  be  periodically  reported  by  the  armed  Service  involved  to  a  com- 
mon DoD  authority. 

Meanwhile,  in  mid-2006  the  US  Marine  Corps  departed  Afghanistan,  leaving 
ground  fighting  to  the  Army  and  NATO  combatants,  and  fledgling  Afghan  Na- 
tional Army  troops.  The  Marine  units  would  move  on  to  Iraq.  One  observer  noted: 
"The  end  of  the  Corps'  Afghan  deployments  comes  as  the  overall  U.S.  commitment 
to  that  country  is  on  the  decline.  Military  officials  have  said  that  American  forces 
will  be  reduced  from  the  roughly  23,000  troops  there  now  to  16,000  by  the  end  of 
the  summer  [of  2006]  ."105  Planning  was  underway  for  the  so-called  "surge"  in  Iraq, 
which  began  in  February  2007.  Even  at  some  tactical  cost,  US  troop  drawdowns  in 
Afghanistan  were  required  to  meet  the  manpower  needs  of  the  coming  "surge."  By 
2007,  Afghanistan  was  being  referred  to  as  the  "forgotten  war."106  But,  once  the 
surge  was  over,  the  Marines  were  back,107  to  the  consternation  of  the  Marine 
Corps'  Commandant.108  But,  almost  immediately,  new  plans  were  announced  in- 
dicating they  would  yet  again  leave  Afghanistan,  this  time  within  a  year.109  Such 
undulating  personnel  requirements,  presenting  planners  with  constantly  moving 
targets,  are  one  more  price  of  fighting  two  wars  at  once. 


235 


Law  of  War  Issues  in  Ground  Hostilities  in  Afghanistan 

Conclusion 

After  more  than  seven  years  of  ground  combat  in  Afghanistan,  at  the  cost  of  more 
than  nine  hundred  lives,  well  over  five  hundred  of  them  American,  and  having 
spent  in  excess  of  $175  billion,110  where  are  we? 

We  have  succeeded  in  deposing  the  Taliban  government  and  installing  an 
elected  parliament.  We  have  disrupted  al  Qaeda  in  Afghanistan.  There  has  been  a 
major  increase  in  availability  of  basic  health  care.  A  central  banking  system  and  a 
stable  currency  are  in  place.  Yet,  mid-2008  reports,  not  all  of  which  are  media- 
based,  present  a  discouraging  picture.  Among  media  reports  were  these:  "Security 
in  the  provinces  ringing  the  capital,  Kabul,  has  deteriorated  rapidly  in  recent 
months.  Today  it  is  as  bad  as  at  any  time  since  the  beginning  of  the  war  .  .  .  ."m 
u[T]he  Taliban  are  demonstrating  a  resilience  and  a  ferocity  that  are  raising  alarm 
here  [in  Kabul],  in  Washington  and  in  other  NATO  capitals."112  "Al  Qaeda  is  more 
capable  of  attacking  inside  the  United  States  than  it  was  last  year  .  .  .  ."113  "There 
were  ten  times  as  many  armed  attacks  on  international  troops  and  civilian  contrac- 
tors in  2007  as  there  were  in  2004.  Every  other  measure  of  violence,  from  roadside 
bombs  to  suicide  bombers,  is  also  up  dramatically."1 14  In  April  2006,  a  National  In- 
telligence Estimate  reported  that  "the  global  jihadist  movement ...  is  spreading 
and  adapting  to  counterterrorism  efforts."115  In  2007,  the  last  year  for  which  totals 
are  available,  enemy  encounters,  roadside  bombs,  suicide  bombers  and  casualty 
figures  all  reached  new  highs.  In  2008,  the  Baltimore  Sun  reported:  "The  chairman 
of  the  House  Armed  Services  Committee,  Democratic  Rep.  Ike  Skelton  of  Mis- 
souri, has  said  the  United  States  'risks  strategic  failure'  in  Afghanistan."116 

Poppy  crop  eradication,  once  a  primary  US  mission  in  Afghanistan,  has  been 
abandoned.  The  media  has  reported  that  "[t]he  Marines  don't  want  to  antagonize 
the  local  population  by  joining  US-backed  efforts  to  destroy  the  crop.  'We're  not 
coming  to  eradicate  poppy,'  [a  Marine  major]  says.  'We're  coming  to  clear  the 
Taliban.'"117 

An  open  Pakistan  border  combines  with  Pakistani  perfidy  and  Afghan  exhaus- 
tion to  undercut  coalition  efforts  against  a  resurgent  Taliban.  The  invasion  of  Iraq 
eclipsed  Afghanistan  as  the  battleground  against  terrorism,  stripping  it  of  military 
resources,  American  funding  and  public  interest.  So  far,  efforts  to  deny  sanctuary 
to  terrorists  in  Afghanistan  have  been  unsuccessful.  One  reporter  alleges:  "In  a  vi- 
cious cycle,  narcotics,  corruption  and  the  absence  of  law  and  order  are  rotting  the 
heart  of  the  government  and  rippling  the  economy.  Despite  massive  Western  in- 
vestment, Afghanistan  is  close  to  being  a  failed  state."118 

An  August  2008  editorial  in  the  New  York  Times  reflected  the  widespread  con- 
cern regarding  the  progress  of  Operation  Enduring  Freedom: 

236 


Gary  D.  Solis 

The  news  out  of  Afghanistan  is  truly  alarming Taliban  and  foreign  Qaeda  fighters 

are  consolidating  control  over  an  expanding  swath  of  territory  sprawling  across  both 
sides  of  the  porous  Afghanistan-Pakistan  border. . .  .Unless  the  United  States,  NATO 

and  its  central  Asian  allies  move  quickly,  they  could  lose  this  war [sjeven  years  have 

already  been  wasted Afghanistan's  war  is  not  a  sideshow.  It  is  the  principal  military 

confrontation  between  America  and  NATO  and  the  forces  responsible  for  9/ 1 1 ]  19 

Seven  years  of  ground  combat  in  Afghanistan  have  not  gained  control  of  Afghani- 
stan's borders,  which  is  critical  to  ultimate  success.  The  Afghan  government  has 
not  yet  established  its  authority  or  credibility.  The  Taliban  are  far  from  defeated. 
The  United  States  is  not  at  the  point  of  taking  Kipling's  advice  to  "Jest  roll  to 
your  rifle  and  blow  out  your  brains  An'  go  to  your  Gawd  like  a  soldier."  But  there  is 
a  large  measure  of  ground  combat  yet  to  come  in  Afghanistan. 

Notes 

1.  Gerry  J.  Gilmore,  Pentagon  Proposes  Change  to  U.S.  Command  Structure  in  Afghani- 
stan (Aug.  8,  2008),  available  at  http://www.defenselink.mil/news/newsarticle.aspx?id=50748. 

2.  Extremist  Movements  and  Their  Threat  to  the  United  States,  Hearing  Before  the  Subcomm. 
on  Near  East  and  South  Asian  Affairs  of  the  S.  Foreign  Relations  Comm.,  106th  Cong.  3  (1999) 
(statement  of  Amb.  Michael  A.  Sheehan,  Coordinator  for  Counterterrorism,  US  Dept.  of  State), 
available  at  http://www.state.gov/www/policy_remarks/1999/991 102_sheehan_terrorism.html. 

3.  Address  by  President  George  W.  Bush,  The  War  Against  Terrorism,  in  DIGEST  OF  UNITED 
STATES  PRACTICE  IN  INTERNATIONAL  LAW  856-58  (Sally  Cummins  &  David  Stewart  eds.,  200 1 ) . 

4.  YORAM  DINSTEIN,  WAR,  AGGRESSION  AND  SELF-DEFENCE  31  (4th  ed.  2005). 

5.  Id. 

6.  S.C.  Res.  1386,  H  3,  U.N.  Doc.  S/RES/1386  (Dec.  20,  2001). 

7.  Richard  W.  Stewart,  The  United  States  Army  in  Afghanistan,  Operation  Enduring  Free- 
dom, October  2001-March  2002,  at  8  (2003),  available  at  http://www.histoiy.army.mil/brochures/ 
Afghanistan/Operation%20Enduring%20Freedom.htm. 

8.  DOUGLAS  J.  FEITH,  WAR  AND  DECISION  104  (2008).  Feith  notes  that  there  may  have 
been  Central  Intelligence  Agency  paramilitary  personnel  on  the  ground  in  Afghanistan  before 
October  19. 

9.  Convention  for  the  Amelioration  of  the  Condition  of  the  Wounded  and  Sick  in  Armed 
Forces  in  the  Field  art.  2,  Aug.  12, 1949, 6  U.S.T.  31 14, 75  U.N.T.S.  31  [hereinafter  Geneva  Con- 
vention I];  Convention  for  the  Amelioration  of  the  Condition  of  Wounded,  Sick  and  Ship- 
wrecked Members  of  Armed  Forces  at  Sea  art.  2,  Aug.  12,  1949,  6  U.S.T.  3217,  75  U.N.T.S.  85 
[hereinafter  Geneva  Convention  II];  Convention  Relative  to  the  Treatment  of  Prisoners  of  War 
art.  2,  Aug.  12,  1949,  6  U.S.T.  3316,  75  U.N.T.S.  135  [hereinafter  Geneva  Convention  III];  and 
Convention  Relative  to  the  Protection  of  Civilian  Persons  in  Time  of  War  art.  2,  Aug.  12, 1949, 6 
U.S.T.  3516,  75  U.N.T.S.  287  [hereinafter  Geneva  Convention  IV]:  all  reprinted  in  DOCUMENTS 
ON  THE  LAWS  OF  WAR  (Adam  Roberts  &  Richard  Guelff  eds.,  3d  ed.  2000)  at  197,  222,  244  and 
301,  respectively.  Article  2  provides  in  pertinent  part  that  "the  present  Convention  shall  apply  to 
all  cases  of  declared  war  or  of  any  other  armed  conflict  which  may  arise  between  two  or  more  of 
the  High  Contracting  Parties,"  i.e.,  international  armed  conflict. 


237 


Law  of  War  Issues  in  Ground  Hostilities  in  Afghanistan 

10.  Geneva  Conventions  I,  II,  III  and  IV,  supra  note  9,  art.  3.  Article  3  applies  to  all  cases  "of 
armed  conflict  not  of  an  international  character  occurring  in  the  territory  of  one  of  the  High 
Contacting  Parties,"  i.e.,  non-international  armed  conflict. 

11.  YORAM  DINSTEIN,  THE  CONDUCT  OF  HOSTILITIES  UNDER  THE  LAW  OF  INTERNA- 
TIONAL Armed  Conflict  14  (2004). 

12.  Stewart,  supra  note  7,  at  16. 

13.  FEITH,  supra  note  8,  at  165. 

14.  Protocol  Additional  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  International  Armed  Conflicts  art.  43(1),  June  8, 1977, 1 125  U.N.T.S.  3, 
reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  9,  at  422  [hereinafter  Additional 
Protocol  I].  See  also  Geneva  Convention  I,  supra  note  9,  art.  13(1). 

15.  Marco  Sassoli,  Query:  Is  There  a  Status  of  "Unlawful  Combatant"? ',  in  ISSUES  IN  INTERNA- 
TIONAL Law  and  Military  Operations  57, 6 1  (Richard  B.  Jaques  ed.,  2006)  (Vol.  80,  US  Naval 
War  College  International  Law  Studies). 

16.  William  L.  Shirer,  The  Rise  and  Fall  of  the  Third  Reich  33-34, 42-43  (1960). 

17.  Posting  of  John  B.  Bellinger,  Unlawful  Enemy  Combatants  (Jan.  15,  2007),  to  http:// 
opiniojuris.org/author/john-bellinger/. 

1 8.  Commentary  on  the  Additional  Protocols  of  8  June  1 977  to  the  Geneva  Con- 
ventions OF  12  AUGUST  1949,  at  508  (Yves  Sandoz,  Christophe  Swinarski  &  Bruno  Zimmer- 
mann  eds.,  1987). 

19.  Geneva  Convention  III,  supra  note  9,  art.  4A(1). 

20.  Draft  Articles  on  the  Responsibility  of  States  for  Internationally  Wrongful  Acts,  Report 
of  the  International  Law  Commission  on  the  Work  of  its  Fifty-third  Session,  U.N.  GAOR, 
56th  Sess.,  Supp.  No.  10,  U.N.  Doc.  A/56/10  (2001),  available  at  http://untreaty.un.org/ilc/texts/ 
instruments/english/draft%20articles/9_6_2001.pdf.  Article  10  continues,  "(t]he  conduct  of  an 
insurrectional  movement  which  becomes  the  new  Government  of  a  State  shall  be  considered  an 
act  of  that  State  under  international  law."  Article  1 1  adds, "  [c]onduct  which  is  not  attributable  to 
a  State  under  the  preceding  articles  shall  nevertheless  be  considered  an  act  of  that  State  under  in- 
ternational law  if  and  to  the  extent  that  the  State  acknowledges  and  adopts  the  conduct  in  ques- 
tion as  its  own."  These  articles  appear  to  fairly  encompass  the  Taliban's  relation  to  the  State  of 
Afghanistan. 

21.  Geneva  Convention  III,  supra  note  9,  art.  4A(  1 ). 

22.  DINSTEIN,  supra  note  1 1,  at  48.  Footnote  omitted. 

23.  Marco  Sassoli  argues,  "This  allegation  may  astonish  those  who  remember  that  during 
Operation  Enduring  Freedom,  the  United  States  stressed  that  it  attacked  Taliban  command  and 
control  centers  and  did  not  complain  that  it  was  impossible  to  distinguish  the  Taliban  from  civil- 
ians." Sassoli,  supra  note  15,  at  61;  see  also  Jennifer  Elsea,  Congressional  Research  Service,  Treat- 
ment of  "Battlefield  Detainees"  in  the  War  on  Terrorism  (Jan.  13,  2005),  at  7;  Robert  K.  Goldman 
&  Brian  D.  Tittemore,  Unprivileged  Combatants  and  the  Hostilities  in  Afghanistan:  Their  Status 
and  Rights  Under  International  Humanitarian  and  Human  Rights  Law,  ASILTASK  FORCE  PAPERS 
(American  Society  of  International  Law),  Dec.  2002,  at  23-31,  available  at  http://www.pegc.us/ 
archive/ Jo urnals/goldman.pdf;  George  H.  Aldrich,  Editorial  Comments,  The  Taliban,  Al  Qaeda, 
and  the  Determination  of  Illegal  Combatants,  96  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 
891,894(2002). 

24.  Geneva  Convention  III,  supra  note  9,  art.  5;  Additional  Protocol  I,  supra  note  14,  art. 
45.1.  George  Aldrich  writes, 

Without  a  doubt,  the  most  difficult  element  to  defend  of  the  decisions  made  . . .  with 
respect  to  the  prisoners  taken  in  Afghanistan  is  the  blanket  nature  of  the  decision  to 

238 


Gary  D.  Solis 

deny  POW  status  to  the  Taliban  prisoners.  By  one  sweeping  determination,  the 
president  ruled  that  not  a  single  Taliban  soldier,  presumably  not  even  the  army 
commander,  could  qualify  for  POW  status  under  the  Geneva  Convention. 

Aldrich,  supra  note  23,  at  897. 

25.  Geneva  Convention  III,  supra  note  9,  art  5. 

26.  Elsea,  supra  note  23,  at  7. 

27.  Aldrich,  supra  note  23,  at  893  ("Its  methods  brand  it  as  a  criminal  organization  under  na- 
tional laws  and  as  an  international  outlaw"). 

28.  See  Geneva  Convention  IV,  supra  note  9,  art.  33;  Additional  Protocol  I,  supra  note  14, 
art.  51.2;  Protocol  Additional  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  Non-International  Armed  Conflicts  arts.  4(2)(d)  &  13(2),  June  8, 1977, 
1 125  U.N.T.S.  609,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  9,  at  483  [herein- 
after Additional  Protocol  II]. 

29.  See  Memorandum  from  John  C.  Yoo  &  Robert  Delahunty  to  William  J.  Haynes  II,  Gen- 
eral Counsel,  Department  of  Defense,  Re:  Application  of  Treaties  and  Laws  to  al  Qaeda  and 
Taliban  Detainees  (Jan.  9, 2002),  reprinted  in  THE  TORTURE  PAPERS:  THE  ROAD  TO  ABU  GHRAIB 
38  (Karen  J.  Greenberg&  Joshua  Drateleds.,  2005)  [hereinafter  Yoo  Memorandum]  ("Common 
Article  2 ...  is  limited  only  to  cases  of  declared  war  or  armed  conflict  'between  two  or  more  of  the 
High  Contracting  Parties.'  Al  Qaeda  is  not  a  High  Contracting  Party . . .  Al  Qaeda  is  not  covered 

by  common  Article  3,  because  the  current  conflict  is  not  covered  by  the  Geneva  Conventions 

Article  3  . .  .  shows  that  the  Geneva  Conventions  were  intended  to  cover  either:  a)  traditional 
wars  between  Nation  States  ...  or  non-international  civil  wars  ....  Our  conflict  with  al  Qaeda 
does  not  fit  into  either  category").  The  same  conclusion  applied  to  the  Taliban  ("Article  2  states 
that  the  Convention  shall  apply  to  all  cases  of  declared  war  or  other  armed  conflict  between  the 
High  Contracting  Parties.  But  there  was  no  war  or  armed  conflict  between  the  United  States  and 
Afghanistan . . .  if  Afghanistan  was  stateless  at  that  time.  No[r],  of  course,  is  there  a  state  of  war  or 
armed  conflict  between  the  United  States  and  Afghanistan  now").  And  "[e]ven  if  Afghanistan  un- 
der the  Taliban  were  not  deemed  to  have  been  a  failed  State,  the  President  could  still  regard  the 
Geneva  Conventions  as  temporarily  suspended  during  the  current  military  action." 

30.  See  Memorandum  from  Colin  L.  Powell  to  Counsel  to  the  President  8c  Assistant  to  the 
President  for  National  Security  Affairs,  Draft  Decision  Memorandum  for  the  President  on  the 
Applicability  of  the  Geneva  Convention  to  the  Conflict  in  Afghanistan  (Jan.  26,  2002),  reprinted 
in  TORTURE  PAPERS,  supra  note  29,  at  122. 

3 1 .  Memorandum  from  William  H.  Taft  IV,  Legal  Adviser,  Department  of  State,  to  Counsel 
to  the  President,  Comments  on  Your  Paper  on  the  Geneva  Convention  (Feb.  2,  2002),  reprinted 
in  id.  at  129. 

32.  Yoo  Memorandum,  supra  note  29  ("The  weight  of  informed  opinion  strongly  supports 
the  conclusion  that . . .  Afghanistan  was  a  Tailed  State'  whose  territory  had  been  largely  overrun 
and  held  by  violence  by  a  militia  or  faction  rather  than  by  a  government.  Accordingly,  Afghani- 
stan was  without  the  attributes  of  statehood  necessary  to  continue  as  a  party  to  the  Geneva  Con- 
ventions, and  the  Taliban  militia [,]  like  al  Qaeda,  is  therefore  not  entitled  to  the  protections  of 
the  Geneva  Convention"). 

33.  Memorandum  from  Jay  S.  Bybee  to  Alberto  R.  Gonzales,  Counsel  to  the  President,  & 
William  J.  Haynes  II,  General  Counsel  of  the  Department  of  Defense,  Re:  Application  of  Treaties 
and  Laws  to  al  Qaeda  and  Taliban  Detainees  (Jan.  22, 2002),  reprinted  in  TORTURE  PAPERS,  supra 
note  29,  at  81  ("Further,  common  Article  3  addresses  only  non-international  conflicts  that  occur 
within  the  territory  of  a  single  state  party,  again,  like  a  civil  war.  This  provision  would  not  reach 


239 


Law  of  War  Issues  in  Ground  Hostilities  in  Afghanistan 

an  armed  conflict  in  which  one  of  the  parties  operated  from  multiple  bases  in  several  different 
states"). 

34.  Exec.  Order  No.  13,440,  72  Fed.  Reg.  40,707  (July  24,  2007),  available  at  http:// 
www.fas.org/irp/offdocs/eo/eo-13440.htm  ("On  February  7,  2002, 1  determined  for  the  United 
States  that  members  of  al  Qaeda,  the  Taliban,  and  associated  forces  are  unlawful  enemy  combat- 
ants who  are  not  entitled  to  the  protections  that  the  Third  Geneva  Convention  provides  to  pris- 
oners of  war.  I  hereby  reaffirm  that  determination  . . ."). 

35.  Hamdan  v.  Rumsfeld,  548  U.S.  557,  629-31  (2006). 

36.  Ricardo  Sanchez,  Wiser  in  Battle  144  (2008). 

37.  Memorandum  from  the  Secretary  of  Defense  to  the  Chairman  of  the  Joint  Chiefs  of  Staff, 
Status  of  Taliban  and  Al  Qaeda  (Jan.  19,  2002),  reprinted  in  TORTURE  PAPERS,  supra  note  29,  at 
80. 

38.  Jack  Goldsmith,  The  Terror  Presidency  120  (2007). 

39.  Ex  parte  Quirin,  317  U.S.  1  (1942). 

40.  Mark  D.  Maxwell  8c  Sean  M.  Watts,  'Unlawful  Enemy  Combatant':  Status,  Theory  of  Cul- 
pability, or  Neither?,  5  JOURNAL  OF  INTERNATIONAL  CRIMINAL  JUSTICE  19,  21  (2007). 

41.  Marco  Sassoli,  The  Status  of  Persons  Held  in  Guantdnamo  under  International  Humani- 
tarian Law,  2  JOURNAL  OF  INTERNATIONAL  CRIMINAL  JUSTICE  96,  123  (2004). 

42.  Kenneth  Watkin,  21st  Century  Conflict  and  International  Humanitarian  Law:  Status  Quo 
or  Change?,  in  INTERNATIONAL  LAW  AND  ARMED  CONFLICT:  EXPLORING  THE  FAULTLINES  265, 
286  (Michael  N.  Schmitt  8c  Jelena  Pejic  eds.,  2007). 

43.  Charles  H.  B.  Garraway,  'Combatants'  -  Substance  or  Semantics?,  in  id.,  at  327. 

44.  US  Department  of  Defense,  Directive  23 10.0 IE,  The  Department  of  Defense  Detainee 
Program  (Sept.  5,  2006),  available  at  http://www.dtic.mil/whs/directives/corres/pdf/231001p 
.pdf. 

45.  Chairman  of  the  Joint  Chiefs  of  Staff,  Joint  Publication  3-63,  Detainee  Operations,  at  1-4 
(2008). 

46.  Stewart,  supra  note  7,  at  10-16. 

47.  Staff  Report,  26th  MEU  Tapped  for  Enduring  Freedom,  MARINE  CORPS  TIMES  (Nov.  26, 
2001 ),  at  9;  Gordon  Lubold,  Marines  Prepare  to  Leave  Afghanistan,  MARINE  CORPS  TIMES  (Jan.  7, 
2002),  at  10. 

48.  Afghanistan's  first  US  military  killed  in  action  was  Army  Sgt.  1st  Class  Nathan  R.  Chap- 
man, killed  in  a  January  1,  2002  firelight  in  Paktia. 

49.  For  Predator  characteristics,  see  MQ-1  Predator  Unmanned  Aircraft  System,  http://www.af 
.mil/factsheets/factsheet.asp?fsID=122;  Predator  RQ-1  /  MQ-1  /  MQ-9  Reaper  -  Unmanned  Aerial 
Vehicle  (UAV),  USA,  http://www.airforce-technology.com/projects/predator  (both  last  visited 
Feb.  24,  2009). 

50.  It  may  be  argued  that  the  Vietnam  War's  Phoenix  Program,  Operation  El  Dorado  Can- 
yon (the  1986  bombing  of  Libyan  leader  Muammar  Qadhafi),  or  the  attacks  on  Osama  Bin 
Laden  in  1998  (when  he  was  linked  to  the  bombing  of  US  embassies  in  Dar  es  Salaam  and  Nai- 
robi), constituted  targeted  killing.  Those  attacks  may  also  be  argued  to  be  assassinations  and  at- 
tempted assassinations,  mounted  with  political  rather  than  tactical  motives. 

51.  Seymour  M.  Hersh,  Manhunt,  NEW  YORKER,  Dec.  23,  2002,  at  66. 

52.  No  holds  barred,  ECONOMIST,  Nov.  7,  2002,  at  49. 

53.  There  are  other  definitions  in  scholarly  articles.  One,  for  example,  is  "[p]remeditated 
killing  of  an  individual  by  a  government  or  its  agents."  William  C.  Banks  8c  Peter  Raven-Hansen, 
Targeted  Killing  and  Assassination:  The  U.S.  Legal  Framework,  37  UNIVERSITY  OF  RICHMOND 
LAW  REVIEW  667, 671  (2003).  Another  is  "the  intentional  killing  of  a  specific  civilian  who  cannot 


240 


Gary  D.  Solis 

reasonably  be  apprehended,  and  who  is  taking  a  direct  part  in  hostilities,  the  targeting  done  at 
the  direction  and  authorization  of  the  state  in  the  context  of  an  international  or  noninterna- 
tional  armed  conflict."  Gary  D.  Solis,  Targeted  Killing  and  the  Law  of  Armed  Conflict,  NAVAL  WAR 
COLLEGE  REVIEW,  Spring  2007,  at  127,  127. 

54.  Nils  Melzer,  Targeted  Killing  in  International  Law  5  (2008). 

55.  See,  e.g..  Second  Expert  Meeting:  Direct  Participation  in  Hostilities  under  International 
Humanitarian  Law  (Oct.  25-26,  2004),  available  at  http://www.icrc.org/Web/eng/siteengO.nsf/ 
htmlall/participation-hostilities-ihl-311205/$File/Direct_participation_in_hostilities_2004_eng 
.pdf. 

56.  MELZER,  supra  note  54,  at  9-10. 

57.  Will  Lester,  Poll  Finds  Support  for  Use  of  Torture  in  War  on  Terror,  WASHINGTON  TIMES, 
Dec.  7,  2005,  at  Al. 

58.  See  Press  Release,  The  White  House,  President  Discusses  Creation  of  Military  Com- 
missions to  Try  Suspected  Terrorists  (Sept.  6,  2006),  available  at  http://georgewbush-whitehouse 
.archives.gov/news/releases/2006/09/20060906-3.html  ("In  some  cases,  we  determine  that  indi- 
viduals we  have  captured  pose  a  significant  threat,  or  may  have  intelligence  that  we  and  our  allies 
need . . .  and  they  withhold  information  that  could  save  American  lives.  In  these  cases,  it  has  been 
necessary  to  move  these  individuals  to  an  environment  where  they  can  be  held  secretly,  ques- 
tioned by  experts,  and — when  appropriate — prosecuted  for  terrorist  acts"). 

59.  Self-licensed  to  kill,  ECONOMIST,  Aug.  4,  2001,  at  12  ("Israel  justifies  these  extra-judicial 

killings  as  self-defense But  the  usual  context  of  such  a  discussion  would  be  that  the  two  sides 

involved  were  at  war  .  . . .");  Editorial,  Assassination  III  Befits  Israel,  NEW  YORK  TIMES,  Oct.  7, 
1997,  at  A24  ("[Tjrying  to  assassinate  Palestinian  leaders  in  revenge  is  not  the  answer"). 

60.  In  1989,  Abraham  D.  Sofaer,  then  US  State  Department  Legal  Adviser,  equivocated: 

While  the  U.S.  regards  attacks  on  terrorists  being  protected  in  the  sovereign  territory  of 
other  States  as  potentially  justifiable  when  undertaken  in  self-defense,  a  State's  ability  to 
establish  the  legality  of  such  an  action  depends  on  its  willingness  openly  to  accept 
responsibility  for  the  attack,  to  explain  the  basis  for  its  action,  and  to  demonstrate  that 
reasonable  efforts  were  made  prior  to  the  attack  to  convince  the  State  whose  territorial 
sovereignty  was  violated  to  prevent  the  offender's  unlawful  activities  from  occurring. 

Abraham  D.  Sofaer,  Terrorism,  the  Law,  and  the  National  Defense,  126  MILITARY  LAW  REVIEW 
89,  121  (1989). 

61.  James  Risen  &  David  Johnston,  Bush  Has  Widened  Authority  ofC.I.A.  to  Kill  Terrorists, 
NEW  YORK  TIMES,  Dec.  15,  2002,  at  Al. 

62.  MELZER,  supra  note  54,  at  41,  409. 

63.  Associated  Press,  9  Suspected  Insurgents  Killed  in  Missile  Strike,  Pakistan  Says,  NEW  YORK 
TIMES,  Aug.  14,  2008,  at  A7. 

64.  Josh  Meyer,  CIA  Expands  Use  of  Drones  in  Terror  War,  LOS  ANGELES  TIMES,  Jan.  29, 
2006,  at  Al  ("The  Predator  strikes  have  killed  at  least  four  senior  al  Qaeda  leaders,  but  also  many 
civilians,  and  it  is  not  known  how  many  times  they  missed  their  targets"). 

65.  See,  e.g.,  Candace  Rondeaux,  Civilian  Airstrike  Deaths  Probed,  WASHINGTON  POST,  July 
25,  2008,  at  A12  ("78  have  died  in  three  incidents  this  month  alone,  Afghan  officials  say"); 
Carlotta  Gall,  British  Criticize  U.S.  Air  Attacks  in  Afghan  Region,  NEW  YORK  TIMES,  Aug.  9, 2007, 
atAl. 

66.  US  GOVERNMENT  ACCOUNTABILITY  OFFICE,  AFGHAN  SECURITY:  EFFORTS  TO  ESTAB- 
LISH Army  and  Police  Have  Made  Progress,  but  Future  Plans  Need  to  Be  Better  De- 
fined 5  (2005),  available  at  http://www.gao.gov/new.items/d05575.pdf. 


241 


Law  of  War  Issues  in  Ground  Hostilities  in  Afghanistan 

67.  US  Department  of  State,  Timeline  —  Key  Events  in  Afghanistan's  Political  and  Eco- 
nomic Reconstruction,  Jan.  26,  2006,  http://www.america.gov/st/pubs-english/2006/January/ 
20060126120012dpnosmoht0.9750482.html. 

68.  Agreement  on  Provisional  Arrangements  in  Afghanistan  Pending  the  Re-establishment 
of  Permanent  Government  Institutions,  attached  to  Letter  from  the  Secretary-General  addressed 
to  the  President  of  the  Security  Council  para.  1.3,  U.N.  Doc.  S/2001/1 154  (Dec.  5, 2001),  available 
at  http://www.afghangovernment.com/AfghanAgreementBonn.htm  ("Upon  the  official  trans- 
fer of  power,  the  Interim  Authority  shall  be  the  repository  of  Afghan  sovereignty. ...  As  such,  it 
shall,  throughout  the  interim  period,  represent  Afghanistan  in  its  external  relations  and  shall  oc- 
cupy the  seat  of  Afghanistan  at  the  United  Nations  ..."). 

69.  Christian  Lowe,  Leathernecks  Aim  to  Take  Back  a  Province,  MARINE  CORPS  TIMES,  June 
28,  2004,  at  10. 

70.  Paul  Merida,  Dismounted  Infantry  Operations,  MARINE  CORPS  GAZETTE,  Nov.  2004,  at 
39. 

7 1 .  James  W.  Garner,  Contributions,  Requisitions,  and  Compulsory  Service  in  Occupied  Terri- 
tory, 11  American  Journal  of  International  Law  106  (1917). 

72.  ii  georg  schwarzenberger,  international  law  as  applied  by  international 
Courts  and  Tribunals:  The  Law  of  Armed  Conflict  230  (1968). 

73.  Charter  of  the  International  Military  Tribunal  arts.  6(b)  &  6(c),  Aug.  8,  1945,  59  Stat. 
1544,  82  U.N.T.S.  280,  available  at  http://avalon.law.yale.edu/imt/imtconst.asp. 

74.  See,  e.g.,  Trial  of  Robert  Wagner,  Gauleiter  and  Six  Others  (Perm.  Milit.  Trib.  at 
Strasboug,  1946,  and  Ct.  of  Appeal,  July  24,  1946),  III  LAW  REPORTS  OF  TRIALS  OF  WAR 
CRIMINALS  23  (UN  War  Crimes  Commission,  1948);  Trial  of  Jean-Pierre  Lex  (Perm.  Milit.  Trib. 
at  Nancy,  May  13,  1946),  VII  LAW  REPORTS  OF  TRIALS  OF  WAR  CRIMINALS  23  (UN  War  Crimes 
Commission,  1948). 

75.  Article  147  of  Geneva  Convention  IV  makes  the  unlawful  transfer  of  protected  persons 
from  an  occupied  area  a  grave  breach,  as  does  Additional  Protocol  I.  Additional  Protocol  I,  supra 
note  14,  art.  85.4(a). 

76.  Commentary  IV  Geneva  Convention  Relative  to  the  Protection  of  Civilian 
Persons  in  Time  of  War  278-79  (Jean  S.  Pictet  ed.,  1958). 

77.  Additional  Protocol  II,  supra  note  28,  art.  17.2. 

78.  Statute  of  the  International  Criminal  Court  art.  8(2)(e),  July  17, 1998, 2187  U.N.T.S.  90, 
available  at  http://www.un.org/law/icc/statute/romefra.htm. 

79.  Statute  of  the  International  Criminal  Tribunal  for  the  former  Yugoslavia  art.  5(d),  S.C. 
Res.  827,  U.N.  Doc.  S/RES/827  (May  23,  1993),  available  at  http://www.icls.de/dokumente/ 
icty_statut.pdf;  Statute  of  the  International  Criminal  Tribunal  for  Rwanda  art.  3(d),  S.C.  Res. 
955,  U.N.  Doc.  S/RES/955  (Nov.  8,  1994),  available  at  http://www.un.org/ictr/statute.html. 

80.  l  Customary  International  Humanitarian  Law  458  (Rule  129)  (Jean-Marie 
Henckaerts  &  Louise  Doswald-Beck  eds.,  2005).  The  study  notes  that  Israel  argues  that  Article  49 
of  Geneva  Convention  IV  was  not  meant  to  apply  to  the  deportation  of  selected  individuals  for 
reasons  of  public  order  and  security,  and  that  Article  49  is  not  customary  international  law  and 
contrary  deportation  orders  under  Israeli  domestic  law  were  lawful.  Id. 

81.  Id.  at  459  &  457. 

82.  Geneva  Convention  IV,  supra  note  9,  art.  76. 

83.  Article  4  of  Geneva  Convention  IV  provides  in  pertinent  part  that  "nationals  of  a  co- 
belligerent  State,  shall  not  be  regarded  as  protected  persons  while  the  State  of  which  they  are  na- 
tionals has  normal  diplomatic  representation  in  the  State  in  whose  hands  they  are." 


242 


Gary  D.  Solis 

84.  Knut  Dormann,  The  Legal  Situation  of  "Unlawful/Unprivileged  Combatants,"  85  INTER- 
NATIONAL REVIEW  OF  THE  RED  CROSS  45  (2003).  In  US  domestic  law,  in  the  Military  Commis- 
sions Act  of  2006,  an  unlawful  combatant  is  defined  as  a  person  who  has  engaged  in,  or 
purposefully  and  materially  supported  another  in  engaging  in,  hostilities  against  the  United 
States  and  its  allies,  and  who  does  not  qualify  as  a  lawful  combatant,  or  an  individual  who  has 
been  deemed  an  unlawful  enemy  combatant  by  a  Combatant  Status  Review  Tribunal  or  any 
other  competent  tribunal.  Military  Commissions  Act  of  2006  §  948  a(l),  Pub.  L.  No.  109-366, 
120  Stat.  2600  (Oct.  17,  2006)  (codified  in  10  U.S.C.  §  47(A)). 

85.  DlNSTEIN,  supra  note  1 1,  at  29. 

86.  Jelena  Pejic,  'Unlawful/Enemy  Combatants':  Interpretations  and  Consequences,  in  INTER- 
NATIONAL LAW  AND  ARMED  CONFLICT,  supra  note  42,  at  340;  Department  of  the  Army,  FM  27- 
10,  The  Law  of  Land  Warfare  para.  31  (1956);  UK  MINISTRY  OF  DEFENCE,  THE  MANUAL  OF  THE 
LAW  OF  ARMED  CONFLICT  para.  9.18.1  (2004);  Prosecutor  v.  Delalic,  Case  No.  IT-96-21-T, 
Judgment,  para.  271  (Nov.  16,  1998). 

87.  William  A.  Schabas,  The  UN  International  Criminal  Tribunals  252-53  (2006), 
citing  Prosecutor  v.  Naletilic  et  all,  Case  No.  IT-98-34-T,  Judgment,  paras.  519-21  (Mar.  31, 
2003). 

88.  Prosecutor  v.  Kristic,  Case  No.  IT-98-33-T,  Trial  Chamber  Judgment,  paras.  521,  531— 
32  (Aug.  2, 2001).  See  also  Prosecutor  v.  Naletilic,  supra  note  87,  para.  519,  where  "forcible  trans- 
fer" is  defined  as  "the  movement  of  individuals  under  duress  from  where  they  reside  to  a  place 
that  is  not  of  their  choosing." 

89.  Prosecutor  v.  Stakic,  Case  No.  IT-97-24-T,  Judgment,  para.  662  (July  31,  2003). 

90.  Draft  Memorandum  from  Jack  I.  Goldsmith,  Assistant  Attorney  General,  to  Alberto  R. 
Gonzales,  Counsel  to  the  President,  Re:  Permissibility  of  Relocating  Certain  "Protected  Persons" 
from  Occupied  Iraq  (Mar.  19,  2004),  reprinted  in  TORTURE  PAPERS,  supra  note  29,  at  367. 

9 1 .  John  R.  Crook,  Contemporary  Practice  of  the  United  States  Relating  to  International  Law, 
Reported  Removal  of  Prisoners  from  Iraq,  99  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  253, 
266(2005). 

92.  John  R.  Crook,  Contemporary  Practice  of  the  United  States  Relating  to  International  Law, 
99  American  Journal  of  International  Law  479, 484  (2005). 

93.  Jelena  Pejic,  Terrorist  Acts  and  Groups:  A  Role  for  International  Law?,  75  BRITISH  YEAR- 
BOOK OF  INTERNATIONAL  LAW  71,  94  (2004). 

94.  Dana  Priest,  Memo  Lets  CIA  Take  Detainees  Out  of  Iraq,  WASHINGTON  POST,  Oct.  24, 
2004,  at  Al.  Six  of  the  initial  detainees  were  Algerians  captured  in  Bosnia  and  were  reportedly 
turned  over  to  the  CIA. 

95.  In  South  Vietnam,  from  January  1965  to  March  1973,  201  soldiers  and  77  Marines  were 
convicted  by  courts-martial  of  serious  offenses  against  Vietnamese  noncombatants.  Ninety- five 
soldiers  and  twenty-seven  Marines  were  convicted  of  murder  or  manslaughter  of  Vietnamese 
noncombatants.  GUENTER  LEWY,  AMERICA  IN  VIETNAM  324-25  (1978). 

96.  During  the  US-Vietnam  conflict,  the  US  Army  in  Vietnam,  at  the  direction  of  then-Colonel 
George  Prugh,  the  Military  Assistance  Command-Vietnam  Staff  Judge  Advocate,  recorded  the 
numbers  of  LOAC  offenses  referred  to  courts-martial.  When  he  was  transferred  from  theater, 
the  accounting  coasted  to  a  close.  See  GEORGE  S.  PRUGH,  LAW  AT  WAR:  VIETNAM  1964-1973 
(1975). 

97.  130  Yanks  Abused  Inmates  -  Pentagon,  DAILY  NEWS  (New  York),  Dec.  16,  2004,  at  1. 

98.  Eric  Schmitt,  Pentagon  Officials  Are  Hurrying  to  Correct  Conditions  in  Iraqi  Prisons,  NEW 
YORK  TIMES,  Sept.  9,  2004,  at  A 14,  citing  1 1 1  cases  in  Iraq. 


243 


Law  of  War  Issues  in  Ground  Hostilities  in  Afghanistan 

99.  Douglas  Jehl  &  Eric  Schmitt,  U.S.  Military  Says  26  Inmate  Deaths  May  Be  Homicide,  NEW 
YORK  TIMES,  Mar.  16,  2005,  at  Al. 

100.  John  Hendren,  Autopsies  Support  Abuse  Allegations,  LOS  ANGELES  TIMES,  Oct.  25, 2005, 
atAl. 

101.  Drew  Brown,  Report:  U.S.  Detainees'  Deaths  Go  Unaccounted,  PHILADELPHIA  INQUIRER, 
Feb.  23,  2006,  at  A2. 

102.  Carlotta  Gall,  U.N.  Monitor  of  Afghan  Rights  Accuses  U.S.  on  Detentions,  NEW  YORK 
TIMES,  Apr.  23,  2005,  at  A4;  Tim  Golden,  Army  Faltered  in  Investigating  Detainee  Abuse,  NEW 
YORK  TIMES,  May  22,  2005,  at  Al;  Tim  Golden,  Case  Dropped  Against  U.S.  Officer  in  Beating 
Deaths  of  Afghan  Inmates,  NEW  YORK  TIMES,  Jan.  8,  2006,  §  1,  at  13;  Tim  Golden,  Years  After  2 
Afghans  Died,  Abuse  Case  Falters,  NEW  YORK  TIMES,  Feb.  13,  2006,  at  Al;  Paul  von  Zielbauer, 
Green  Berets  Face  Hearing  on  Killing  of  Suspect  in  Afghan  Village,  NEW  YORK  TIMES,  Sept.  18, 
2007,  at  All. 

103.  Griff  Witte,  Marines  Open  Fire  After  Afghan  Ambush,  WASHINGTON  POST,  Mar.  5,  2007, 
atAl  1;  Ann  Scott  Tyson,  Marine  Unit  Is  Told  to  Leave  Afghanistan,  WASHINGTON  POST,  Mar.  24, 

2007,  at  A 12;  David  S.  Cloud,  U.S.  Military  Opens  Inquiry  Into  Whether  Marines  Killed  10  Afghans 
After  Attack  on  Convoy,  NEW  YORK  TIMES,  Mar.  24,  2007,  at  A6;  Carlotta  Gall,  Marines' Actions 
Called  Excessive  in  Afghanistan,  NEW  YORK  TIMES,  Apr.  15,  2007,  at  Al;  Paul  von  Zielbauer, 
Criminal  Charges  Are  Expected  Against  Marines,  Official  Says,  NEW  YORK  TIMES,  Apr.  27, 2007,  at 
A 14;  David  S.  Cloud,  U.S.  Pays  and  Apologizes  to  Kin  of  Afghans  Killed  by  Marines,  NEW  YORK 
TIMES,  May  9, 2007,  at  A12;  Josh  White,  69  Afghans'  Families  Get  a  U.S.  Apology,  WASHINGTON 
POST,  May  9, 2007,  at  A 1 2;  Peter  Spiegel,  Apology  Wrong,  General  Says,  LOS  ANGELES  TIMES,  May 
18,  2007,  at  A7;  Paul  von  Zielbauer,  Marines  to  Conduct  Inquiry  Into  the  Killings  of  Afghan  Civil- 
ians in  March,  NEW  YORK  TIMES,  Oct.  12,  2007,  at  A 10;  Paul  von  Zielbauer,  Marine  Inquiry  Into 
Afghan  Killings  to  Look  at  2  Officers,  Lawyer  Says,  NEW  YORK  TIMES,  Oct.  2 1 ,  2007,  at  A 1 0;  David 
Zucchino,  Marines  Were  Shot  At,  Army  Expert  Testifies,  LOS  ANGELES  TIMES,  Jan.  26,  2008,  at 
A 14;  Thorn  Shanker,  Marines  Won't  Charge  2  Officers  Whose  Men  Killed  Afghans  After  Car  Bomb- 
ing, NEW  YORK  TIMES,  May  24,  2008,  at  A5;  Andrew  Tilghman,  No  Criminal  Charges,  MARINE 
CORPS  TIMES,  June  2,  2008,  at  10. 

104.  Gary  Solis,  Military  Justice?,  US  NAVAL  INSTITUTE  PROCEEDINGS,  Oct.  2006,  at  24. 

105.  Christian  Lowe,  A  Mission  Ends,  MARINE  CORPS  TIMES,  May  29,  2006,  at  14. 

106.  See,  e.g.,  Thomas  Harding,  Despatch,  DAILY  TELEGRAPH  (London),  June  2,  2007,  at  21; 
Norma  Greenaway,  U.S.  public  wakens  to  forgotten  war;  Almost  no  debate  on  merits  of  involvement  in 
Afghanistan  except  to  beat  up  on  Bush,  GAZETTE  (Montreal),  Aug.  13, 2007,  at  A14;  In  Europe,  Gates 
to  push  for  NATO  help  in  Afghanistan,  CHRISTIAN  SCIENCE  MONITOR,  Dec.  23, 2007,  §  USA,  at  2. 

107.  Ann  Scott  Tyson,  US.  to  Bolster  Forces  in  Afghanistan,  WASHINGTON  POST,  Jan.  10, 

2008,  at  A4  ("The  United  States  now  provides  about  26,000  of  the  roughly  54,000  foreign  troops 
in  Afghanistan  and  has  the  lead  combat  role  in  the  eastern  part  of  the  country,  while  U.S.  Special 
Operations  forces  operate  in  all  regions.  British,  Canadian,  Australian  and  Dutch  forces  play  key 
combat  roles  in  southern  Afghanistan,  where  violence  has  surged  in  the  past  year  ..."). 

108.  Kimberly  Johnson,  Conway:  2-Front  war  will  overstretch  Corps,  MARINE  CORPS  TIMES, 
Feb.  4,  2008,  http://www.marinecorpstimes.com/news/2008/02/marine_conway_080202/.  The 
Commandant  of  the  Marine  Corps  is  quoted  by  Johnson  as  saying:  "We  can't  have  one  foot  in 
Afghanistan  and  one  foot  in  Iraq.  I  believe  that  would  be — an  analogy  would  be  having  one  foot 
in  the  canoe  and  one  foot  on  the  bank.  You  can't  be  there  long." 

109.  Reuters,  NATO  seeks  to  replace  U.S.  Marine  Afghan  mission,  Reuters  AlertNet,  June  13, 
2008,  http://www.alertnet.org/thenews/newsdesk/L13172622.htm. 


244 


Gary  D.  Solis 

110.  Amy  Balasco,  Congressional  Research  Service,  The  Cost  of  Iraq,  Afghanistan,  and  Other 
Global  War  on  Terror  Operations  Since  9/11  (July  14,  2008),  at  summary  page. 

111.  Carlotta  Gall,  Scars  of  a  Deadly  Insurgency  Line  Afghanistan's  Main  Road,  NEW  YORK 
TIMES,  Aug.  14,  2008,  at  Al. 

112.  Carlotta  Gall,  Ragtag  Taliban  Show  Tenacity  in  Afghanistan,  NEW  YORK  TIMES,  Aug.  4, 
2008,  at  Al. 

113.  Mark  Mazzetti,  U.S.  Analyst  Depicts  Al  Qaeda  as  Secure  in  Pakistan  and  More  Potent  Than 
in  2007,  NEW  YORK  TIMES,  Aug.  13,  2008,  at  A7. 

1 14.  Bartle  B.  Bull,  The  Wrong  Force  for  the  'Right  War,'  NEW  YORK  TIMES,  Aug.  14,  2008,  at 
A23. 

115.  Press  Release,  National  Intelligence  Counsel,  Declassified  Key  Judgments  of  the  National 
Intelligence  Estimate,  'Trends  in  Global  Terrorism:  Implications  for  the  United  States'  dated 
April  2006,  http://www.dni.gov/press_releases/Declassified_NIE_Key_Judgments.pdf  (last  vis- 
ited Feb.  26,  2009). 

116.  David  Wood,  Short-  Term  Strategies  Threaten  Success,  BALTIMORE  SUN,  Apr.  1 ,  2008,  at  1 . 

117.  Jason  Straziuso,  Narrow  Mission  for  Marines  in  Lush  Afghan  Poppy  Fields,  HOUSTON 
CHRONICLE,  May  3,  2008,  at  A24;  Paul  Wiseman,  In  Afghanistan,  Marines  Begin  Assault  on 
Taliban,  USA  TODAY,  Apr.  29,  2008,  at  6. 

1 18.  Rory  Stewart,  How  to  Save  Afghanistan,  TIME,  July  28,  2008,  at  30,  32. 

1 19.  Afghanistan  on  Fire,  NEW  YORK  TIMES,  Aug.  21,  2008,  at  A22. 


245 


X 


Combatants 


W.  Hays  Parks* 


Law  school  professors  are  known  for  devising  complex,  convoluted  examina- 
tion questions  with  factual  situations  at  best  remotely  associated  with  reality. 
The  following,  for  a  fictitious  law  of  war  course  final  examination,  might  be  viewed 
as  representative: 

State  A  is  a  sovereign  State  with  a  functioning  government  enjoying  diplomatic 
relations  with  other  nations.  It  is  a  member  of  the  United  Nations  in  good  standing  and 
since  1956  a  State  party  to  the  1949  Geneva  Conventions.  It  is  not  a  State  party  to  the 
1977  Protocols  I  and  II  Additional  to  the  1949  Geneva  Conventions. 

State  B  invades  State  A,  displaces  its  government,  and  installs  its  own  government. 
States  C,  D,  E  and  others  covertly  provide  funding  and  other  support,  including 
weapons,  to  indigenous  resistance  movements  within  State  A,  eventually  forcing  State 
B  to  withdraw.  Subsequently,  the  puppet  government  installed  by  State  B  during  its 
occupation  is  overthrown  by  a  tribal  faction  (Faction  1 )  covertly  funded  and  supported 
by  States  C  and  D.  Other  tribes  (Faction  2),  with  limited  support  from  outside  sources, 
oppose  rule  by  Faction  1.  Neither  replaces  the  previous  government  as  the  factions 
compete  for  control.  The  situation  deteriorates  into  a  civil  war. 


*  Senior  Associate  Deputy  General  Counsel,  International  Affairs  Division,  Office  of  General 
Counsel,  US  Department  of  Defense.  Statements  contained  herein  are  the  personal  views  of  the 
author  and  may  not  necessarily  reflect  official  positions  of  the  Department  of  Defense  or  any 
other  agency  of  the  United  States  government.  ©  2009  by  W.  Hays  Parks. 


II 


Combatants 


Factions  1  and  2  are  loose  amalgamations  of  occasional  if  disparate  indigenous  tribal 
alliances.  Following  long-standing  custom  within  State  A,  tribal  groups  change  sides, 
and  back  again,  as  battle  momentum  shifts.  Faction  1  replaces  personnel  casualties  and 
tribal  defections  primarily  from  a  pool  of  volunteer  and  dragooned  men  of  the  same 
tribe  in  neighboring  State  C,  divided  by  an  official  but  artificial  border  created  by  an 
unsuccessful  colonial  power  a  century  earlier  that  bisects  historic,  common  tribal 
territory. 

Given  their  heavy  financial  investment  in  support  of  Faction  1  and,  in  the  case  of  State 
C,  for  geopolitical  reasons,  States  C  and  D  decide  they  will  recognize  Faction  1  as  the 
government  of  State  A  when  Faction  1  gains  control  of  the  entire  country.  Each 
prematurely  recognizes  Faction  1  when  it  captures  Faction  2's  major  city.  Faction  l's 
success  is  short-lived.  It  suffers  a  significant  military  defeat,  and  retreats  from  Faction 
2's  major  city  and  the  territory  Faction  2  controls.  Resistance  to  Faction  1  continues 
with  varying  levels  of  intensity  throughout  State  A  except  in  its  territory  of  origin,  the 
southern  one-third  of  State  A. 

Neither  State  C  nor  D  withdraws  its  premature  recognition  of  Faction  1 .  State  F  joins 
States  C  and  D  in  recognizing  Faction  1  in  order  to  continue  bird-hunting  privileges  its 
wealthy  leaders  enjoy  in  State  A. 

Faction  1  aggressively  but  unsuccessfully  solicits  recognition  as  the  government  of 
State  A  from  the  United  Nations,  the  European  Union  or  any  of  the  remaining  190 
nations.  It  hosts  a  transnational  terrorist  group,  which  trains  and  organizes  foreign 
nationals  within  State  A  before  the  group  attacks  two  embassies  of  State  E  in  other 
nations,  killing  224  civilians  and  injuring  more  than  4,000.  State  E  responds  with 
limited  military  action  against  training  camps  of  the  transnational  terrorist  group  and 
requests  that  Faction  1  deliver  to  it  the  leader  of  the  terrorist  group.  Faction  1  offers  to 
do  so  if  State  E  will  recognize  it.  State  E  will  not,  and  Faction  1  does  not.  State  D  support 
of  and  relations  with  Faction  1  deteriorate  because  of  Faction  l's  hosting  the  leader  of 
the  transnational  terrorist  group,  a  former  citizen  of  State  D.  Faction  1  rapidly  becomes 
an  international  pariah.  Faction  l's  power  within  the  territory  it  controls  declines. 

Subsequently  the  transnational  terrorist  group  hosted  by  Faction  1  launches  a  major 
attack  on  the  territory  of  State  E,  a  member  of  the  North  Atlantic  Treaty  Organization 
(NATO).  Almost  three  thousand  people,  primarily  civilians,  representing  more  than 
ninety  nations  are  killed  or  missing  and  presumed  dead.  The  United  Nations  Security 
Council  and  NATO  support  military  action  against  Faction  1  and  the  transnational 
terrorist  group.  State  E  joins  with  military  forces  of  State  G  and  those  of  other 
governments  to  engage  in  military  operations  in  State  A  against  tribal  forces  aligned 
with  Faction  1  and  the  transnational  terrorist  group.  States  C,  D  and  F  withdraw  their 
recognitions  of  Faction  1. 


248 


W.  Hays  Parks 

Throughout  the  fighting,  Faction  1  tribes  continue  to  operate  in  indigenous  attire 
under  tribal  command  and  control  rather  than  as  conventional,  highly  structured, 
uniformed  military  forces.  Members  of  the  transnational  terrorist  group  dress  in  all 
black  or  indigenous  attire.  Some  special  operations  forces  (SOF)  from  States  E,  G  and 
other  nations  allied  with  them  working  with  Faction  2  forces  dress  in  Faction  2  tribal 
attire  to  avoid  being  targeted  as  high-value  targets  by  Faction  1  and  its  transnational 
terrorist  partners. 

Tribal  forces  aligned  with  Faction  1  abandon  their  informal  alliance  with  it  to  join  with 
Faction  2  and  military  forces  of  States  E  and  G  to  defeat  Faction  1.  The  leaders  of 
Faction  1  and  the  transnational  terrorist  group  flee  into  tribal  territorial  areas  in  State  C. 

A  new  leader  is  identified  to  head  a  national,  democratically  elected  government  in 
State  A.  His  government  gains  recognition  from  the  United  Nations  and  national 
governments  (including  States  B,  C,  D,  E,  F  and  G)  as  the  government  of  State  A. 

In  the  process  of  the  military  operations  against  Faction  1  and  its  transnational  terrorist 
partner  by  States  E  and  G,  members  of  Faction  1  and  the  terrorist  group  are  captured. 

What  is  the  law  of  war  status  of  the  members  of  Faction  1  and  transnational  terrorist 
group  forces  captured  during  operations  by  States  E  and  G?  Had  States  E  and  G  special 
operations  forces  wearing  Faction  2  attire  been  captured  by  Faction  1  forces  or  its 
transnational  terrorist  partners,  would  they  have  been  entitled  to  prisoner  of  war 
status? 

Before  the  al-Qaeda  attack  on  the  United  States  on  September  11,  2001,  and  the 
military  response  of  the  United  States  against  the  Taliban  and  al-Qaeda,  the  sce- 
nario would  have  qualified  as  humorously  improbable  enough  to  have  been  a  law 
school  examination  question.  But  it  was  precisely  the  situation  faced  by  US  and  co- 
alition military  forces  as  they  entered  Afghanistan  to  commence  offensive  military 
operations  against  the  Taliban  and  al-Qaeda  in  October  2001. 

A  simple — or  perhaps  better  said,  simplistic — approach  would  be  to  review  the 
four  1949  Geneva  Conventions  to  determine  their  applicability  to  Taliban  and  al- 
Qaeda  fighters  or  to  the  SOF  of  States  E  and  G  wearing  indigenous  attire  of  the  fac- 
tion with  which  they  were  aligned.1  However,  as  the  fictitious  professor's  examina- 
tion question  suggests,  the  situation  is  far  from  simple.  More  information  is 
necessary  from  factual,  cultural  and  historical  standpoints  prior  to  determining  the 
legal  statuses  of  the  individuals  in  question. 

In  an  essay  published  in  2003,  this  author  concluded  that  the  Taliban  was  not  the 
government  of  Afghanistan  at  the  time  coalition  operations  began  against  it  in  late 
200 1.2  Three  highly  respected  colleagues  argued  that  the  Taliban  was  the  de  facto 


249 


Combatants 


government  of  Afghanistan.3  Subsequent  scholarship  by  historians,  regional  ex- 
perts, military  officers  who  served  in  Afghanistan  during  the  period  in  question, 
official  military  histories  and  others  provide  more  information  than  did  contem- 
porary media  reports,  enabling  a  clearer  picture  from  which  to  conduct  a  fresh 
analysis  of  Taliban  status.  Moreover,  media  accounts  in  large  do  not  understand 
legal  nuances,  such  as  the  distinction  between  physical  presence  of  armed  groups 
in  an  area,  international  law  conditions  for  a  group  to  be  regarded  as  a  govern- 
ment or  law  of  war  criteria  for  occupation.  "Occupation"  in  media  parlance  is  a 
general  term  significantly  different  from  the  latter. 

Following  is  a  summary  of  the  situation  that  existed  during  the  period  in  ques- 
tion; analysis  of  the  Taliban's  status  as  a  government  and  the  combatant  status  of 
Taliban  and  al-Qaeda  fighters;  brief  consideration  of  the  law  of  war  issue  of  US  and 
other  nations'  special  operations  forces'  wear  of  indigenous  attire  as  they  fought 
the  Taliban  and  al-Qaeda;  and  analysis  of  the  Bush  administration's  legal  rationale 
for  denial  of  prisoner  of  war  status  to  captured  al-Qaeda  and  Taliban. 

In  considering  the  fact  situation  and  legal  determinations  one  may  draw  from  it, 
two  leading  scholars  have  emphasized  the  importance  of  information  beyond  the 
face  of  applicable  treaties.  Writing  in  his  classic  191 1  War  Rights  on  Land>  James 
Moloney  Spaight  argued: 

War  law  has  never  been  presented  to  officers  in  an  attractive  form,  as  it  might  have  been 
(I  submit  with  diffidence)  if  the  writers  had  insisted  on  the  historical,  human,  and 
practical  side  rather  than  on  the  legal  and  theoretical  one.  But  the  difficulty  of  the 
subject,  and  the  necessity  for  a  careful  study  of  it  have  not  been  brought  home  to 
officers:  they  underestimate  its  importance  and  complexity.4 

More  than  eight  decades  later,  Spaight's  view  was  shared  by  Sir  Adam  Roberts: 

The  laws  of  war  are  strange  not  only  in  their  subject  matter,  which  to  many  people 
seems  a  contradiction  in  terms,  but  also  in  their  methodology.  There  is  little  tradition 
of  disciplined  and  reasoned  assessment  of  how  the  laws  of  war  have  operated  in 
practice.  Lawyers,  academics,  and  diplomats  have  often  been  better  at  interpreting  the 
precise  legal  meaning  of  existing  accords  or  at  generalizing  about  the  circumstances  in 
which  they  can  or  cannot  work.  In  short,  the  study  of  the  law  needs  to  be  integrated 
with  the  study  of  history:  if  not,  it  is  inadequate.5 

While  the  present  author  agrees  with  Spaight  and  Sir  Adam  as  to  the  necessity  to 
know  and  understand  relevant  history  in  order  to  apply  the  law,  in  cases  such  as  the 
conflict  in  Afghanistan  knowledge  of  more  than  history  is  necessary.  An  apprecia- 
tion of  a  nation's  history,  its  culture,  its  geography  and  other  local  factors  may  be 


250 


W.  Hays  Parks 

necessary.  Interpreting  and  applying  the  law  of  war  is  not  always  a  matter  of  mirror 
imaging  or  "one  size  fits  all."  These  factors  are  relevant  in  interpreting  nuances  in 
law  of  war  treaties  in  order  to  determine  their  application.  Understanding  Afghan- 
istan's regional  and  national  history,  its  geography,  its  culture,  political  structure 
and  law  of  war  history  are  important  in  determining  whether  captured  Taliban 
were  entitled  to  prisoner  of  war  status.  So,  too,  are  the  history  of  the  law  of  war  and 
the  history  of  (and  therefore  the  meaning  and  intent  of)  specific  treaty  provisions. 
There  is  no  evidence  any  of  these  factors  were  considered  by  senior  political  leaders 
and  legal  advisers  in  providing  advice  to  President  George  W.  Bush  with  regard  to 
prisoner  of  war  entitlement  for  captured  Taliban.  Looking  at  the  conflict  in  Af- 
ghanistan between  the  Taliban  and  the  United  States  and  its  coalition  partners  as 
one  might  consider  an  armed  conflict  in  (for  example)  Norway,  Switzerland  or 
Australia  is  akin  to  considering  the  most  common  way  to  core  an  apple  while  hold- 
ing a  baseball;  each  may  have  the  same  shape,  but  otherwise  they  are  uniquely  dif- 
ferent. Political  and  military  leaders  and  their  legal  advisers  must  be  mindful  of  the 
risk  of  automatically  assuming  all  opponents  and  all  situations  fit  neatly  within  the 
same  treaty  template.  In  the  opening  stages  of  US  operations  in  Afghanistan,  igno- 
rance and  skepticism  of  the  law  of  war  by  some  within  the  Bush  administration  re- 
sulted in  errors  of  law  and  judgment  with  respect  to  the  legal  basis  for  law  of  war 
protection  for  captured  Taliban  and  al-Qaeda,  and  the  legal  rationale  for  denial  of 
prisoner  of  war  status  to  them.6 

In  this  regard  this  author  has  heard  it  said,  "As  all  194  nations  are  State  parties 
to  the  1949  Geneva  Conventions,  they  have  universal  applicability."  This  state- 
ment, while  factually  and  legally  accurate,  fails  to  recognize  that  legal  applicability 
differs  from  application  in  fact.  The  quoted  statement  tends  to  suggest  a  perfect 
mirror  imaging  in  application.  The  title  of  the  volume  in  which  Sir  Adam's  com- 
ments are  contained — The  Laws  of  War:  Constraints  on  Warfare  in  the  Western 
World — acknowledges  not  only  the  predominately  Western  European  origins  of 
the  law  of  war  but  the  challenges  that  may  be  faced  in  its  application  outside  na- 
tions of  Western  European  tradition.7 

It  is  in  this  context  that  the  question  of  the  statuses  of  combatants  in  the  war 
fought  by  the  United  States  and  its  allies  against  the  Taliban  and  al-Qaeda  in  Af- 
ghanistan in  late  2001  is  examined.  The  specific  time  frame  will  be  from  the  arrival 
of  the  first  US  military  ground  force  elements  in  Afghanistan  on  October  20, 200 1,8 
to  the  signing  of  a  memorandum  by  President  George  W.  Bush  on  February  7, 2002 
which,  inter  alia,  accepted  the  conclusion  of  the  Department  of  Justice  denying 
prisoner  of  war  status  to  captured  Taliban  and  al-Qaeda.9 


r 


251 


Combatants 


Afghanistan 

Afghanistan  has  been  described  as  having  "three  constants:  perpetual  internal 
fighting  between  tribal  ethnic  groups,  the  dominance  of  Islam  in  society,  and  inter- 
vention by  external  actors  using  this  discord  to  achieve  influence  in  the  country."10 
A  nation  divided  by  mountainous  terrain,  limited  in  modern  transportation  devel- 
opment and  with  few  large  cities  contributes  to  emphasis  on  tribal  loyalty,  a  highly 
decentralized  form  of  government  and  strong  resistance  to  central  authority  by  its 
citizens.11  Understanding  its  culture  and  local  dynamics  is  critical  to  understand- 
ing Afghanistan;  in  contrast  to  Western  European  nations,  controlling  Afghani- 
stan's capital  city  of  Kabul  does  not  necessarily  equal  control  of  the  entire  nation, 
for  example.12  Even  within  tribes,  rivalries  and  blood  feuds  were  and  are  a  constant. 
Historian  Louis  Dupree  observed,  "No  Pashtun  [the  ruling  class  in  Afghanistan  for 
more  than  two  centuries13]  likes  to  be  ruled  by  another  .  .  .  particularly  someone 
from  another  tribe,  sub-tribe,  or  section."14  As  is  the  case  in  other  tribal-centric  na- 
tions, tribes  in  Afghanistan  historically  have  been  inclined  to  suspend  tribal  rival- 
ries and  blood  feuds  to  resist  foreign  invasion,  if  only  briefly  enough  to  defeat  them 
before  returning  to  their  internal  competition.15  Shultz  and  Dew  offer  a  Somali 
proverb  that  could  be  said  to  apply  equally  well  to  Afghanistan  tribal  warrior  ways: 

Me  and  my  clan  against  the  world; 
Me  and  my  family  against  my  clan; 
Me  and  my  brother  against  my  family; 
Me  against  my  brother.16 

In  the  same  context,  the  same  authors,  while  again  referring  to  clan  tradition  in 
Somalia,  quote  I.  M.  Lewis's  observation  that  applies  equally  well  to  Afghanistan's 
tribal  traditions:  "Although  they  esteem  fighting  so  highly,  the  pastoralists  have  no 
standing  military  organization  or  system  of  regiments.  Armies  and  raiding  parties 
are  ad  hoc  formations  and  while  feuds  often  last  for  years,  and  sometimes  genera- 
tions, they  are  generally  waged  in  guerrilla  campaigns."17 

Afghanistan's  history  has  included  invasion  by  foreign  powers  and  competition 
for  its  control  as  a  commercial  route  or  "buffer  zone"  by  foreign  governments, 
most  commonly  known  for  the  nineteenth-century  competition  between  England 
and  Russia  first  named  "The  Great  Game"  by  Captain  Arthur  Conolly  of  the  Bengal 
Cavalry,  later  popularized  by  Rudyard  Kipling  in  his  1901  novel  Kim.18  In  fighting 
one  another  or  foreign  invaders,  alliances  often  were  based  on  bargaining  more 
than  loyalties,  and  loyalties  were  fleeting.  Tribal  forces  changed  sides  frequently  as 


252 


W.  Hays  Parks 

each  saw  the  tide  of  battle  shifting  or  if  offered  "a  better  deal"  by  the  opposing  force 
or  a  better  chance  for  post-conflict  success.19 

Interim  History:  The  British  Colonial  Period 

British  military  history  in  Afghanistan  is  long  in  period  of  time,  extensive,  but  for 
the  most  part  beyond  the  scope  of  this  author's  topic.20  However,  it  contains  one 
point  germane  to  understanding  the  situation  on  the  ground  in  October  2001  and 
through  the  period  in  question. 

The  artificiality  of  Afghanistan's  borders,  particularly  with  respect  to  its  eastern 
border  with  Pakistan,  is  the  result  of  an  arbitrary  nineteenth- century  colonial  divi- 
sion of  tribal  territory  for  British  security  purposes.  It  is  named  for  Sir  Henry 
Mortimer  Durand,  who  negotiated  and  drew  a  line  dividing  Wazari  tribal  territory 
to  establish  a  border  between  Afghanistan  and  what  today  is  Pakistan.  In  addition 
to  the  fact  that  a  line  drawn  on  a  map  seldom  is  easy  to  find  with  precision  on  the 
ground,  particularly  in  terrain  as  rugged  as  that  between  Pakistan  and  Afghanistan, 
the  "backdoor"  it  offered  between  the  two  nations  played  heavily  in  mujahidin  sup- 
port in  fighting  the  Soviet  occupation  and  Wazari  support  for  the  Taliban  follow- 
ing the  Soviet  departure.  Permanently  resentful  of  the  British-established  border 
and  accustomed  to  traveling  unfettered  by  multiple  footpaths  between  the  two  na- 
tions,21 tribal  traditions  and  support  in  armed  conflict  against  opposing  forces — 
whether  indigenous  or  foreign — meant  more  to  determining  the  way  the  Taliban 
manned,  formed  and  commanded  its  forces  than  Western  concepts  of  defined  and 
marked  borders,  their  sanctity,  and  military  command  and  control.  Tribal  loyalty 
remained  paramount.22 

Afghanistan  enjoyed  relative  stability  and  modernization  during  the  reign  of 
King  Muhammed  Zahir  Shah  (1933-1973).  A  "constitutional  monarchy"  was  es- 
tablished on  October  1,  1963.23  On  July  17,  1973,  his  cousin  Daoud  executed  a 
bloodless  coup  during  the  king's  absence  from  the  country  to  abolish  the  monar- 
chy and  become  Afghanistan's  first  president  and  head  of  the  communist  People's 
Democratic  Party  of  Afghanistan  (PDPA).  Unable  to  achieve  nationwide  eco- 
nomic and  agricultural  reform,24  he  was  murdered  five  years  later  by  PDPA  mem- 
bers. His  assassination  and  other  PDPA  failures  eventually  led  to  the  overt  Soviet 
invasion  on  December  22,  1979.25 

The  Soviet  occupation,  Afghan  resistance  and  US  covert  assistance  to  the  latter 
against  the  former  have  been  well  told  and  became  the  subject  of  a  popular  movie.26 
Soviet  forces  faced  a  mujahidin  resistance  repeating  the  historic  practice  of  indige- 
nous foes  joining  forces  to  resist  a  foreign  invader.27  Unable  to  defeat  the 
mujahidin  resistance  funded  and  supplied  by  China,  Egypt,  Iran,  Pakistan  and  the 

253 


Combatants 


United  States  and  strongly  supported  by  the  indigenous  population,  the  Soviet 
40th  Army  withdrew  on  February  15,  1989.28 

US  and  other  foreign  support  to  the  mujahidin  led  to  a  case  of  unintended  con- 
sequences, as  it  left  heavily-armed  forces  in  Afghanistan,  described  by  one  author 
as  "a  network  of  jihadis  without  a  jihad."29  Refugee  male  children  from  the  Soviet 
war  in  Afghanistan  were  placed  in  Saudi- funded  madrassas  in  Pakistan  teaching 
the  conservative  Wahhabi  rejection  of  "all  modern  interpretations  of  Islam  as  well 
as  the  mystical  Sufi  form  of  Islam,"30  in  essence  providing  a  "farm  club"  of  holy 
warriors  for  the  Taliban  in  its  eventual  effort  to  seize  control  of  Afghanistan  even 
before  the  Taliban  existed  in  name.  Foreign  financing  of  the  mujahidin  resistance 
funneled  through  Pakistan's  Inter-Services  Intelligence  Directorate  (ISID)  re- 
versed religious  toleration  and  other  modern,  liberal  practices  that  existed  in  the 
1970s,  replacing  them  with  narrow  Islamic  views.31 

Soviet  military  withdrawal  from  Afghanistan  left  in  place  remnants  of  the  weak 
Afghan  (PDPA)  Army  and  the  PDPA  puppet  regime  headed  by  President  Moham- 
med Najibullah.  While  the  PDPA  demise  was  regarded  as  inevitable,  it  was  delayed 
until  1992  as  mujahidin  allies  against  the  Soviet  occupation  endeavored  to  agree  to 
a  power-sharing  agreement,  without  success.  Following  Afghan  custom,  they  re- 
sumed fighting  one  another.32  Continued  fighting  led  to  a  civil  war  between  the 
various  factions,  collapse  of  the  PDPA,  and  the  replacement  of  the  Najibullah  gov- 
ernment by  one  headed  by  President  Burhanuddin  Rabbani  of  the  Islamic  Council 
of  Afghanistan.  Tribal  fighting  continued  and  lawlessness  increased,  leading  to 
Taliban  emergence  in  1994.33  President  Rabbani's  departure  in  1996  resulted  in 
collapse  of  the  remaining  limited  central  government  infrastructure,  leaving  Af- 
ghanistan in  the  position  of  a  failed  State,  existing  in  name  only.34 

Taliban  characteristics  and  origins  arguably  can  be  traced  to  the  Wahhabi  sect 
founded  by  Mohammed  ibn  Abd  al-Wahhab  in  the  eighteenth  century,35  but  its 
contemporary  formation  originated  in  1994  in  Pashtun-dominated  southern  Af- 
ghanistan.36 The  Taliban  sought  to  "work  with  the  deep  social  grain  of  rural  con- 
servatism, not  interfering  with  the  power  of  tribal  elders  and  landowners,  as  long  as 
the  people  followed  Taliban  religious  practices."37  Its  inability  to  gain  international 
recognition,  discussed  infra,  lay  in  part  in  the  philosophy  of  its  leader,  Mullah  Mo- 
hammed Omar,  who  departed  from  Afghanistan's  traditional  international  role, 
expressing  indifference  with  respect  to  international  relations  and  foreign  policy 
and  their  necessity  for  Afghanistan.38  Equally  important,  Loyn  observes, 

[a]t  the  core  of  the  new  antimatter  soul  being  formed  for  Afghanistan  was  "anti- 
education",  in  which  boys  were  taught  not  about  culture  or  the  natural  world,  and 


254 


W.  Hays  Parks 

certainly  not  to  think  for  themselves — the  bedrock  of  education  in  the  developed 
world — but  to  believe  that  this  was  all  taken  care  of  for  them  by  Islam. 

The  madrassas  became  factories  turning  out  Taliban  fighters,  many  of  them  war 
orphans  who  knew  no  other  life.  "Talib"  simply  means  "student",  although  the  word 
came  to  mean  specifically  "religious  student",  and  the  madrassa  system  provided  a 
formidable  old-boy  network,  giving  a  sinuous  strength  and  flexibility  to  the  Taliban 
army,  which  otherwise  lacked  a  formal  command  structure?9 

In  the  battles  of  the  mid-  to  late  1990s,  momentum  ebbed  to  and  fro  and,  in 
Afghan  tradition,  tribal  warlords  and  individual  tribes  switched  sides  frequently. 
Personnel  replacements  for  Taliban  lost  in  battle  or  through  defections  to  anti- 
Taliban  forces  were  drawn  from  volunteers  from  tribal  areas  in  Pakistan  and  non- 
Afghan  volunteers.40  Efforts  in  1996  by  the  Pakistani  interior  minister  to  have  the 
Taliban  join  in  consolidated  opposition  to  the  Northern  Alliance  were  rebuffed  by 
Taliban  leader  Mullah  Omar.  As  a  result,  when  the  Taliban  eventually  recaptured 
the  Afghan  capital  of  Kabul  on  September  26,  1996,  "they  had  few  friends,  and 
never  secured  the  international  recognition  they  craved."41 

Taliban  recapture  of  Kabul  did  not  bring  formal  recognition  from  its  primary  fi- 
nancial backers,  Saudi  Arabia  and  Pakistan.  It  did  result  in  a  new  warlord  alliance 
called  the  "Supreme  Council  for  the  Defence  of  the  Motherland"  to  oppose  the 
Taliban.42  The  following  spring  the  Taliban  began  its  advance  north.  Concentra- 
tion of  agriculture,  industry,  mineral  and  gas  resources  in  northern  Afghanistan 
made  a  Taliban  offensive  critical  to  its  consolidation  of  power.43  Political  leaders  in 
Pakistan  and  Saudi  Arabia  agreed  they  would  extend  formal  recognition  to  the 
Taliban  as  the  government  of  Afghanistan  when  and  if  it  controlled  the  entire 
country,  then  advanced  recognition  following  Taliban  seizure  of  the  Northern  Al- 
liance city  of  Mazar-i-Sharif  on  May  24,  1997,  optimistically  but  incorrectly  con- 
cluding control  of  the  entire  country  would  follow  soon  thereafter. 

In  a  set  of  circumstances  reflecting  the  Byzantine  nature  of  the  Pakistani  gov- 
ernment and  despite  the  fact  that  ISID  agency  Chief  of  Staff  Ahmed  Badeeb  ac- 
knowledged that  the  Taliban  "had  no  clue  how  to  run  a  country,"44  at  ISID  urging 
the  Pakistani  foreign  ministry  announced  Pakistan's  recognition  of  the  Taliban  as 
the  government  of  Afghanistan  on  May  25, 1997,  a  decision  Pakistani  Prime  Minis- 
ter Nawaz  Sharif  learned  of  from  a  television  news  announcement.  His  aide  re- 
called Sharif  was  "furious,"  wondering  out  loud  who  had  made  a  decision  that  was 
his  to  make.45 

The  ISID,  heavily  invested  in  the  Taliban  in  part  to  provide  a  safe  haven  for  Paki- 
stan's insurgency  operations  in  Kashmir,46  pressed  Saudi  Arabia  to  join  it  in  recog- 
nition of  the  Taliban.  "Due  to  Pakistani  [ISID]  insistence  and  to  the  lack  of  any 

255 


Combatants 


other  options  so  as  to  fill  the  obvious  vacuum"  in  Afghanistan,  Saudi  Arabia  fol- 
lowed suit  the  next  day.47  The  United  Arab  Emirates  (UAE),  whose  leadership  en- 
joyed special  hunting  privileges  in  Pakistan  and  Taliban-controlled  western 
Afghanistan,  recognized  the  Taliban  two  days  later.48 

These  announcements  were  premature.  Taliban  seizure  of  Mazar-i-Sharif 
lasted  only  hours  following  Pakistan's  recognition  announcement,49  and  became  a 
deathtrap  for  Taliban  forces.  Mazar-i-Sharifs  Uzbek/Shia  population,  joining 
forces  with  the  Northern  Alliance,  killed  three  hundred  Taliban  and  captured  an- 
other thousand.  Taliban  killed  or  captured  included  its  top  ten  leaders  in  the  as- 
sault on  Mazar-i-Sharif.50  Anti-Taliban  forces  increased  in  strength  as  warlords 
switched  sides  in  an  anti-Taliban  offensive  that  killed,  captured,  or  wounded  an- 
other six  thousand  Taliban,  including  250  Pakistani  fighters  killed  and  another 
550  captured.  The  Taliban  swiftly  retreated  toward  Kabul,  en  route  destroying 
crops  and  poisoning  wells,51  relinquishing  any  claim  to  control  of  northern  Af- 
ghanistan. The  civil  war  intensified  as  aid  and  support  to  anti-Taliban  forces  in- 
creased from  Iran,  Turkey,  India,  Russia,  Uzbekistan,  Kazakhstan,  Kyrgyzstan  and 
Tajikistan.52 

Nonetheless,  and  bolstered  by  the  premature  recognition  by  Pakistan,  Saudi 
Arabia  and  the  UAE,  the  Taliban  sought  US  recognition.  The  Clinton  administra- 
tion declined.  Following  a  confrontation  between  pro-  and  anti-Taliban  factions 
within  the  Afghanistan  embassy  in  Washington  in  August  1997,  the  State  Depart- 
ment ordered  the  embassy  closed,  informing  its  representatives  that  "[a]s  far  as  the 
United  States  was  concerned,  Afghanistan's  existence  as  a  government  in  the  inter- 
national system  had  been  suspended."53  No  other  nation  joined  Pakistan,  Saudi 
Arabia  and  the  UAE  in  their  recognition  of  the  Taliban  as  the  government  of  Af- 
ghanistan. Taliban  efforts  to  gain  UN  recognition  were  equally  unsuccessful,54  in 
large  measure  due  to  its  ignorance  of  "U.N.  procedures  and  even  the  U.N.  Charter" 
and  its  own  counterproductive  actions  against  UN  agencies  attempting  to  provide 
humanitarian  aid  in  Afghanistan,  such  as  the  High  Commissioner  for  Refugees  and 
the  World  Food  Program.  An  increase  in  funding  by  Pakistan  and  Saudi  Arabia  for 
the  Taliban  and  drafts  of  young  jihadists  from  tribal  areas  in  Pakistan  enabled  the 
Taliban  to  reconstitute  its  forces  and  in  1998  commence  another  attack  into  north- 
ern Afghanistan,  including  a  renewed  effort  to  capture  Mazar-i-Sharif.  While  mili- 
tarily successful,  international  antipathy  toward  the  Taliban  increased  owing  to 
Taliban  actions  against  UN  officials  and  non-government  organizations;  massa- 
cres of  Uzbek,  Tajik  and  Hazaras  civilians  in  Mazar-i-Sharif;  murder  of  captured 
opposing-force  fighters;55  and  the  murder  of  eleven  Iranian  diplomats  taken  from 
the  Iranian  consulate  in  Mazar-i-Sharif.56 


256 


W.  Hays  Parks 

The  Taliban  had  become  an  international  pariah.  Its  status  was  exacerbated  by 
the  al-Qaeda  attack  on  US  embassies  in  Nairobi,  Kenya  and  Dar  es  Salaam,  Tanza- 
nia, on  August  7,  1998,  killing  213  civilians  in  the  former  and  eleven  in  the  latter, 
and  wounding  more  than  four  thousand  civilians  in  the  two  attacks.57  The  US  re- 
sponse included  a  cruise-missile  attack  on  the  suspected  al-Qaeda  training  camp  at 
Zawhar  Kili  on  August  20, 199858  and  an  end  of  any  further  argument  of  pragma- 
tism toward  the  Taliban  within  the  State  Department.59  International  outrage  in- 
creased with  the  Taliban's  September  18,  1998  destruction  of  the  two  thousand- 
year-old  Buddha  statues  in  Bamiyan.60  The  murder  of  the  Iranian  diplomats  led  to 
Iran  moving  a  military  force  of  two  hundred  thousand  to  its  border  with  Afghani- 
stan; a  meeting  between  Taliban  leader  Mullah  Omar  and  UN  envoy  Lakhdar 
Brahimi  in  Kandahar  on  October  14,  1998;  a  strong  UN  Security  Council  resolu- 
tion threatening  and  eventually  imposing  international  sanctions  against  the 
Taliban;61  and  Saudi  Arabia's  withdrawal  of  its  diplomatic  representation  in  Kabul 
and  its  termination  of  official  funding  to  the  Taliban  because  of  its  protection  of  al- 
Qaeda  leader  Usama  bin  Laden.62  Additional  UN  Security  Council  resolutions 
condemning  the  Taliban  and  imposing  sanctions  followed  through  1999, 2000  and 
into  2001  prior  to  the  September  1 1  al-Qaeda  attack  on  the  United  States  as  the  Se- 
curity Council  "remain  [ed]  seized"  with  the  matter.63  By  2000,  Taliban  support  for 
Islamic  fundamentalist  groups  from  Central  Asia,  Iran,  Kashmir,  China  and  Paki- 
stan had  led  to  its  further  international  isolation,  increased  support  to  anti-Taliban 
forces64  and  increasing  signs  of  the  Taliban's  weakening  grip  on  territory  within 
Afghanistan.65  Reports  by  the  United  Nations  Secretary- General  in  April  and  July 
2001  requested  by  the  General  Assembly  and  Security  Council,  respectively,  are  re- 
vealing in  their  conclusions  as  to  the  Taliban's  failures  to  act  in  any  way  as  a  gov- 
erning authority  within  Afghanistan.66 

Throughout  the  period  in  which  the  UN  Security  Council  and  the  Secretary- 
General  weighed  or  took  actions  against  the  Taliban,  at  no  time  did  either  refer  to 
or  suggest  recognition  of  the  Taliban  as  the  government  of  Afghanistan.67 

The  al-Qaeda  attacks  in  the  United  States  on  September  11,  2001  brought  a 
rapid  military  response  by  the  United  States,  acting  under  the  authority  of  UN  Se- 
curity Council  Resolution  1368,68  and  concurrent  political  reactions  by  the  three 
nations  previously  aligned  with  the  Taliban.  The  United  Arab  Emirates  withdrew 
its  recognition  of  the  Taliban  on  September  22;  Saudi  Arabia,  three  days  later;  and 
Pakistan  on  November  22. 

As  previously  noted,  US  offensive  ground  force  operations  against  the  Taliban 
and  al-Qaeda  formally  commenced  on  the  evening  of  October  19-20,  2001,  with 
insertion  of  two  US  Army  Special  Forces  detachments.69  In  less  than  two  months, 
Taliban  and  al-Qaeda  resistance  had  collapsed.  Usama  bin  Laden  and  his  al-Qaeda 

257 


Combatants 


fled  into  Pakistan.70  Taliban  leader  Mullah  Omar  survived,  and  fighting  would 
continue,  but  the  Taliban  as  a  viable  entity  had  disintegrated.71 

Was  the  Taliban  Entitled  Legally  to  Recognition  as  the 
Government  of  Afghanistan? 

The  actions  of  Pakistan,  Saudi  Arabia  and  the  United  Arab  Emirates  are  illustrative 
of  political  recognition  of  a  nation  or  a  new  government.  But  recognition  by  three 
nations  out  of  the  185  members  of  the  United  Nations  does  not  warrant  the  con- 
clusion that  the  Taliban  constituted  the  de  facto  much  less  the  dejure  government 
of  Afghanistan  for  the  following  reasons: 

•  The  Taliban  was  a  faction  in  a  civil  war  in  a  failed  State,  that  is,  a  State  in 
which  no  central  authority  existed  capable  of  carrying  out  the  duties  and 
responsibilities  of  a  national  government  to  its  citizens. 

•  As  established  in  the  preceding  pages,  the  Taliban 

•  Had  no  organized,  uniformed  military,  no  strategic  military  plans,  and 
no  formal  command  and  control  structure  characteristic  of  a  regular  military; 

•  Consisted  of  tribal  forces  with  little  to  no  formal  military  instruction;72 

•  Was  composed  of  individuals  loosely  organized  along  tribal  lines  who 
rotated  between  civilian  (tribal  or  family)  obligations  and  serving  as  fighters 
on  a  daily  or  seasonal  basis;  and 

•  Lacked  the  capacity  to  fulfill  traditional  responsibilities  of  a  government, 
such  as  providing  essential  services  (security,  welfare  and  representation)  to 
the  people  of  Afghanistan. 

•  The  United  Nations,  the  European  Union  and  181  of  the  185  nations 
declined  to  recognize  the  Taliban  as  the  government  of  Afghanistan. 

•  The  Afghanistan  seat  in  the  United  Nations  remained  reserved  for  the 
government  of  Burhanuddin  Rabbani  which  for  all  intents  and  purposes  ceased  to 
exist  in  1994. 

•  The  civil  war  did  not  end  with  the  Taliban  as  a  clear  victor  occupying,  much 
less  controlling,  Afghanistan.  At  the  time  of  commencement  of  US  and  coalition 
operations  on  October  20,  2001,  the  civil  war  continued,  and  Taliban  power  had 
eroded  significantly. 

•  As  the  2001  Secretary-General's  report  observed,  the  Taliban  was  unable  to 
consolidate  its  military  successes  outside  the  predominately  Pashtun  southern 
Afghanistan  region  from  which  it  originated. 


258 


W.  Hays  Parks 

•  The  Taliban  refused  to  acknowledge  Afghanistan's  pre-existing  international 
obligations,  such  as  those  of  being  a  member  of  the  United  Nations,  or  through  its 
actions  as  a  State  party  to  the  1949  Geneva  Conventions.73 

International  law  requirements  for  existence  as  a  State  are  historic: 

First,  there  must  be  a  people. . . . 

Second,  there  must  be  a  fixed  territory  which  the  inhabitants  occupy. . . . 

Third,  there  must  be  an  organized  government  exercising  control  over,  and 
endeavoring  to  maintain  justice  within,  the  territory. 

Fourthly,  there  must  be  capacity  to  enter  into  relations  with  the  outside  world. 

Fifthly,  the  inhabitants  of  the  territory  must  have  attained  a  degree  of  civilization  such 
as  to  enable  them  to  observe  with  respect  to  the  outside  world  those  principles  of  law 
which  are  deemed  to  govern  the  members  of  the  international  society  in  their  relations 
with  each  other.74 

The  State  of  Afghanistan  previously  joined  and  was  accepted  into  the  commu- 
nity of  nations  as  a  member  of  the  United  Nations.  Its  ratification  of  the  1949 
Geneva  Conventions  in  1956  was  accepted  by  Switzerland,  the  depositary.  No  State 
objected  to  its  ratification  of  the  1949  Geneva  Conventions.  Hence  it  may  be  pre- 
sumed that  each  State  regarded  Afghanistan  as  having  met  statehood  criteria  one 
and  two.  Were  all  other  questions  answered  in  the  affirmative,  a  question  would  re- 
main as  to  whether  in  its  time  as  a  failed  State  and  with  the  ascendancy  of  the 
Taliban  it  continued  to  meet  the  third,  fourth  and  fifth  criteria.  The  third  criterion 
does  not  say  "exercise  control  over  a  substantial  portion  of  a  nation's  territory,  or 
suggest  a  percentage  of  territorial  control  as  threshold  criteria,  but  the  territory  as  a 
whole.  As  to  "maintaining  justice  within  the  territory,"  Professors  Goldman  and 
Tittemore  acknowledge  "the  Taliban  exercised  few,  if  any,  of  the  traditional  activi- 
ties of  government."75  This  cannot  be  dismissed  entirely  as  a  characteristic  of 
Afghan  culture;  more  likely  it  is  affirmation  of  the  fact  that  the  resources  for  the 
Taliban  to  govern  were  unavailable  because  they  had  been  diverted  to  fighting  the 
continuing  civil  war.  In  turning  inward  under  the  leadership  of  Mullah  Omar,  the 
Taliban  defaulted  on  the  fourth.  In  the  wholesale  murder  of  foreign  diplomats, 
representatives  of  non-governmental  organizations,  its  civilians  because  of  differ- 
ent religious  beliefs,  and  captured  fighters — violations  of  human  rights  law  and  the 


259 


Combatants 


law  of  war — there  is  no  evidence  the  Taliban  met  the  fifth  criterion  essential  to  its 
qualification  as  the  government  of  Afghanistan.76 

Assuming  for  sake  of  argument  the  five  criteria  could  be  met  for  the  failed  State 
of  Afghanistan  to  restore  its  place  among  its  peers,  there  remains  the  question  of 
whether  the  Taliban  itself  became  the  rightful  government  of  Afghanistan  at  any 
time  prior  to  its  defeat  and  collapse  in  December  2001.  Changes  internal  to  a  na- 
tion are  regarded  as  matters  of  domestic  concern.77  That  said, 

[ijnasmuch,  however,  as  the  government  of  a  State  is  the  instrument  through  which  it 
has  official  contact  with  the  outside  world  and  undertakes  to  respond  to  official 
obligations,  a  change  of  government  and  the  methods  by  which  it  is  wrought  are 
matters  of  concern  to  foreign  countries.  They  are  concerned  primarily  with  a  question 
of  fact — whether  the  regime  seeking  recognition  is  in  actual  control  of  the  reins  of 
government.  No  difficulty  presents  itself  when  a  change  is  wrought  through  normal 
processes  and  the  result  is  accepted  as  a  mere  incident  in  the  life  or  growth  of  the  State 
concerned.  The  situation  may  be  obscure,  however,  when  a  contest  for  governmental 
control  is  waged  by  force  of  arms  or  by  other  processes  not  contemplated  by  the  local 
law;  the  completeness  of  the  success  of  a  contestant  may  be  fairly  open  to  doubt  for 
a  protracted  period,  and  even  after  its  adherents  assume  to  exercise  the  functions  of 
a  government.  In  such  case  foreign  States  may,  and  oftentimes  do,  withhold 
recognition  until  they  are  themselves  assured  where  the  victory  really  lies.  The 
sufficiency  of  such  assurance  depends  obviously  upon  the  circumstances  of  the 
particular  case;  and  it  may  follow  close  upon  the  heels  of  a  coup  d'etat.  The  matter  is 
unrelated  to  the  mode  whereby  the  success  of  a  regime  is  achieved,  except  in  so  far  as 
recourse  to  a  particular  method  may  breed  doubt  as  to  the  security  or  permanence  of 
the  control  that  has  been  won.78 

The  decision  as  to  whether  or  not  to  recognize  a  State,  or  a  new  government  in  a 
State,  resides  in  governments  of  other  sovereign  nations,  and,  within  a  govern- 
ment, with  the  executive  branch  of  each.79 

By  analogy,  the  law  of  war  provides  a  way  in  which  to  determine  whether  the 
Taliban  had  gained  de  facto  or  dejure  status.  State  A  invades  State  B.  In  doing  so, 
its  military  forces  physically  seize  a  portion  of  State  B's  territory.  Under  the  law  of 
belligerent  occupation  State  A  becomes  an  occupying  power  only  when  the  terri- 
tory State  A's  forces  physically  occupy  "is  actually  placed  under  the  authority  of 
the  hostile  army."80  Further,  the  occupation  "extends  only  to  the  territory  where 
such  authority  has  been  established  and  can  be  exercised."81  A  claimant  must  be 
able  to  exercise  effective  control;  that  is,  an  occupying  power  must  be  in  a  posi- 
tion to  enforce  the  authority  he  is  asserting  over  the  territory  and  meet  the  obliga- 
tions of  an  occupying  power,  which  includes  governing  and  providing  various 
services  (such  as  security  and  welfare)  to  the  civilian  population  necessary  to  meet 


260 


W.  Hays  Parks 

its  day-to-day  requirements.82  Assuming  this  analogy  is  reasonable,  the  history  of 
the  civil  war  between  Taliban  and  anti-Taliban  factions  from  1994  to  2001  never 
resulted  in  a  situation  in  which  the  Taliban  was  able  to  enforce  the  authority  it 
may  have  asserted  over  the  territory  it  physically  occupied,  much  less  all  of  Af- 
ghanistan. The  Secretary-General's  July  13,  2001  report  that  "[a]ll  regions  of  the 
country,  with  the  exception  of  the  southern  [Pashtun]  region,  now  include  active 
conflict  zones"83  confirms  the  conclusion  that  while  the  Taliban  may  have  en- 
joyed a  physical  presence  in  a  large  portion  of  Afghanistan,  it  was  unable  to  con- 
solidate its  military  gains  and  exercise  effective  control  over  these  areas,  much  less 
establish  the  infrastructure  to  govern  them.  These  are  critical  legal  distinctions 
that  media  reports  failed  to  make. 

The  facts  on  the  ground  and  international  law  do  not  support  a  conclusion  that 
the  Taliban  was  the  de  facto,  much  less  dejure>  government  of  Afghanistan  at  any 
time  from  its  emergence  in  1994  to  October  20,  2001,  when  US  and  coalition  mili- 
tary operations  commenced  against  al-Qaeda  and  the  Taliban.84 

Combatant  and  Prisoner  of  War  Status  and  the  Taliban  and  Al-Qaeda 

Accepting  arguendo  the  US  position  that  its  intervention  in  Afghanistan  was  an  in- 
ternational armed  conflict,  entitlement  to  the  combatant's  privilege  and,  therefore, 
prisoner  of  war  status  upon  capture  is  determined  by  provisions  contained  in  Arti- 
cle 4  of  the  Geneva  Convention  (III)  Relative  to  the  Treatment  of  Prisoners  of  War 
of  August  12, 1949  (hereinafter  GPW).85  Relevant  GPW  provisions  provide  entitle- 
ment to  humane  treatment  to  captured  individuals  entitled  to  the  combatant's 
privilege. 

Combatants  are  members  of  the  established  armed  forces  of  a  government  who 
have  a  legal  right  to  engage  in  combat  operations.  Combatants  enjoy  "combatant 
immunity"  under  international  law,  protecting  them  from  prosecution  for  death 
or  injury  to  persons  or  damage  or  destruction  of  property  resulting  from  combat- 
ant acts  that  otherwise  comply  with  the  law  of  war  in  an  armed  conflict.86  A 
combatant 

•  Has  the  right  to  carry  out  lawful  attacks  on  enemy  military  personnel  and 
military  objectives; 

•  Is  at  risk  of  attack  by  enemy  military  forces  at  any  time,  wherever  located, 
regardless  of  the  duties  or  activities  in  which  he  or  she  is  engaged; 

•  Bears  no  criminal  responsibility  (a)  for  killing  or  injuring  (i)  enemy  military 
personnel  or  (ii)  civilians  taking  a  direct  part  in  hostilities,  or  (b)  for  causing 
damage  or  destruction  to  property  incidental  to  lawful  military  operati6ns, 


261 


Combatants 


provided  his  or  her  acts,  including  the  means  employed  to  commit  those  acts,  have 
been  in  compliance  with  the  law  of  war;  and 

•    If  captured: 

Is  entitled  to  prisoner  of  war  status, 

May  be  detained  indefinitely  until  cessation  of  active  hostilities, 

Is  entitled  to  humane  treatment, 

May  be  tried  for  violations  of  the  law  of  war,  and 

May  only  be  punished  for  violations  of  the  law  of  war  as  a  result  of  a 
fair  and  regular  trial. 

Limitations  on  entitlement  to  the  combatant's  privilege  are  historic  and  an  es- 
sential component  of  the  equally  historic  law  of  war  principle  of  discrimination.  Al- 
though the  origins  of  the  modern  law  of  war  can  be  traced  to  classical  Greek  and 
Roman  times,  the  Middle  Ages  provided  its  greatest  development  prior  to  the  mid- 
nineteenth  century.  Today's  law  of  war  began  as  an  amalgamation  of  the  jus 
militaire,  recognized  military  practice  contained  in  rules  of  chivalry,  and  canon  law 
known  as  the  just  war  tradition.87  Both  jws  militaire  and  the  just  war  tradition  in- 
cluded a  requirement  for  "public  war,"  that  is,  war  authorized  by  right  (that  is, 
competent)  authority.  In  the  jus  militaire,  "public  war"  was  the  "antithesis  of  per- 
fidy and  cowardly  assassinations,  actions  repugnant  to  the  conception  of  chivalry 
and  the  membership  of  the  various  knightly  orders  in  which  knights  belonged."88 
Individuals  engaging  in  unauthorized  acts  of  war  were  acting  outside  "faith  and  the 
law  of  nations."  They  were  regarded  as  "marauders  and  freebooters,"  treated  as  war 
criminals  if  captured,  and  usually  summarily  executed.89 

Paralleling  right  authority  was  the  principle  of  discrimination/noncombatant 
(civilian)  immunity.  In  the  conduct  of  military  operations,  commanders  were  ob- 
ligated to  exercise  reasonable  care  to  protect  innocent  civilians  from  the  harmful 
effects  of  combat  operations.  It  also  obligated  combatants  to  distinguish  themselves 
from  the  civilian  population,  and  obligated  civilians  not  to  engage  in  combatant  acts. 

Through  the  near  century  and  a  half  of  development  of  the  modern  law  of  war, 
governments  have  retained  exclusive  authority  to  wage  war  for  practical,  political 
and  humanitarian  reasons.  First  is  the  responsibility  of  a  government  to  protect  its 
citizens.  Second,  a  desire  for  stability  in  international  relations  necessitates  a  prohi- 
bition of  unilateral  acts  by  a  civilian  or  civilians  that  may  lead  to  war  between  na- 
tions.90 Third,  the  prohibition  on  civilians  engaging  in  combatant  acts  serves  to 
implement  and  enforce  the  law  of  war  principle  of discrimination.91  The  private  cit- 
izen who  engages  in  battle  is  not  entitled  to  the  combatant's  privilege  and  forfeits 
his  or  her  protection  as  a  civilian  from  direct  attack  for  such  time  as  he  or  she  takes 


262 


W.  Hays  Parks 

a  direct  part  in  hostilities.92  If  captured,  he  or  she  is  not  entitled  to  prisoner  of  war 
status  and  may  be  prosecuted  for  his  or  her  actions. 

Codification  of  the  modern  law  of  war  and  these  distinctions  originated  in  the 
midst  of  the  US  Civil  War  (1861-65).  Dr.  Francis  Lieber,  a  Columbia  College  law 
professor,  offered  to  draft  a  document  for  the  Union  Army  delineating  in  practical 
terms  existing  law  of  war  rules.  President  Lincoln  accepted  Lieber's  offer.  Signed  by 
President  Lincoln  on  April  24,  1863,  as  US  General  Orders  No.  100,  Lieber's  In- 
structions for  the  Government  of  Armies  of  the  United  States  in  the  Field  became  the 
primary  source  for  treaty  law  developed  over  the  next  century. 

Of  direct  relevance  to  the  present  discussion  is  a  less-known  product  requested 
of  Professor  Lieber.  On  August  6, 1862,  Henry  Wager  Halleck,  General-in-Chief  of 
the  Union  armies,  wrote  to  Lieber  seeking  his  advice  and  assistance  in  addressing 
the  issue  of  private  citizens  engaging  in  unauthorized  acts  of  war  and  Union  law  of 
war  obligations  toward  captured  Confederate  guerrillas.  General  Halleck  viewed 
partisans  and  guerrillas  as  synonymous.  Professor  Lieber  made  a  distinction  be- 
tween the  two  in  his  essay  reply,  "Guerrilla  Parties  Considered  with  Reference  to 
the  Laws  and  Usages  of  War."  Lieber  argued  that  partisans  enjoy  a  formal  associa- 
tion with  a  government  and  its  military  forces  (and  entitlement  to  prisoner  of  war 
status),  while  guerrillas  were 

self- constituted  sets  of  armed  men,  in  times  of  war,  who  form  no  integrant  part  of  the 
organized  army,  do  not  stand  on  the  regular  pay-roll  of  the  army,  or  are  not  paid  at  all, 
take  up  arms  and  lay  them  down  at  intervals,  and  carry  on  petty  war  (guerrilla)  chiefly 
by  raids,  extortion,  destruction,  and  massacre,  and  who  cannot  encumber  themselves 
with  many  prisoners,  and  will  therefore  generally  give  no  quarter.93 

While  Lieber  does  not  identify  opposing  forces  that  might  have  been  illustrative 
of  each  category,  the  Virginia  cavalry  unit  commanded  by  Confederate  Colonel 
John  S.  Mosby94  is  regarded  as  meeting  Lieber's  category  of  partisans,  and  therefore 
lawful  combatants,  while  William  C.  Quantrill's  private  group  of  raiders  in 
Missouri95  were  guerrillas  (as  he  used  the  term  in  his  analysis),  and,  as  such,  not  en- 
titled to  the  combatant's  privilege  or  prisoner  of  war  status.96 

Lieber  maintained  this  distinction  in  General  Orders  No.  100.  Article  57  states, 
"[s]o  soon  as  a  man  is  armed  by  a  sovereign  government  and  takes  the  soldier's  oath 
of  fidelity,  he  is  a  belligerent;  his  killing,  wounding,  or  other  warlike  acts  are  not  in- 
dividual crimes  or  offenses  . . .,"  while  acknowledging  in  Article  59  that  "[a]  pris- 
oner of  war  remains  answerable  for  his  crimes  committed  against  the  captor's  army 
or  people "  Article  81  of  General  Orders  No.  100  states: 


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Partisans  are  soldiers  armed  and  wearing  the  uniform  of  their  army,  but  belonging  to  a 
corps  which  acts  detached  from  the  main  body  for  the  purpose  of  making  inroads  into 
the  territory  occupied  by  the  enemy.  If  captured,  they  are  entitled  to  all  the  privileges  of 
the  prisoner  of  war. 

In  contrast,  Article  82  declares: 

Men,  or  squads  of  men,  who  commit  hostilities,  whether  by  fighting,  or  inroads  for 
destruction  or  plunder,  or  by  raids  of  any  kind,  without  commission,  without  being 
part  and  portion  of  the  organized  hostile  army,  and  without  sharing  continuously  in 
the  war,  but  who  do  so  with  intermitting  returns  to  their  homes  and  avocations,  or 
with  the  occasional  assumption  of  the  semblance  of  peaceful  pursuits,  divesting 
themselves  of  the  character  or  appearance  of  soldiers — such  men,  or  squads  of  men, 
are  not  public  enemies,  and,  therefore,  if  captured,  are  not  entitled  to  the  privileges  of 
prisoners  of  war,  but  shall  be  treated  summarily  as  highway  robbers  or  pirates. 

Franc-tireur  actions  in  the  Franco-Prussian  War  and  the  debate  over  military 
operations  by  Boer  farmers  dressed  in  civilian  clothing  in  the  Anglo-Boer  War 
(1899-1902)  brought  the  issue  to  international  attention  at  the  First  International 
Peace  Conference,  held  in  The  Hague  in  1899. 

Hague  Convention  II  with  Respect  to  the  Laws  and  Customs  of  War  on  Land 
was  among  the  treaties  adopted  by  the  1899  Hague  Peace  Conference.  Article  3  of 
its  Annexed  Regulations  Respecting  the  Laws  and  Customs  of  War  on  Land  states: 
"The  armed  forces  of  the  belligerent  parties  may  consist  of  combatants  and  non- 
combatants."97  In  case  of  capture  by  the  enemy  both  have  a  right  to  be  treated  as 
prisoners  of  war. 

Following  Professor  Lieber's  lead,  recognition  as  armed  forces  was  provided  not 
only  to  the  regular  forces  of  a  belligerent  but  also  to  other  forces  in  Article  1: 

The  laws,  rights,  and  duties  of  war  apply  not  only  to  armies,  but  also  to  militia  and 
volunteer  corps  fulfilling  the  following  conditions: 

1 .  To  be  commanded  by  a  person  responsible  for  his  subordinates; 

2.  To  have  a  fixed  distinctive  emblem  recognizable  at  a  distance; 

3.  To  carry  arms  openly;  and 

4.  To  conduct  their  operations  in  accordance  with  the  laws  and  customs  of  war. 


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W.  Hays  Parks 

In  countries  where  militia  or  volunteer  corps  constitute  the  army,  or  form  a  part  of  it, 
they  are  included  under  the  denomination  "army." 

Entitlement  to  lawful  combatant  and  prisoner  of  war  status  for  organizations 
other  than  the  regular  forces  of  a  nation  was  provisional.  It  was  dependent  upon 
these  forces  acting  under  government  authority  and  complying  strictly  with  the 
four  conditions  listed.  Failure  of  compliance  resulted  in  denial  of  the  combatant's 
privilege.  Individuals  acting  unilaterally  outside  an  organization  were  not  entitled 
to  the  combatant's  privilege. 

Development  of  railroads  in  the  late  nineteenth  century  facilitated  rapid  de- 
ployment of  military  forces,  prompting  fear  by  smaller  nations  such  as  Belgium 
and  the  Netherlands  of  threats  posed  by  stronger  powers  such  as  France  and  Prus- 
sia. Article  2  of  the  Annex  to  the  1899  Hague  II  provided  conditional  combatant 
status  to  what  is  referred  to  as  a  levee  en  masse,  as  follows: 

The  population  of  a  territory  which  has  not  been  occupied  who,  on  the  enemy's 
approach,  spontaneously  take  up  arms  to  resist  the  invading  troops  without  having 
time  to  organize  themselves  in  accordance  with  Article  1,  shall  be  regarded  as 
belligerent,  if  they  respect  the  laws  and  customs  of  war. 

The  Martens  Clause 

The  participating  nations  appreciated  that  Hague  Convention  II  was  a  first  effort  at 
international  codification  of  the  law  of  war  for  ground  forces.  Of  particular  impor- 
tance to  the  topic  of  this  chapter  is  language  contained  in  the  main  treaty: 

It  has  not  .  .  .  been  possible  to  agree  forthwith  on  provisions  embracing  all  the 
circumstances  which  occur  in  practice.  On  the  other  hand,  it  could  not  be  intended 
by  the  High  Contracting  Parties  that  the  cases  not  provided  for  should,  for  want  of  a 
written  provision,  be  left  to  the  arbitrary  judgment  of  the  military  commanders. 
Until  a  more  complete  code  of  the  laws  of  war  is  issued,  the  High  Contracting  Parties 
think  it  right  to  declare  that  in  cases  not  included  in  the  Regulations  adopted  by 
them,  populations  and  belligerents  remain  under  the  protection  and  empire  of  the 
principles  of  international  law,  as  they  result  from  the  usages  established  between 
civilized  nations,  from  the  laws  of  humanity,  and  the  requirements  of  public 
conscience. 

This  provision,  referred  to  as  the  Martens  Clause,98  was  the  result  of  a  debate 
over  the  status  of  private  citizens  who  took  up  arms  following  enemy  occupation. 
Delegations  representing  major  European  military  powers  argued  that  such  indi- 
viduals should  be  treated  as  unlawful  combatants  subject  to  summary  execution  if 
captured.  Smaller  European  nations  argued  that  they  should  be  regarded  as  lawful 


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Combatants 


combatants  as  each  citizen  has  a  duty  to  his  nation  to  resist  enemy  presence.  The 
argument  essentially  was  one  for  levee  en  masse  "plus, "  a  continuous  resistance  to 
enemy  occupation.  In  the  end,  private  citizens  who  took  up  arms  in  resistance  to 
enemy  occupation  remained  unprivileged  combatants."  This  prompted  incorpo- 
ration of  the  Martens  Clause.100 

These  provisions  were  repeated  verbatim  or  without  substantive  change  in 
Hague  Convention  IV  Respecting  the  Laws  and  Customs  of  War  on  Land  adopted 
by  the  Second  International  Peace  Conference  in  The  Hague,  on  October  18, 
1907.101 

A  humanitarian  basis  existed  for  the  decision  taken  by  delegations  to  the  two 
Hague  Peace  Conferences.  As  one  international  lawyer  commented: 

The  separation  of  armies  and  peaceful  inhabitants  into  two  distinct  classes  is  perhaps 
the  greatest  triumph  of  International  Law.  Its  effect  in  mitigating  the  evils  of  war  has 

been  incalculable But  if  populations  have  a  war  right  as  against  armies,  armies  have 

a  strict  right  against  them.  They  must  not  meddle  with  fighting.  The  citizen  must  be  a 
citizen  and  not  a  soldier.102 

The  law  of  war  principle  of  discrimination  prohibits  military  forces  from  engag- 
ing in  direct  attack  of  innocent  enemy  civilians  and  the  enemy  civilian  population 
in  general.  In  addition  to  obligating  military  forces  to  distinguish  themselves  phys- 
ically and  in  appearance  from  the  civilian  population,  the  principle  of  discrimina- 
tion obligates  civilians  to  refrain  from  engaging  in  combatant  acts,  as  such  actions 
may  place  the  general  civilian  population  at  risk.  That  said,  the  Martens  Clause  ac- 
knowledged the  existence  of  unspecified  but  minimum  standards  of  protection 
and  humane  treatment  for  unprivileged  combatants  upon  capture.  The  Bush  ad- 
ministration's express  rejection  of  Common  Article  3  application  in  US  operations 
in  Afghanistan  neglected  to  acknowledge  that  the  United  States,  as  a  State  party  to 
the  1907  Hague  Convention  IV,  was  bound  by  the  Martens  Clause  in  the  1907 
Hague  Convention  IV.  The  Bush  administration's  focus  solely  on  the  last  four  (of 
six)  criteria  in  Article  4A,  paragraph  2,  GPW,  discussed  infra,  also  neglected  the 
possible  legal  significance  of  the  Martens  Clause. 

World  War  II 

The  1939  invasion  of  major  portions  of  Europe  by  Germany  that  began  with  the 
German  invasion  of  Poland  on  September  2,  1939,  and  of  Asia  by  Japan  following 
its  attack  on  Pearl  Harbor  on  December  7,  1941,  eventually  brought  organized  re- 
sistance against  Axis  occupation  on  a  scale  previously  unseen.  The  resistance 
movement  within  the  Soviet  Union  was  massive  and  well  organized  by  the  Soviet 


266 


W.  Hays  Parks 

government.103  The  British  Special  Operations  Executive  (SOE)  and  US  Office  of 
Strategic  Services  (OSS)  provided  organization,  training,  equipment  and  other 
support  to  indigenous  resistance  movements  in  twenty  nations  under  Axis  con- 
trol.104 Resistance  to  enemy  occupation  argued  for  in  1899  by  Belgium  and  other 
smaller  nations,  all  victims  of  German  or  Japanese  occupation  in  World  War  II,  be- 
came reality.  The  World  War  II  resistance  experience  prompted  revisitation  of  the 
1899  debate  regarding  law  of  war  recognition  of  a  levee  en  masse  "plus"  and  a  major 
change  at  the  1949  Geneva  Diplomatic  Conference  in  entitlement  to  combatant 
and  prisoner  of  war  status. 

1949  Geneva  Diplomatic  Conference 

The  1949  Geneva  Diplomatic  Conference  met  in  1949,  completing  (from  drafts) 
and  adopting  four  conventions: 

•  Geneva  Convention  (I)  for  the  Amelioration  of  the  Condition  of  the 
Wounded  and  Sick  in  Armed  Forces  in  the  Field  of  August  12,  1949;105 

•  Geneva  Convention  (II)  for  the  Amelioration  of  the  Condition  of 
Wounded,  Sick  and  Shipwrecked  Members  of  Armed  Forces  at  Sea;106 

•  Geneva  Convention  (III)  Relative  to  the  Treatment  of  Prisoners  of  War;107 
and 

•  Geneva  Convention  (IV)  Relative  to  the  Protection  of  Civilian  Persons  in 
Time  of  War.108 

The  Geneva  Conventions  are  specific  and  exclusive  in  providing  entitlement  to 
protection.  Thus  the  first  convention  provides  protection  for  military  wounded 
and  sick  and  medical  units,  personnel,  and  transport,  while  the  second  convention 
protects  military  wounded,  sick  and  shipwrecked  and  their  associated  facilities, 
units,  and  transport.  Legal  obligations  with  respect  to  protection  of  and  care  for  ci- 
vilian sick  or  wounded,  civilian  medical  facilities,  and  civilian  medical  transport 
are  not  included.109 

Similarly,  Article  4  of  the  GPW  is  specific  in  identifying  and  limiting  individu- 
als entitled  to  prisoner  of  war  status,  while  the  civilians  convention  is  equally  spe- 
cific in  identifying  the  circumstances  in  which  civilians  in  enemy  hands  are 
entitled  to  protection.  The  prisoner  of  war  and  civilians  conventions  did  not  pro- 
vide all-encompassing,  seamless  entitlement  to  protection,  but  are  quite  specific 
in  their  respective  applications  to  particular  individuals. 

With  respect  to  private  civilians  engaged  in  combat  actions,  the  prisoner  of  war 
convention  is  directly  relevant  to  the  topic  at  hand. 

The  criteria  for  prisoner  of  war  entitlement  were  reconsidered  in  light  of  the 
World  War  II  experience  with  State-sponsored  organized  resistance  movements. 

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Combatants 


Paragraph  1  of  Article  4A  of  the  prisoner  of  war  convention  reconfirms  entitlement 
to  prisoner  of  war  status  for  members  of  the  regular  armed  forces  and  militias  or 
volunteer  corps  of  a  government.110  Paragraph  2  amended  the  criteria  for  combat- 
ant and  prisoner  of  war  status  for  groups  not  falling  within  paragraph  1: 

Members  of  other  militias  and  members  of  other  volunteer  corps,  including  those  of 
organized  resistance  movements,  belonging  to  a  party  to  the  conflict  and  operating  in  or 
outside  their  own  territory,  even  if  this  territory  is  occupied,  provided  that  such  militias 
or  volunteer  corps,  including  such  organized  resistance  movements,  fulfill  the 
following  conditions: 

(a)  that  of  being  commanded  by  a  person  responsible  for  his  subordinates; 

(b)  that  of  having  a  fixed  distinctive  sign  recognizable  at  a  distance; 

(c)  that  of  carrying  arms  openly; 

(d)  that  of  conducting  their  operations  in  accordance  with  the  laws  and  customs  of 

war.111 

The  International  Committee  of  the  Red  Cross's  (ICRC)  Jean  S.  Pictet  acknowl- 
edges that  recognition  of  entitlement  to  combatant  and  prisoner  of  war  status  for 
State-sponsored  resistance  groups  in  enemy-occupied  territory  "was  an  important 
innovation  which  grew  out  of  the . . .  Second  World  War."1 12  Fully  cognizant  of  the 
World  War  II  resistance  experience,  government  delegations  to  the  1949  diplo- 
matic conference  declined  to  expand  protection  to  all  private  armed  groups.  The 
historic  criteria  of  right  authority  remained  fundamental  to  entitlement  to  combat- 
ant and  prisoner  of  war  status. 

A  common  mistake  by  lay  persons,  non-international  law  lawyers,  some  inter- 
national law  lawyers  and,  in  the  case  at  hand,  by  senior  legal  advisers  and 
policymakers  in  the  Bush  administration  is  to  recite  the  four  criteria  in  (a)  through 
(d)  of  Article  4A(2)  as  the  criteria  for  any  armed  group  to  be  eligible  for  combatant 
and  prisoner  of  war  status.  This  is  a  fundamental  misunderstanding  of  the  law  of 
war  and,  in  particular,  of  Article  4A(2),  GPW,  and  the  rationale  and  history  behind 
it.  Extension  of  combatant  and  prisoner  of  war  status  in  Article  4A(2)  is  intention- 
ally and  expressly  narrower.  Combining  Articles  2  and  4A(2),  there  are  seven  crite- 
ria, all  of  which  must  be  met: 

First,  there  must  be  an  international  armed  conflict,  that  is,  an  armed  conflict 
between  two  or  more  nations.113 


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W.  Hays  Parks 

Second,  the  individual  who  falls  into  enemy  hands  after  engagement  in  combat- 
ant activities  must  be  a  member  of  an  organized  resistance  movement,  that  is,  he  or 
she  cannot  be  acting  unilaterally  or  as  a  member  of  a  levee  en  masse  in  which  private 
citizens  respond  spontaneously.114 

Third,  the  organized  resistance  movement  to  which  the  individual  belongs  must 
be  operating  under  the  authority  and  support  of  a  government  that  is  a  party  to  the 
conflict,  that  is,  it  must  have  right  authority.  In  World  War  II,  this  authority  was 
manifested  through  training,  logistical,  communications  and  other  support,  pro- 
vided by  governments-in-exile  with  the  assistance  of  the  British  SOE  and  American 
OSS,  and  military  forces  supporting  them,  such  as  with  sealift  and  airlift  for  deliv- 
ering supplies  and  agents,115  as  well  as  overtly  through  official  pronouncements.116 

The  preceding  criteria  are  prerequisites  before  the  four  remaining  criteria  in  Ar- 
ticle 4A(2)  are  applicable.  The  first  two  criteria  in  Article  4A(2)  are  a  threshold  that 
must  be  crossed  before  the  last  four  can  be  considered.117  If  an  armed  group  meets 
the  threshold  criteria,  consideration  must  be  given  to  whether  or  not  the  armed 
group  meets  each  and  every  one  of  the  remaining  criteria  listed  in  Article  4A(2).118 

The  1949  change  entitled  members  of  an  organized  resistance  movement  oper- 
ating under  the  authority  of  a  government — but  only  organized  armed  groups  op- 
erating under  government  authority — to  prisoner  of  war  status.  The  requirement 
for  such  movements  to  "conduct  their  operations  in  accordance  with  the  laws  and 
customs  of  war"  confirmed  the  combatant's  privilege  and  provided  lawful  combat- 
ant status. 

The  change  in  entitlement  reflected  the  experience  of  World  War  II  resistance 
movements  while  codifying  the  distinction  between  organized,  State-sanctioned 
partisans  and  private  guerrillas  made  by  Francis  Lieber  during  the  American  Civil 
War.  Equally  important,  delegates  to  the  1949  Geneva  Diplomatic  Conference  de- 
clined to  provide  lawful  combatant  or  prisoner  of  war  status  to  private  citizens  act- 
ing without  government  authority. 

Geneva  Convention  (IV)  Relative  to  the  Protection  of  Civilian  Persons  in  Time 
of  War  (GC)  by  its  title  and  the  language  of  Common  Article  2  applies  only  in  an 
international  armed  conflict  between  two  or  more  nations.  The  GC  filled  a  gap 
(that  is,  protection  for  civilians  in  enemy  hands,  including  in  enemy-occupied  ter- 
ritory). Article  5,  paragraph  3,  provides  limited  protection  to  a  civilian  "suspected 
of  or  engaged  in  activities  hostile  to  the  State"  in  an  international  armed  conflict  as 
it  is  defined  in  Article  2.  Private  citizens  who  engage  in  combatant-like  actions 
other  than  in  occupied  territory  or  enemy  territory  do  not  receive  protection  under 
the  Geneva  civilians  convention.  This  excludes  transnational  terrorists  from  pro- 
tection under  that  treaty. 


269 


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Governments  participating  in  the  1949  diplomatic  conference  did  not  intend 
that  the  four  1949  Geneva  Conventions  provide  a  seamless  "safety  net"  of  protec- 
tion for  all  persons,  in  particular  private  individuals  or  organizations  who  conduct 
armed  attacks  without  government  authority.  The  negotiating  record  of  the  1949 
Geneva  Conventions  is  clear  that  the  conventions  were  not  intended  to  and  do  not 
provide  protection  to  unprivileged  belligerents.  In  the  course  of  the  1949  diplo- 
matic conference,  the  delegate  representing  the  ICRC  stated  that  "although  the  two 
conventions  might  appear  to  cover  all  categories  concerned,  irregular  belligerents 
were  not  actually  protected."119  Similarly,  the  representative  of  the  United  King- 
dom stated  "the  whole  conception  of  the . . .  [Geneva  civilians  convention]  was  the 
protection  of  civilian  victims  of  war,  and  not  the  protection  of  illegitimate  bearers 
of  arms." 

In  the  development  of  the  law  of  war  from  the  mid-nineteenth  century  through 
the  four  1949  Geneva  Conventions,  combatant  status  and  prisoner  of  war  protec- 
tion was  extended  to  members  of  a  levee  en  masse  (as  noted,  limited  in  scope  and 
time)  and  to  organized  resistance  movements  operating  in  enemy-occupied  terri- 
tory under  the  authority  of  a  government  provided  each  met  rigid  conditions  for 
distinguishing  themselves  from  the  civilian  population  and  carrying  out  their  op- 
erations in  accordance  with  the  law  of  war.  In  keeping  with  the  centuries-old  stan- 
dards that  originated  in  jus  militaire  and  the  just  war  tradition,  governments 
steadfastly  have  refused  to  provide  legitimacy  to  or  legal  recognition  for  private 
armed  individuals  or  groups  acting  without  government  authority  and  responsi- 
bility. The  historic  condemnation  of  private  armed  groups  remains  through  their 
exclusion  from  combatant  or  prisoner  of  war  status  for  the  overall  protection  of  the 
civilian  population.  Governments  over  the  centuries  consistently  have  given 
greater  priority  to  the  protection  of  their  civilian  populations  and  individual  civil- 
ians over  entitlement  to  prisoner  of  war  status  for  private  armed  groups,  in  part  to 
dissuade  private  citizens  from  taking  up  arms  and  waging  war  without  government 
authority  and  in  respect  for  the  law  of  war  principle  of  discrimination. 

With  this  history  in  mind,  the  status  of  members  of  the  Taliban  and  al-Qaeda 
may  be  weighed. 

Al-Qaeda 

The  history  of  Afghanistan  and  the  fighting  in  the  two  decades  prior  to  al-Qaeda's 
attack  on  the  United  States  on  September  11,  2001  focused  on  the  Taliban.  Al- 
Qaeda's  history  within  Afghanistan  and  overall  is  loosely  intertwined  with  the 
Taliban.  Al-Qaeda  was  founded  by  Usama  bin  Laden,  scion  of  a  wealthy  Saudi  fam- 
ily, in  protest  against  Saudi  Arabia's  consent  to  US  bases  in  Saudi  Arabia  in  the 
buildup  to,  and  execution  of,  the  1991  coalition  liberation  of  Kuwait  from  Iraq.120 

270 


W.  Hays  Parks 

Bin  Laden,  a  veteran  of  the  mujahidin  battles  of  the  1980s  against  Soviet  occupation 
of  Afghanistan,  arrived  in  Jalalabad,  Afghanistan,  on  May  18, 1996,  an  area  not  un- 
der Taliban  control  and  without  invitation  from  the  Taliban.121  He  had  an  agenda 
separate  from,  and  broader  than,  the  Taliban's  battle  within  Afghanistan:  a  trans- 
national jihad  against  the  West  and,  in  particular,  the  United  States. 

An  extended  discussion  of  Usama  bin  Laden  and  al-Qaeda's  activities  is  unnec- 
essary. Professors  Goldman  and  Tittemore  describe  al-Qaeda  as  "a  quintessential 
non-State  actor,"  stating,  "President  [Bush]  and  Defense  Secretary  [Rumsfeld]  are 
unquestionably  correct  in  their  depiction  of  al-Qaeda  as  an  international  terrorist 
organization."122  Professor  Toman  agrees  with  Professors  Goldman  and  Tittemore 
with  respect  to  their  first  conclusion,  declaring,  "On  the  basis  of  this  very  short 
practical  analysis,  we  can  easily  conclude,  that  al-Qaeda  members  cannot  benefit — 
in  any  circumstances — from  the  status  of  prisoners  of  war."  Nor  does  a  law  of  war 
basis  exist  for  al-Qaeda  members  to  enjoy  the  combatant's  privilege.123 

The  Taliban 

Article  4  of  the  1949  Geneva  prisoner  of  war  convention  identifies  persons  entitled 
to  prisoner  of  war  status.  Prisoner  of  war  entitlement  differs  from  combatant  sta- 
tus, the  latter  being  narrower  in  scope.124 

The  preceding  pages  establish  that  the  Taliban  was  not  the  government  of  Af- 
ghanistan. That  said,  it  is  necessary  to  review  the  relevant  provisions  in  Article  4  to 
determine  whether  captured  Taliban  are  entitled  to  prisoner  of  war  status.125 

Article  4A(1) 

Article  4A(1)  provides  prisoner  of  war  status  to  "[m]  embers  of  the  armed  forces  of 
a  Party  to  the  conflict  as  well  as  members  of  militias  or  volunteer  corps  forming 
part  of  such  armed  forces." 

In  the  1949  Geneva  Conventions,  the  term  "Party  to  the  conflict"  means  a 
"Contracting  Party"  or  "High  Contracting  Party,"  in  each  case  referring  to  a  gov- 
ernment that  has  ratified  or  acceded  to  the  conventions.  As  noted  in  the  ICRC 
Commentary, 

Each  State  contracts  obligations  vis-a-vis  itself  and  at  the  same  time  vis-a-vis  the  others. 
The  motive  of  the  Convention  is  so  essential  for  the  maintenance  of  civilization  that  the 
need  is  felt  for  its  assertion,  as  much  out  of  respect  for  it  on  the  part  of  the  signatory 
State  itself  as  in  the  expectation  of  such  respect  from  all  parties.126 

As  only  governments  may  contract  on  behalf  of  a  nation  or,  said  differently, 
only  governments  may  agree  to  become  parties  to  the  conventions,  the  term 


271 


Combatants 


"Party  to  a  conflict"  refers  to  an  armed  conflict  between  the  military  forces  of  two 
or  more  nations.  An  armed  private  group  may  choose  to  participate  in  an  inter- 
national armed  conflict  on  one  side  or  another,  but  its  participation  does  not 
make  it  a  "Party  to  the  conflict"  in  the  sense  that  phrase  is  used  in  the  1949 
Geneva  Conventions.127 

In  the  same  vein,  the  term  "armed  forces"  refers  to  "all  members  of  the  regular 
armed  forces  of  a  nation,"128  to  include  members  of  its  reserve  or  militia  forces.  It  is 
left  up  to  each  government  to  determine  how  its  military  is  to  be  composed.  In  the 
United  States,  this  includes  the  reserve  component  of  each  of  its  four  military  ser- 
vices and  the  National  Guard  when  the  latter  have  been  activated  by  the  President. 
The  term  "militia"  in  Article  4A(  1 )  does  not  refer  to  private  armed  groups. 

As  the  Taliban  was  not  the  government  of  Afghanistan  in  fact  or  in  law,  it  was 
not  a  "Party  to  the  conflict"  as  that  term  is  used  in  the  1949  Geneva  Conventions. 
Nor  were  the  Taliban  part  of  the  military  of  Afghanistan,  as  it  no  longer  existed. 
Neither  a  national  government  (other  than  perhaps  in  name  only  with  respect  to 
the  Rabbani  government)  nor  a  national  military  force  existed  during  the  period  in 
question. 

Two  issues  arose  in  the  debate  over  the  Taliban  and  its  status.  As  noted  in  the 
factual  summary,  the  Taliban  did  not  have  the  formal  unit  structure  of  a  Western 
army.  Similarly,  some  Taliban  fighters  ("non- Afghan  Taliban")  were  from  Paki- 
stani tribes,  while  other  fighters  came  from  other  nations.  Were  this  a  case  in  which 
the  Taliban  had  been  the  government  of  Afghanistan  and  its  military  the  regular 
military  of  Afghanistan,  and  therefore  members  of  its  forces  falling  under  Article 
4A(  1 ),  neither  issue  would  have  been  a  basis  for  denial  of  entitlement  to  prisoner  of 
war  status.  Other  than  in  the  most  general  terms,  such  as  command  responsibility, 
the  GPW  does  not  specify  force  structure  requirements.  Further,  the  GPW  is  silent 
and  State  practice  extensive  with  respect  to  the  national  origin  of  a  member  of  the 
regular  military  forces.  For  example,  US  citizens  joined  British  Commonwealth 
military  forces  and  served  in  World  Wars  I129  and  II,130  and  the  US  military  rou- 
tinely enlists  foreign  nationals  residing  in  the  United  States  in  its  armed  forces,  of- 
ten through  the  enticement  of  US  citizenship  following  completion  of  a  successful 
initial  enlistment  tour.131  While  Pakistan  covertly  supplied  the  Taliban  with  arms 
and  ammunition  and  other  support  during  the  1994-2001  Afghan  civil  war,  and  to 
a  degree  facilitated  the  movement  of  Pakistani  tribesmen  to  join  the  Taliban,  it  was 
not  an  acknowledged  party  to  the  conflict  in  Afghanistan.  As  such,  Pakistani  and 
other  non- Afghans  who  joined  the  Taliban  were  entitled  to  no  greater  status  under 
the  law  of  war  than  were  Afghan  members  of  the  Taliban. 


272 


W.  Hays  Parks 

Article  4A(2) 

As  noted  earlier,  Article  4A(2),  GPW,  was  an  outgrowth  of  the  World  War  II  ex- 
perience of  organized  resistance  movements  operating  under  the  authority  and 
with  the  support  of  the  former  governments  of  nations  under  Axis  control.132  It 
does  not  provide  entitlement  to  prisoner  of  war  status  to  all  private  armed 
groups,  but  only  to  those  operating  with  government  authority.  In  this  respect  it 
repeated  the  formula  articulated  by  Dr.  Francis  Lieber  in  his  1863  "Guerrilla  Par- 
ties Considered  with  Reference  to  the  Laws  and  Usages  of  War,"133  and  proposed 
in  the  form  of  an  extended  levee  en  masse  at  the  First  Hague  Peace  Conference  in 
1899  by  Belgium  and  other  smaller  military  powers,  without  success.134  The 
World  War  II  government-sanctioned  resistance  movement  experience  prompted 
reconsideration  of  the  issue  and  a  guarded  and  highly  conditioned  broadening  of 
entitlement  to  prisoner  of  war  status  only  to  organized  armed  groups  acting  under 
government  authority. 

Assuming  arguendo  that  there  was  an  international  armed  conflict  upon  com- 
mencement of  US  and  coalition  offensive  ground  operations  against  the  Taliban 
and  al-Qaeda  on  October  20, 2001,  the  Taliban  did  not  meet  the  six  criteria  in  Ar- 
ticle 4A(2).  Arguably  it  was  an  organized  armed  group,  but  loosely  organized 
along  tribal  lines.  Prior  to  commencement  of  US  and  coalition  military  opera- 
tions, the  Taliban  had  been  financially  and  to  some  extent  logistically  supported 
by  the  Pakistan  ISID  and  Saudi  Arabia  in  the  civil  war  in  Afghanistan.  Saudi  Ara- 
bia had  withdrawn  its  support  and  Pakistan  withdrew  support.135  As  noted,  nei- 
ther was  a  "Party  to  the  conflict"  in  the  Afghan  civil  war.  The  Taliban  were  not 
entitled  to  prisoner  of  war  status  under  Article  4A(2),  as  it  failed  to  meet  all  six  cri- 
teria therein. 

Article  4A( 3) 

Article  4A(3)  entitles  "[m]  embers  of  regular  armed  forces  who  profess  allegiance 
to  a  government  or  an  authority  not  recognized  by  the  Detaining  Power"  to  pris- 
oner of  war  status  and  entitlement. 

This  provision,  new  in  the  1949  Convention,  was  based  upon  the  experience  of 
World  War  II,  as  members  of  the  armed  forces  of  nations  conquered  and  occupied 
by  Germany  continued  the  fight  under  their  respective  governments-in-exile.136 
Jean  S.  Pictet,  in  the  Commentary  on  the  GPW  he  edited  on  behalf  of  the  Interna- 
tional Committee  of  the  Red  Cross,  makes  it  clear  that  the  point  of  reference  for 
Article  4A(3)  was  the  Free  French:  "This  provision  must  be  interpreted,  in  the  first 
place,  in  the  light  of  the  actual  case  which  motivated  its  drafting — that  of  the  forces 
of  General  de  Gaulle  which  were  under  the  authority  of  the  Free  French  National 
Liberation  Committee."137 


273 


Combatants 


Pictet  continues: 

The  expression  "members  of  the  regular  armed  force"  denotes  armed  forces  which 
differ  from  those  referred  to  in  subparagraph  (1)  of  this  paragraph  [138]  in  one  respect 
only:  the  authority  to  which  they  profess  allegiance  is  not  recognized  by  the  adversary 
as  a  Party  to  the  conflict.  These  "regular  armed  forces"  have  all  the  material 
characteristics  of  armed  forces  in  the  sense  of  subparagraph  (1):  they  wear  uniform  [s], 
they  have  an  organized  hierarchy  and  they  know  and  respect  the  laws  and  customs  of 
war.  The  delegates  to  the  1949  Diplomatic  Conference  were  therefore  fully  justified  in 
considering  that  there  was  no  need  to  specify  for  such  armed  forces  the  requirements 
stated  in  subparagraphs  (2)  (a),  (b),  (c),  and  (d).[139] 

The  distinguishing  feature  of  such  armed  forces  is  simply  the  fact  that  in  view  of  their 
adversary,  they  were  not  operating  or  are  no  longer  operating  under  the  direct 
authority  of  a  Party  to  the  conflict  in  accordance  with  Article  2  of  the  Convention.  [ 140] 

One  solution  in  order  to  bring  these  armed  forces  legally  within  the  scope  of  the 
Convention  was  to  associate  them  with  a  belligerent  fighting  against  the  Power 
concerned.  During  the  Second  World  War  the  German  authorities  accepted  this 
solution  and  stated  they  would  consider  the  Free  French  Forces  to  be  "fighting  for 
England".  The  conference  of  Government  Experts  also  supported  this  solution.  [141] 

Another  procedure  which  was  proposed  by  the  [ICRC]  was  that  the  forces  should  be 
recognized  provided  they  were  constituted  in  a  regular  manner  "irrespective  of  the 
Government  or  authority  under  whose  orders  they  might  claim  to  be."  In  order  to 
preclude  any  abusive  interpretation  which  might  have  led  to  the  formation  of  armed 
bands  such  as  the  "Great  Companies"  of  baneful  memoryj 142]  the  drafters  of  the  1949 
Convention  specified  that  such  armed  forces  must  "profess  allegiance  to  a  Government 
or  authority  not  recognized  by  the  Detaining  Power."  It  must  be  expressly  stated  that 
this  Government  or  authority  must,  as  a  minimum  requirement,  be  recognized  by 
third  States,  but  this  condition  is  consistent  with  the  spirit  of  the  provision,  which  was 
founded  on  the  specific  case  of  the  forces  of  General  de  Gaulle. 

It  is  also  necessary  that  this  authority,  which  was  not  recognized  by  the  adversary, 
should  either  consider  itself  as  representing  one  of  the  High  Contracting  Parties,  or 
declare  that  it  accepts  the  obligations  stipulated  in  the  Convention  and  wishes  to  apply 
them.143 

The  Taliban  did  not  meet  the  criteria  contained  in  Article  4A(3)  inasmuch  as  it 
was  never  the  dejure  government  of  Afghanistan.  Throughout  the  Taliban  era  and 
the  period  in  question,  the  government  of  Afghanistan  recognized  by  the  United 
Nations,  the  United  States  and  by  all  nations  other  than  Pakistan,  Saudi  Arabia  and 
the  United  Arab  Emirates  was  that  of  Burhanuddin  Rabbani.144  His  regime  retained 

274 


W.  Hays  Parks 

"title"  to  the  Afghanistan  seat  in  the  United  Nations  throughout  the  ensuing  events 
in  Afghanistan  set  forth  in  this  article.  As  previously  noted,  Saudi  Arabia,  the  UAE 
and  Pakistan  withdrew  their  recognition  of  the  Taliban  as  the  United  States  and  its 
coalition  partners  commenced  military  operations  in  Afghanistan. 

A  distinction  exists  between  the  "Free  French"  case  as  envisioned  by  Article 
4A(3),  GPW,  and  the  situation  in  Afghanistan.  For  Article  4A(3)  to  have  applied  to 
captured  Taliban,  the  Taliban  at  some  point  would  have  had  to  have  been  the  de 
jure  government  of  Afghanistan,  a  status  it  never  achieved. 

Article  4A(6) 

Article  2  of  the  Annex  to  the  1907  Hague  Convention  IV  entitled  citizens  "who,  on 
the  approach  of  the  enemy,  spontaneously  take  up  arms  to  resist  the  invading 
troops  without  having  had  time  to  organize  themselves"  into  regular  armed  forces 
to  status  as  a  levee  en  masse  and  to  prisoner  of  war  status  if  captured  provided  its 
members  "carried  their  arms  openly"  and  respected  the  law  of  war.  Article  4A(6), 
GPW,  reconfirmed  the  Hague  provision,  though  Pictet  acknowledges  that  a  levee 
en  masse  "almost  never  occurred  during  the  Second  World  War."145  Entitlement 
to  levee  en  masse  exists  only  in  territory  not  under  enemy  occupation.  Pictet  also 
notes  that  a  levee  en  masse  "can  only  be  considered  to  exist  during  a  very  short  pe- 
riod of  time,  that  is,  during  the  actual  invasion  period."146  Thereafter,  such  indi- 
viduals are  entitled  to  prisoner  of  war  status  only  if  they  meet  the  six  criteria  in 
Article  4A(2),  GPW.147 

The  Taliban,  however  loosely  structured,  was  an  armed  faction  engaged  in  a 
civil  war  with  other  warlords  or  factions.  Its  resistance  to  the  initial  US/coalition  as- 
sault would  not  have  been  a  spontaneous,  informal  taking  up  of  arms  by  individual 
private  citizens  of  the  sort  contemplated  by  the  language  either  of  the  1907  Hague 
Convention  or  the  1949  GPW. 

Special  Operations  Forces  in  Non-Standard  Uniforms 

Entry  of  US  and  allied  SOF  into  Afghanistan  in  October  2001  brought  to  the  fore 
the  law  of  war  issue  of  dress  of  some  SOF  in  indigenous  attire.  It  is  a  matter  this  au- 
thor examined  at  length,148  but  which  by  necessity  must  be  addressed  briefly  here. 
In  addition  to  the  legal  issue  as  such,  it  exposes  an  inconsistency  in  the  Bush  ad- 
ministration's arguments  for  denial  of  prisoner  of  war  status  to  captured  Taliban. 
US  and  allied  SOF  were  members  of  the  regular  forces  of  their  nations  and,  con- 
sistent with  Article  4A(1),  GPW,  entitled  to  prisoner  of  war  status  if  captured  by 
military  forces  of  an  enemy  nation.  The  entitlement  to  prisoner  of  war  status  of  in- 
dividuals who  fall  within  Article  4A(  1 )  is  absolute;  it  is  not  conditional,  as  is  the 


275 


Combatants 


case  with  militia  and  organized  resistance  endeavoring  to  gain  prisoner  of  war  enti- 
tlement under  Article  4A(2),  GPW.149 

As  noted,  governments  involved  in  drafting  the  1949  GPW  were  fully  cognizant 
of  the  World  War  II  resistance  experience.  It  was  the  basis  for  broadening  the  pro- 
tection contained  in  Article  1,  Annex  to  the  1907  Hague  Convention  IV  and  Arti- 
cle 1 ,  paragraph  1  ,  Geneva  Convention  Relative  to  the  Treatment  of  Prisoners  of 
War  of  July  27,  1929,150  to  include  members  of  State-sponsored  organized  resis- 
tance movements  as  individuals  entitled  to  prisoner  of  war  status  provided  they 
met  the  four  criteria  contained  in  each  of  those  treaties  and  in  Article  4A(2)  of  the 
1949  GPW.  Had  governments  in  1899, 1907, 1929  or  1949  regarded  the  wearing  of 
a  uniform  a  prerequisite  for  captured  regular  forces'  entitlement  to  prisoner  of 
war  status,  it  would  not  have  been  difficult  to  have  said  so.  They  did  not.151  That 
said,  a  general  assumption  exists  that  members  of  a  State's  armed  forces  (as  that 
term  is  used  in  the  GPW),  including  SOF,  will  meet  the  four  criteria  contained  in 
Article  4A(2)  in  their  operations.  In  practical  terms,  this  has  been  accomplished  by 
regular  forces,  including  SOF.152 

A  distinction  exists,  however,  between  the  requirement  in  Article  4A(2)(b)  to 
have  a  "fixed  distinctive  sign  recognizable  at  a  distance"  and  an  assumption  that 
regular  forces,  including  SOF,  must  wear  full  uniforms  in  order  to  remain  entitled 
to  prisoner  of  war  status.  This  distinction  is  not  supported  by  treaty  text  or  State 
practice,  as  this  author  has  shown.153 

Several  problems  arise  with  an  assumption  that  uniforms  are  required  for  enti- 
tlement to  prisoner  of  war  status:  (a)  no  such  requirement  exists  in  the  1899 
Hague  Convention  II,  1907  Hague  Convention  IV,  1929  GPW,  nor  in  the  1949 
GPW;  (b)  the  term  "uniform"  is  not  used  in  any  of  these  treaties;154  (c)  "uniform" 
is  undefined  in  the  law  of  war;155  and  (d)  requiring  SOF  to  wear  a  complete  uni- 
form would  impose  upon  them  a  higher  standard  than  that  imposed  upon  mem- 
bers of  an  organized  resistance  movement  entitled  to  prisoner  of  war  status  under 
Article  4A(2),  GPW. 

The  issue  was  clarified  in  the  diplomatic  history  of  the  1974-77  diplomatic  con- 
ference that  produced  the  1977  Additional  Protocol  I  and  II.  The  criteria  for  com- 
batant and  prisoner  of  war  status  were  relaxed  in  Articles  43  ( 1 )  and  44(3),  for  non- 
State  actors  in  conflicts  of  the  type  defined  in  Article  1(4).  As  neither  the  United 
States  nor  Afghanistan  is  a  party  to  Additional  Protocols  I  and  II,  these  provisions 
are  not  directly  germane  to  the  issue  at  hand.  However,  Article  44(7)  and  its  legisla- 
tive history  are.  Article  44(7)  states  "[t]his  Article  is  not  intended  to  change  the 
generally  accepted  practice  of  States  with  respect  to  the  wearing  of  the  uniform  by 
combatants  assigned  to  the  regular,  uniformed  armed  units  of  a  Party  to  the 
conflict." 


276 


W.  Hays  Parks 

An  authoritative  commentary  on  this  provision,  prepared  by  individuals  di- 
rectly involved  in  its  drafting  and  negotiation,  explains  the  meaning  of  this 
provision: 

Within  the  Working  Group  the  initial  enthusiasm  for  a  single  standard  applicable  both 
to  regular  and  independent  armed  forces  was  dampened  when  concern  was  expressed 
that  the  [new]  rules  . . .  might  encourage  uniformed  regular  forces  to  dress  in  civilian 
clothing. . . .  Accordingly,  para.  7  was  developed  to  [overcome  this  concern]. . . .  The 
report  of  the  Working  Group,  however,  states  that  "regulars  who  are  assigned  to  tasks 
where  they  must  wear  civilian  clothes,  as  may  be  the  case  . . .  with  advisers  assigned  to 
certain  resistance  units,  are  not  required  to  wear  the  uniform."  The  implication  of  para. 
7,  construed  in  the  light  of  the  Working  Group  report  is  that  uniforms  continue  to  be 
the  principal  means  by  which  members  of  regular  uniformed  units  distinguish 
themselves  from  the  civilian  population  . . .  but  that  members  of  regular  armed  forces 
assigned  or  attached  to  duty  with  the  forces  of  resistance  or  liberation  movements  may 
conform  to  the  manner  in  which  such  irregulars  conform  to  the  requirements  of  para.  3.156 

The  situation  US  and  other  coalition  SOF  faced  upon  entry  into  Afghanistan 
was  not  new.  Special  operations  forces  working  with  indigenous  resistance  forces 
frequently  find  themselves  singled  out  as  high-value  targets  by  opposing  forces.157 
With  the  precedent  of  the  consequences  of  the  1993  Battle  of  Mogadishu,  following 
which  US  forces  were  withdrawn  from  Somalia,  and  fearing  a  similar  withdrawal  in 
the  event  of  US  casualties,  Northern  Alliance  warlords  insisted  on  US  and  other 
SOF  wearing  indigenous  attire  in  the  opening  phase  of  operations  against  al-Qaeda 
and  the  Taliban  so  they  would  blend  in  with  the  forces  with  whom  they  served.158 
Opposing  sides  generally  had  no  difficulty  identifying  one  another  as  fighters.159 

The  issue  at  hand  with  respect  to  al-Qaeda,  the  Taliban  and  coalition  SOF  in 
Northern  Alliance  dress  was  twofold:  first,  whether  they  met  any  of  the  criteria  in 
Article  4,  GPW,  for  entitlement  to  prisoner  of  war  status,  and  second,  if  they  were 
lawful  combatants,  whether  they  engaged  in  "treacherous  killing,"  prohibited  by 
Article  23(e),  Annex  to  the  1907  Hague  Convention  IV,160  and  otherwise  referred 
to  as  perfidy.  In  the  case  at  hand  the  prohibition  on  perfidy  is  defined  in  part  in  Arti- 
cle 37,  1977  Additional  Protocol  I,  as  follows: 

1.  It  is  prohibited  to  kill,  injure  or  capture  an  adversary  by  resort  to  perfidy.  Acts 
inviting  the  confidence  of  an  adversary  to  lead  him  to  believe  that  he  is  entitled  to,  or 
is  obliged  to  accord,  protection  under  the  rules  of  international  law  applicable  in 
armed  conflict,  with  intent  to  betray  that  confidence,  shall  constitute  perfidy.  The 
following  acts  are  examples  of  perfidy: 


(c)  the  feigning  of  civilian  or  non-combatant  status 


277 


161 


Combatants 


With  the  exception  of  acts  by  individual  members  of  al-Qaeda  or  the  Taliban, 
perfidy  was  not  an  issue  in  the  course  of  the  operations  during  the  time  frame  in 
question.  As  noted,  both  sides  readily  identified  opposing  forces. 

President  Bush's  Decision 

On  February  7, 2002,  President  George  W.  Bush  signed  a  memorandum  to  the  Vice 
President,  Secretary  of  State,  Secretary  of  Defense,  Attorney  General,  Director  of 
Central  Intelligence,  Chairman  of  the  Joint  Chiefs  of  Staff  and  others  concerning 
humane  treatment  of  al  Qaeda  and  Taliban  detainees.162  The  memorandum,  by  ac- 
knowledgment based  upon  a  legal  opinion  rendered  by  the  Attorney  General, 
concluded: 

1.  None  of  the  provisions  of  the  1949  Geneva  Conventions  apply  to  "our 
conflict  with  al  Qaeda  in  Afghanistan  or  elsewhere  throughout  the  world 
because,  among  other  reasons,  al  Qaeda  is  not  a  High  Contracting 
Party." 

2.  While  the  Attorney  General  advised  the  President  that  he  has  the 
constitutional  authority  to  "suspend  [sic]  Geneva  as  between  the  United 
States  and  Afghanistan,"  President  Bush  declined  to  do  so  with  respect  to 
the  conflict  with  the  Taliban. 

3.  The  conflict  with  al  Qaeda  and  the  Taliban  was  an  international  armed 
conflict  in  which  Common  Article  3  to  the  four  1949  Geneva 
Conventions  (non-international  armed  conflicts)  did  not  apply. 

4.  Taliban  detainees  are  unlawful  combatants.  Neither  Taliban  nor  al- 
Qaeda  detainees  are  entitled  to  prisoner  of  war  status. 

5.  Detainees  will  be  treated  "humanely  and,  to  the  extent  appropriate  and 
consistent  with  military  necessity,  in  a  manner  consistent  with  the 
principles  of  Geneva." 

The  President's  decision  was  preceded  by  considerable  interagency  debate,  pri- 
marily between  the  Departments  of  Justice  and  State.163  Professors  Goldman, 
Tittemore  and  Toman  provide  analyses  of  the  President's  decision  and  details  of 
the  views  taken  within  the  executive  branch  to  the  extent  they  were  available  at  the 
time  each  article  was  written.164  The  details  of  the  debate  are  worthy  of  separate 
analysis  beyond  the  scope  of  this  article  and,  moreover,  have  been  resolved  more  by 
decisions  of  the  US  Supreme  Court  since  February  7,  2002,  than  by  the  President's 

278 


W.  Hays  Parks 

February  7  memorandum.165  It  is  sufficient  to  note  that  the  Department  of  Justice 
and  the  Attorney  General  aggressively  sought  suspension  of  the  1949  Geneva  Con- 
ventions, while  the  Secretary  of  State  argued  for  a  decision  consistent  with  long- 
standing US  practice  of  providing  humane  treatment  to  individuals  captured  on 
the  battlefield  consistent  with  the  GPW,  even  where  an  individual's  precise  status 
may  not  always  be  clear.166 

In  the  debate  between  the  Departments  of  Justice  and  State  over  the  law  of  war 
status  of  captured  Taliban,  disagreements  over  facts  played  a  large  role.  When  Jus- 
tice Department  officials  offered  as  one  option  the  conclusion  that  Afghanistan 
was  a  failed  State,167  Secretary  of  State  Colin  L.  Powell's  response  did  not  disagree, 
but  contained  an  attachment  with  a  diplomatically  obscure  and  factually  evasive 
rebuttal  that  "any  determination  that  Afghanistan  is  a  failed  State  would  be  con- 
trary to  the  official  US  government  position.  The  United  States  and  the  interna- 
tional community  have  consistently  held  Afghanistan  to  its  treaty  obligations  and 
identified  it  as  a  party  to  the  Geneva  Conventions."168  Similarly,  White  House 
Counsel  Alberto  R.  Gonzales  argued  that  "[t]he  argument  that  the  United  States 
has  never  determined  that  GPW  did  not  apply  is  incorrect.  In  at  least  one  case 
(Panama  in  1989)  the  United  States  determined  that  GPW  did  not  apply  even 
though  it  determined  for  policy  reasons  to  adhere  to  the  convention."169  This  as- 
sertion was  incorrect  as  the  US  position  during  Operation  Just  Cause  was  that  Arti- 
cle 3  Common  to  the  1949  Geneva  Conventions  applied  at  a  minimum. 
Panamanian  Defense  Forces  captured  during  Operation  Just  Cause  were  provided 
prisoner  of  war  protections  pending  formal  determination  by  individual  Article  5, 
GPW,  tribunals,  if  deemed  necessary.170 

A  memorandum  prepared  by  the  late  Edward  R.  Cummings,  a  senior  and  highly 
respected  Department  of  State  lawyer  with  extensive  law  of  war  experience,  notes 
that  his  consultations  determined  that  "[t]he  lawyers  involved  [Departments  of 
Justice,  State,  and  Defense,  White  House  Counsel,  Office  of  the  Vice  President,  and 
Legal  Counsel  to  the  Chairman,  Joint  Chiefs]  all  agree  that  al  Qaeda  or  Taliban  sol- 
diers are  presumptively  not  POWs  [prisoners  of  war]."171  However,  it  emphasized 
that  Department  of  Defense,  Joint  Chiefs  of  Staff  and  Department  of  State 

lawyers  believe  that,  in  the  unlikely  event  that  "doubt  should  arise"  as  to  whether  a 
particular  detainee  does  not  qualify  for  POW  status,  we  should  be  prepared  to  offer 
additional  screening  on  a  case-by-case  basis,  either  pursuant  to  Article  5  of  GPW  (to  the 
extent  the  convention  applies)  or  consistent  with  Article  5  (to  the  extent  it  does  not) . J  72 

The  memorandum  notes  that  lawyers  at  the  Department  of  Justice,  White  House 
Counsel  and  Office  of  the  Vice  President  did  not  agree. 


279 


Combatants 


The  President's  decision  attempted  to  split  the  difference,  but  in  a  way  that  was 
less  politically  and  legally  defensible  than  had  the  law  been  strictly  applied,  as  has 
been  the  long-standing  practice  of  the  United  States  in  armed  conflicts  in  which 
captured  enemy  personnel  may  not  have  met  the  criteria  contained  in  Article  4, 
GPW,  for  entitlement  to  prisoner  of  war  status. 

Public  statements  offering  a  rationale  for  President  Bush's  decision  contained  a 
flawed  law  of  war  analysis.  On  February  7,  2002,  the  following  White  House  an- 
nouncement explained  the  legal  basis  for  President  Bush's  decision: 

The  President  has  determined  that  the  Geneva  Convention  applies  to  the  Taliban 
detainees,  but  not  to  the  al  Qaeda  detainees. 

Al  Qaeda  is  not  a  state  party  to  the  Geneva  Convention;  it  is  a  foreign  terrorist  group. 
As  such,  its  members  are  not  entitled  to  POW  status. 

Although  we  never  recognized  the  Taliban  as  the  legitimate  Afghan  government, 
Afghanistan  is  a  party  to  the  Convention,  and  the  President  has  determined  that  the 
Taliban  are  covered  by  the  Convention.  Under  the  terms  of  the  Geneva  Convention, 
however,  the  Taliban  detainees  do  not  qualify  as  PO Ws. 

Therefore,  neither  the  Taliban  nor  al  Qaeda  detainees  are  entitled  to  POW  status.173 

At  a  White  House  press  briefing  that  same  day,  White  House  Press  Secretary  Ari 
Fleischer  stated: 

[T]he  national  security  team  .  .  .  has  always  said  that  these  detainees  should  not  be 
treated  as  prisoners  of  war,  because  they  don't  conform  to  the  requirements  of  Article  4 
of  the  Geneva  Convention,  which  detailed  what  type  of  treatment  would  be  given  to 
people  in  accordance  with  POW  standards.  That's  a  very  easily  understood  legal 
doctrine  of  Article  4.  For  example,  the  detainees  in  Guantanamo  did  not  wear 
uniforms.  They're  not  visibly  identifiable.  They  don't  belong  to  a  military  hierarchy. 
All  of  those  are  prerequisites  under  Article  4  of  the  Geneva  Convention,  which  will  be 
required  in  order  to  determine  somebody  is  a  POW.174 

The  following  day  Secretary  of  Defense  Donald  H.  Rumsfeld  repeated 
Fleischman's  comment,  stating  the  GPW  "requires  soldiers  to  wear  uniforms  that 
distinguish  them  from  the  civilian  population."175  Continuing,  he  stated,  "The 
Taliban  did  not  wear  distinctive  signs,  insignias,  symbols  or  uniforms.  To  the  con- 
trary, far  from  seeking  to  distinguish  themselves  from  the  civilian  population  of 
Afghanistan,  they  sought  to  blend  in  with  civilian  non-combatants,  hiding  in 
mosques  and  populated  areas."176 

280 


W.  Hays  Parks 

The  Fleischer  and  Rumsfeld  statements  contain  two  fundamental  discrepancies. 
First,  each  fails  to  articulate  the  primary  threshold  for  entitlement  to  prisoner  of 
war  status:  al-Qaeda  and  the  Taliban  were  private  armed  groups  lacking  any  autho- 
rization or  support  from  a  State  party  to  the  armed  conflict.  Failing  this,  the  four 
criteria  cited  by  Fleischer  and  Rumsfeld  are  not  relevant;  they  and  the  balance  of 
the  GPW  do  not  apply  to  al-Qaeda,  the  Taliban  or  any  other  armed  private  group. 
As  explained,  the  concept  of  right  authority  dates  back  more  than  eight  centuries;  it 
is  expressly  stated  in  Article  4A(2),  GPW;  yet  it  is  missing  from  the  Gonzales  mem- 
orandum to  President  Bush,  the  Bush  memorandum,  and  the  Fleischer  and 
Rumsfeld  statements.  The  key  element  (right  authority)  was  completely  missed  or 
ignored  in  the  official  decision-making  process  and  explanations  of  the  Bush 
administration. 

Second,  emphasis  on  captured  al-Qaeda  and  Taliban  not  wearing  a  "uniform" 
not  only  was  factually  incorrect,  but  ignored  the  fact  that  US  forces  fought  along- 
side anti-Taliban  forces  who  also  did  not  wear  a  "uniform"  in  the  Western  Euro- 
pean tradition.177  Moreover,  the  term  "uniform"  is  not  the  prerequisite  in  Article 
4A(2),  GPW,  which  is  "having  a  fixed  distinctive  sign  recognizable  at  a  distance." 
As  previously  noted,  "uniform"  is  neither  used  nor  defined  in  the  relevant  law  of 
war  treaties.178  The  distinctive  apparel  worn  by  Taliban  and  anti-Taliban  forces 
and,  in  the  case  of  the  latter,  by  some  US  special  operations  forces  working  with 
them,  met  the  "distinctive  sign  recognizable  at  a  distance"  test  contained  in  Article 
4A(2).179 

Finally,  in  emphasizing  the  erroneous  "uniform"  test  while  ignoring  the  "orga- 
nized resistance  movement  of  a  Party  to  the  conflict"  requirement,  Fleischer  and 
Rumsfeld  not  only  ran  afoul  of  the  treaty  provision  but  appeared  to  suggest  that  al- 
Qaeda  and  the  Taliban  represented  the  government  of  Afghanistan,  contrary  to  the 
President's  decision  that  "[b]y  its  terms,  Geneva  applies  to  conflicts  involving 
'High  Contracting  Parties,'  which  can  only  be  states."  This  inconsistency  was  not 
missed  by  critics  of  the  administration's  approach  to  law  of  war  application  with 
respect  to  captured  members  of  these  two  organizations.180  Whether  one  agrees  or 
disagrees  with  President  Bush's  decision,  these  statements  were  an  incredible 
stumble  given  the  degree  to  which  this  issue  was  discussed  within  the  executive 
branch  prior  to  the  President's  February  7  decision. 

President  Bush's  principal  conclusion  that  neither  al-Qaeda  nor  the  Taliban  was 
entitled  to  combatant  or  prisoner  of  war  status  was  legally  correct,  but  its  support- 
ing statements  were  contradictory  and  factually  and  legally  incorrect,  as  follows: 


281 


Combatants 


Bush  administration  rationale  for  denial 

of  prisoner  of  war  status  to  captured  al- 

Qaeda  and  Taliban 

Factual  or  legal  discrepancy,  or  contradic- 
tory statements  or  actions  by  the  Bush 
administration 

"The  President  has  determined  that  the 
[GPW]  applies  to  the  Taliban  detainees,  but 
not  to  the  al-Qaida  detainees."181 

"[T]he  President  has  determined  that  the 
Taliban  are  covered  by  the  [GPW]  .... 
[H]owever,  the  Taliban  detainees  do  not 
qualify  as  POWs."182 

Legally  incorrect  and  contradictory.  As 
noted  in  subsequent  statements  and  the  six 
conditions  contained  in  Article  4A(2), 
GPW,  captured  Taliban  were  not  entitled  to 
prisoner  of  war  status.  Therefore  GPW  did 
not  apply  to  Taliban  detainees. 

Inconsistent  with  the  President's  statement 
that  "[b]y  its  terms,  [GPW]  applies  to  con- 
flicts involving  'High  Contracting  Parties,' 
which  can  only  be  states." 

Inconsistent  with  statement  3  (below). 

US  followed  GPW  as  a  matter  of  policy  in 
past  conflicts  where  status  of  captured  indi- 
viduals was  undetermined.  The  Bush  ad- 
ministration did  not  continue  this  practice, 
resisting  application  of  Common  Article  3 
humane  treatment  provisions  until  man- 
dated by  US  Supreme  Court.183 

"Al  Qaeda  is  not  a  High  Contracting 
Party."184 

Legally  vague  and  inaccurate.  It  would  have 
been  more  accurate  to  say  "al-Qaeda  is  a 
private  armed  group  that  meets  none  of  the 
GPW  categories  for  POW  status." 

"Al  Qaeda  is  not  a  state  party  to  the  [GPW]; 
it  is  a  foreign  terrorist  group.  As  such,  its 
members  are  not  entitled  to  POW  status."" 

"Under  the  terms  of  the  [GPW],  neither  the 
Taliban  nor  al-Qaida  detainees  are  entitled 
to  POW  status."186 

Inconsistent  with  first  statement  (above) 
that  "GPW  applies  to  Taliban  detainees." 
GPW  applies  to  captured  individuals  who 
meet  one  of  the  categories  contained  in  Ar- 
ticle 4.  If  captured  personnel  do  not  fall 
within  one  of  those  categories,  GPW  is  le- 
gally inapplicable. 

"We  never  recognized  the  Taliban  as  the  le- 
gitimate Afghan  government."" 

Contradictory  statements. 

The  first  implies  that  the  Taliban  was  the  de 
jure  government.  The  second  contradicts 
the  first. 

"The  Taliban  was  not  the  government  of 
Afghanistan."188 

First  statement  is  not  supported  factually. 

282 


W.  Hays  Parks 


Bush  administration  rationale  for  denial 

of  prisoner  of  war  status  to  captured  al- 

Qaeda  and  Taliban 

Factual  or  legal  discrepancy,  or  contradic- 
tory statements  or  actions  by  the  Bush 
administration 

Captured  al-Qaeda  and  Taliban  "did  not 
wear  uniforms.  They're  not  easily 
identifiable."189 

Assuming  reference  by  each  was  to  Article 
4A(2),  GPW,  there  is  no  requirement  to 
wear  uniform,  but  to  wear  "a  fixed  distinc- 
tive sign  recognizable  at  a  distance." 

GPW  "requires  soldiers  to  wear  uniforms 
that  distinguish  them  from  the  civilian  pop- 
ulation. The  Taliban  did  not  wear  distinc- 
tive signs,  insignias,  symbols,  or 
uniforms."190 

"Distinctive  sign"  one  of  six  requirements 
in  Article  4A(2),  GPW,  all  of  which  must  be 
met. 

Factually  incorrect:  SOF  reported  both  al- 
Qaeda  and  Taliban  wore  distinctive  attire 
and  by  and  large  were  easily  identifiable 
when  assembled  as  fighting  units.191 

US/coalition  SOF  worked  with  and  wore  in- 
digenous (Northern  Alliance)  attire  that 
met  the  "distinctive  sign"  criteria. 

Hypocritical  to  emphasize  "failure  to  wear 
uniform"  as  the  basis  for  denial  of  POW 
status  when  coalition  forces  were  similarly 
attired  in  non-standard  (Northern  Alliance) 
uniforms. 

Al-Qaeda  and  Taliban  "don't  belong  to  a 
military  hierarchy."192 

Statement  is  factually  incorrect,  ambiguous, 
incomplete. 

Taliban  had  tribal  hierarchy.  GPW  estab- 
lishes no  specific  organizational  criteria. 

Statement  fails  to  emphasize  that  there  are 
six  criteria  in  Article  4A(2),  GPW,  each  of 
which  must  be  met  for  entitlement  to  POW 
status. 

Taliban  hid  in  mosques.193 

Taking  up  position  in  a  mosque  is  not  a  vi- 
olation of  the  law  of  war.  It  may  result  in 
the  mosque  relinquishing  its  normal  status 
as  a  civilian  object  and  becoming  a  military 
objective,194  but  is  not  necessarily  a  law  of 
war  violation  or  a  basis  for  denial  of  pris- 
oner of  war  status. 

Conclusions  and  Lessons  to  Be  Learned 

This  author's  remit  was  to  examine  the  issue  of  al-Qaeda  and  the  Taliban  entitle- 
ment to  combatant  and  prisoner  of  war  status.  As  concluded  herein,  neither  al- 
Qaeda  nor  the  Taliban  were  entitled  to  lawful  combatant  or  prisoner  of  war  status. 


283 


Combatants 


The  author  believes  the  paper  would  be  incomplete  if  it  did  not  identify  lessons 
to  be  learned  from  the  actions  taken  by  the  Bush  administration  and  others  with  re- 
spect to  this  process.  Several  conclusions  or  lessons  may  be  drawn  from  the  situa- 
tion as  it  existed  and  the  decision-making  process  related  to  the  law  of  war  status  of 
al-Qaeda  and  Taliban  captured  in  Afghanistan  between  the  beginning  of  US/coali- 
tion offensive  operations  in  October  2001  and  President  George  W.  Bush's  deci- 
sion memorandum  of  February  7,  2002: 

•  President  George  W.  Bush  was  legally  correct  in  concluding  that  neither  al- 
Qaeda  nor  the  Taliban  met  the  prerequisites  for  prisoner  of  war  status,  but  for  the 
wrong  reasons. 

•  Both  al-Qaeda  and  the  Taliban  were  private  armed  groups.  Neither 
operated  as  an  agent  of  a  government.  As  such,  both  groups  lacked  right 
authority,  the  centuries-old  prerequisite  for  entitlement  to  lawful 
combatant  and  prisoner  of  war  status  that  is  continued  in  the  1949  Geneva 
Convention  Relative  to  the  Treatment  of  Prisoners  of  War.  This  point  was 
completely  overlooked  or  ignored  in  the  Bush  administration's  rationale  for 
denial  of  prisoner  of  war  status  to  captured  al-Qaeda  and  Taliban. 

•  The  Taliban  was  one  faction  in  a  civil  war  in  a  failed  State.  It  had 
achieved  neither  status  nor  international  recognition  as  the  de  facto  or  de 
jure  government  of  Afghanistan.  As  was  the  case  with  captured  al-Qaeda, 
Taliban  fighters  did  not  meet  any  of  the  categories  within  Article  4,  GPW, 
for  entitlement  to  prisoner  of  war  status. 

•  The  Bush  administration  rationale  for  denial  of  prisoner  of  war  status 
to  captured  Taliban  was  fundamentally  flawed  in  its  focus  exclusively  on  the 
last  four  criteria  of  the  six  criteria  contained  in  Article  4A(2),  GPW,  and 
inconsistent  given  US  active  support  of  and  alliance  with  Northern  Alliance 
forces  that  did  not  meet  the  same  four  criteria. 

•  Arguments  by  administration  officials  to  "suspend"  or  minimize  GPW 
application,  and  language  used  to  accomplish  this  in  the  administration's 
rationalization  for  denial  of  prisoner  of  war  status,  ignored  the  historic  leadership 
the  United  States  has  exercised  in  law  of  war  application  in  general  and  in 
providing  humane  treatment  for  captured  personnel,  even  those  not  entitled  to 
prisoner  of  war  status. 

•  The  law  of  war  is  a  highly  esoteric  subject.  It  requires  careful  research, 
reading  and  understanding  of  treaty  texts,  their  diplomatic  history  and  State 
practice,  rather  than  cursory  reading  and  selective  use  of  treaty  phrases  in  a 
manner  inconsistent  with  their  meaning.  No  competent  lawyer  would  cite  a  case 


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W.  Hays  Parks 

without  reading  it  in  its  entirety  nor  would  he  or  she  cite  to  a  court  a  statutory 
provision  without  researching  its  law  of  war  history.  Making  decisions  related  to 
law  of  war  issues  requires  the  same  level  of  research,  diligence  and  competence. 
This  was  not  manifested  in  administration  documents  related  to  the 
determination  of  the  status  of  al-Qaeda  and  the  Taliban. 

•  The  flawed  arguments  offered  in  support  of  the  President's  February  7, 2002 
decision  were  politically  based  rather  than  based  on  the  law.  They  ignored  the  fact 
that  the  1949  Geneva  Conventions  were  submitted  to  the  Senate  for  its  advice  and 
consent  to  ratification  by  a  Republican  president  who,  as  a  military  officer,  led  the 
Allied  campaign  to  victory  against  Germany  in  World  War  II;  that  the  1949 
Geneva  Conventions  have  been  applied  in  every  armed  conflict  since  their 
ratification  without  hesitation  by  successive  administrations  (four  Republican 
and  four  Democrat),  even  where  questions  existed  as  to  their  formal  application, 
because  of  US  leadership  in  applying  the  law  of  war;  and  that  these  decisions  did 
not  hinder  US  military  operations  or  place  national  security  at  risk. 

•  While  his  decision  on  the  key  point  may  have  been  correct,  President  Bush 
erred  in  accepting  the  advice  of  individuals  who  lacked  military  experience  and  in- 
depth  knowledge  of  the  law  of  war,  but  possessed  skepticism,  if  not  disdain,  for  the 
law  of  war,  over  that  of  individuals  with  military,  combat  and  substantial  law  of 
war  expertise  and  experience.  This  error  affected  the  credibility  of  the  decision 
and  damaged  the  public  diplomacy  aspect  of  fighting  the  transnational  terrorist 
threat  posed  by  al-Qaeda  and  other  terrorist  groups  associated  with  it. 

•  The  executive  branch  possesses  the  subject-matter  expertise  capable  of 
producing  a  legally  accurate,  credible  and  correct  document  to  explain  the 
rationale  for  denial  of  lawful  combatant  and  prisoner  of  war  status  to  private 
armed  groups  like  al-Qaeda  and  the  Taliban.  The  unnecessarily  secretive  decision- 
making process  leading  up  to  the  President's  February  7,  2002  memorandum 
failed  to  utilize  the  expertise  available  to  it,  to  its  detriment. 

•  The  assertion  of  "universal  applicability"  of  the  1949  Geneva  Conventions 
(by  virtue  of  their  ratification  or  accession  by  all  governments)  is  in  sharp  conflict 
with  the  significant  failure  of  their  application  and  implementation  by  the 
majority  of  State  parties.  The  fundamental  inconsistency  of  Afghanistan's  tribal 
warfighting  culture  and  history  of  abuse  of  innocent  civilians  and  persons  hors  de 
combat  with  the  law  of  war  should  have  been  apparent  to  and  recognized  by  the 
International  Committee  of  the  Red  Cross  in  eliciting  Afghanistan's  ratification  of 
the  1949  Geneva  Conventions,  and  by  the  government  of  Switzerland,  as  the 
depositary  of  the  Geneva  Conventions,  in  accepting  Afghanistan's  instrument  of 
ratification  or  accession.  Law  of  war  treaty  ratification  should  be  a  matter  of 

285 


Combatants 


quality  of  and  capability  for  implementation,  respect  and  adherence,  rather  than 
mere  quantity  of  State  parties.  "Universal  applicability"  means  nothing  if  there  is 
not  universal  application. 

•  Afghanistan's  cultural  history  does  not  relieve  it  of  its  treaty  obligations.  If 
the  law  of  war  is  to  have  any  relevance,  State  parties  must  be  held  accountable  for 
their  failures  to  take  steps  beyond  merely  being  a  name  on  the  list  to  implement 
them. 

•  If  the  International  Committee  of  the  Red  Cross  is  to  maintain  its  claim  as 
the  "guardian  of  the  Geneva  Conventions,"  it  must  do  more  to  gain  "universal 
application"  of  law  of  war  treaties  to  which  each  State  is  a  party. 

Notes 

1 .  Afghanistan,  the  United  States  and  every  other  nation  involved  is  a  party  to  the  four  1 949 
Geneva  Conventions.  Neither  the  United  States  nor  Afghanistan  is  a  State  party  to  the  1977  Pro- 
tocols I  and  II  Additional  to  the  1949  Geneva  Conventions.  Protocol  Additional  to  the  Geneva 
Conventions  of  12  August  1949,  and  Relating  to  the  Protection  of  Victims  of  International 
Armed  Conflicts,  June  8, 1 977, 1125  U.N.T.S.  3  [  hereinafter  Additional  Protocol  I  ] ;  Protocol  Ad- 
ditional to  the  Geneva  Conventions  of  1 2  August  1 949,  and  Relating  to  the  Protection  of  Victims 
of  Non-International  Armed  Conflicts,  June  8,  1977,  1 125  U.N.T.S.  609  [hereinafter  Additional 
Protocol  II];  both  reprinted  in  THE  LAWS  OF  ARMED  CONFLICTS  (Dietrich  Schindler  &  Jiri 
Toman  eds.,  4th  rev.  ed.  2004),  at  785  and  791  respectively. 

2.  W.  Hays  Parks,  Special  Forces'  Wear  of  N on-Standard  Uniforms,  4  CHICAGO  JOURNAL  OF 
INTERNATIONAL  LAW  493, 505-06  n.2 1  (2003),  republished  by  the  same  title  in  abridged  form  in 

Issues  in  International  Law  and  Military  Operations  69, 74  (Richard  B.  Jaques  ed.,  2006) 
(Vol.  80,  US  Naval  War  College  International  Law  Studies). 

3.  Robert  K.  Goldman  &  Brian  Tittemore,  Unprivileged  Combatants  and  the 
Hostilities  in  Afghanistan:  Their  Status  and  Rights  under  International 
Humanitarian  and  Human  Rights  Law  23  (2002),  available  at  http://asil.org/taskforce/ 
goldman.pdf;  Jiri  Toman,  The  Status  of  Al  Qaeda/Taliban  Detainees  under  the  Geneva  Conven- 
tions, 32  ISRAEL  YEARBOOK  ON  HUMAN  RIGHTS  271  (2003). 

4.  James  Moloney  Spaight,  War  Rights  on  Land  17  (191 1). 

5.  Adam  Roberts,  Land  Warfare:  From  Hague  to  Nuremberg,  in  THE  LAWS  OF  WAR:  CON- 
STRAINTS ON  Warfare  in  the  Western  WORLD  117  (Michael  Howard,  George  J. 
Andreopoulos  &  Mark  R.  Shulman  eds.,  1994). 

6.  For  an  analysis  of  the  basis  for  the  Bush  administration  philosophy,  see  Stephanie 
Carvin,  Linking  Purpose  and  Tactics:  America  and  the  Reconsideration  of  the  Laws  of  War  During 
the  1990s,  9  INTERNATIONAL  STUDIES  PERSPECTIVES  128  (2008). 

7.  See,  e.g.,  RICHARD  H.  SHULTZ  JR.  &  ANDREA  J.  DEW,  INSURGENTS,  TERRORISTS,  AND 
MILITIAS  5  (2006),  where  the  authors  correctly  comment  that  "the  Somali  clan  warriors  that 
took  on  Task  Force  Ranger  in  1993  either  did  not  agree  with  or  had  never  heard  of  strategist  [Karl 
von]  Clausewitz  or  international  lawyer  [Hugo]  Grotius,"  referring  to  the  Battle  of  Mogadishu 
on  October  3-4, 1993,  between  the  forces  of  local  Somali  warlord  Mohammad  Fawiz  Aidid  and 
US  Army  and  Navy  personnel.  Accounts  of  the  battle  are  KENT  DELONG  &  STEVEN  TUCKEY, 


286 


W.  Hays  Parks 

Mogadishu!  Heroism  and  Tragedy  (1994)  and  Mark  Bowden,  Black  Hawk  Down 
(1999).  See  also  SHULTZ  &  DEW,  supra,  at  47, 48-54,  86-87;  MICHAEL  SCHEUER,  MARCHING  TO 
HELL:  AMERICA  AND  ISLAM  AFTER  IRAQ  108  (2008). 

Sir  Adam  Roberts  acknowledged  this  problem  in  his  2003  Naval  War  College  International 
Law  Studies  analysis: 

In  wars  in  Afghanistan  over  the  centuries,  conduct  has  differed  markedly  from  that 
permitted  by  the  written  laws  of  war.  These  wars  always  had  a  civil  war  dimension, 
traditionally  subject  to  fewer  rules  in  the  laws  of  war;  and  guerrilla  warfare,  already 
endemic  in  Afghanistan  in  the  nineteenth  century,  notoriously  blurs  the  traditional 
distinction  between  soldier  and  civilian  that  is  at  the  heart  of  the  laws  of  war.  Some  local 
customs,  for  example  regarding  the  killing  of  prisoners  and  looting,  are  directly 
contrary  to  long-established  principles  of  the  law.  Other  customs  are  different  from 
what  is  envisaged  by  the  law,  but  are  not  necessarily  a  violation  of  it:  for  example,  the 
practice  of  soldiers  from  the  defeated  side  willingly  joining  their  adversary  rather  than 
being  taken  prisoner.  In  some  cases,  conduct  has  been  consistent  with  international 
norms:  for  example,  the  ICRC  had  access  to  some  prisoners  during  the  Soviet 
intervention.  Overall,  however,  compliance  with  the  laws  of  war  has  been  limited. 

Adam  Roberts,  The  Laws  of  War  in  the  War  on  Terror,  in  INTERNATIONAL  LAW  AND  THE  WAR  ON 
TERROR  191  (Fred  L.  Borch  &  Paul  S.  Wilson  eds.,  2003)  (Vol.  79,  US  Naval  War  College 
International  Law  Studies). 

8.  The  first  US  military  ground  forces  to  arrive  in  Afghanistan  following  the  September  11, 
2001  al-Qaeda  hijacking  of  four  commercial  airliners  and  their  use  in  attacks  on  the  twin  towers 
of  the  World  Trade  Center,  the  Pentagon  and  an  unconfirmed  third  target  were  US  special  oper- 
ations forces  (SOF)  who  engaged  in  ground  reconnaissance  missions  preceding  US  and  British 
air  and  cruise-missile  attacks  against  Taliban  communication  and  air-defense  targets  on  October 
7,  2001.  STEPHEN  BlDDLE,  AFGHANISTAN  AND  THE  FUTURE  OF  WARFARE:  IMPLICATIONS  FOR 
ARMY  AND  DEFENSE  POLICY  8  (2002).  Offensive  ground  operations  began  with  arrival  of  US 
Army  Special  Forces  Operational  Detachments  Alpha  555  and  595,  5th  Special  Forces  Group, 
which  were  inserted  on  the  night  of  October  19-20, 2001.  CHARLES  H.  BRISCOE  ET  AL.,  WEAPON 
of  Choice:  U.S.  Army  Special  Operations  Forces  in  Afghanistan  96  (2003).  Their  entry 
was  preceded  by  US  and  British  air  and  cruise-missile  attacks  on  Taliban  positions  on  October  7, 
2001.  GARY  BERNTSEN  &  RALPH  PEZZULO,  JAWBREAKER  77  (2005).  During  the  period  covered, 
US  SOF  were  joined  by  SOF  from  Australia,  Canada,  Denmark,  the  Netherlands  and  the  United 
Kingdom.  The  role  of  British  SOF  is  described  in  DAMIEN  LEWIS,  BLOODY  HEROES  (2006). 

9.  Memorandum  from  George  Bush  to  Vice  President  et  al.,  Humane  Treatment  of 
Al  Qaeda  and  Taliban  Detainees  (Feb.  7,  2002),  reprinted  in  THE  TORTURE  PAPERS:  THE 
ROAD  TO  ABU  GHRAIB  134  (Karen  J.  Greenberg  &  Joshua  Dratel  eds.,  2005),  available  at 
http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf  [hereinafter  Bush 
Memorandum]. 

10.  BRISCOE  ET  AL.,  supra  note  8,  at  2. 

11.  Id.  Professor  Frank  L.  Holt  observes: 

The  long  rhythms  of  Afghan  history  do  show  some  periods  of  relative  calm  during 
which  cities  grew,  trade  routes  pulsed,  irrigated  agriculture  expanded,  and  the  arts 
flourished,  but  between  each  renaissance  we  find  an  era  of  ruin  brought  on  or 
exacerbated  by  the  parochialism,  tribalism,  fierce  independence,  and  mutual  hostility  — 
These  social  conditions,  not  to  mention  physical  challenges  of  a  harsh  terrain  and 
environment,  stretch  back  as  far  as  our  earliest  written  sources  will  carry  us.  In  these 


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respects,  the  twenty- first  century  C.E.  differs  very  little  from  the  fifteenth  or  fifth  C.E.  or 
even  the  fourth  B.C.E. 

Frank  L.  Holt,  Into  the  Land  of  Bones:  Alexander  the  Great  in  Afghanistan  9-10 

(2005).  See  also  BYRON  FARWELL,  QUEEN  VICTORIA'S  LITTLE  WARS  143  (1973);  JOHN  H. 

Waller,  Beyond  the  Khyber  Pass:  The  Road  to  British  Disaster  in  the  First  Afghan 
war  ix  (1990);  david  loyn,  butcher  &  bolt:  two  hundred  years  of  foreign 
Engagement  in  Afghanistan  xxxvii,  12, 20, 46, 57, 238  (2008);  Ahmed  Rashid,  Taliban  9- 
10  (2001);  Steve  Coll,  Ghost  Wars  no-ll  (2004);  Dalton  Fury,  Kill  bin  Laden  139 
(2008).  In  explaining  tribal  allegiance  and  its  sustainment  in  today's  world,  Shultz  and  Dew  offer 
the  following: 

[Sir  Edward]  Evans-Pritchard's  segmentary-lineage  theory  was  particularly  applicable 
when  the  tribal  setting  was  egalitarian.  Such  tribal  groupings  are  decentralized  and 
relatively  small,  numbering  no  more  than  several  thousand.  Building  larger  units  was 
difficult  because  such  tribes  did  not  accept  the  authority  of  an  outside  chieftain.  Leader 
status  was  gained  through  charisma,  military  prowess,  negotiation  skills,  and  moral 
status.  Consequently,  establishing  larger  tribal  organizations  in  a  segmentary-lineage 
system  was  likely  only  in  the  event  of  an  external  threat.  Otherwise,  larger  political  units 
existed,  at  best,  as  quasi-states.  A  ruling  lineage  can  come  to  be  recognized  as  providing 
leadership  for  a  larger  group  consisting  of  other  lineages — subtribes  or  clans.  However, 
the  establishment  of  such  a  centralized  political  relationship  is  complicated  and 
delicate.  Tribal  organizations  are  based  on  kinship  ties  and  patrilineal  descent,  making 
more  centralized  political  organizations  atypical. 

SHULTZ  &  DEW,  supra  note  7,  at  50,  citing  Edward  Evans-Pritchard,  The  Nuer,  A 
Description  of  the  Modes  of  Livelihood  and  Political  Institutions  of  a  Nilotic 
People  (1940)  and  Edward  Evans-Pritchard,  The  Sanusi  of  Cyrenaica  (1949).  Continuing: 

Why,  despite  the  crushing  forces  of  modernity,  do  [traditional  societies]  continue  to 
endure?  The  answer  lies  in  what  Ibn  Khaldun,  writing  in  the  fourteenth  century,  said 
about  asabiyya.  The  strength  of  that  solidarity  depends  on  the  extent  to  which  a  tribe 
was  segmentary,  egalitarian,  decentralized,  and  autonomous.  Thus,  the  underlying 
foundation  for  those  forces  is  the  social  principle  of  kinship,  which  is  central  to  a  tribal 
society's  maintenance  of  its  union.  Tribes  endure  when  the  ties  that  bind  them  endure. 

Mat  51. 

With  respect  to  Afghanistan  in  particular,  Shultz  and  Dew  note  that "  [t]he  Afghan  tribes  have 
tolerated  state  power  for  the  advantages  it  provides  over  other  tribal  rivals.  However,  the  state 
does  not  command  the  Afghan  tribes  and  in  the  best  of  times  has  only  limited  authority  over 
them."  Mat  157. 

12.  RASHID,  supra  note  11;  SCHEUER,  supra  note  7,  at  108;  LOYN,  supra  note  11,  at  xxxiv, 
xxxvii,  12,  20.  David  Loyn  offers  an  example  of  the  philosophy  of  decentralized  rule  in  relating 
that  in  1838,  following  British  support  for  Shah  Shuja  as  king,  "[n]one  could  give  a  response  to 
Jabar  Khan  when  he  said,  'If  Shah  Shuja  is  really  a  king . . .  leave  him  now  with  us  Afghans,  and  let 
him  rule  if  he  can.'"  Continuing,  Loyn  declares:  "Afghans  would  make  similar  challenges  in  the 
wars  that  followed,  up  to  and  including  the  appointment  of  President  [Hamid]  Karzai  by  the 
U.S."  Id.  at  46. 

13.  See  SHULTZ  &  DEW,  supra  note  7,  at  1 50-54,  for  an  excellent  description  of  the  tribal  sys- 
tem within  Afghanistan  and  the  critical  distinctions  within  and  between  tribes.  See  also  FARWELL, 
supra  note  1 1,  at  147-48. 

14.  Louis  Dupree,  Afghanistan  3 16  ( 1973),  as  cited  in  Briscoe  et  al.,  supra  note  8,  at  3. 


288 


W.  Hays  Parks 

15.  As  Loyn  (supra  note  1 1,  at  147)  notes: 

The  ability  of  Muslims  with  different  views  of  Jihad  and  various  political  ends  to  join 

against  a  common  enemy  would  have  profound  importance  when  the  frontier  again 

became  the  front  line,  a  crucible  of  violence,  in  the  conflict  that  began  in  the  late 

twentieth  century.  The  frontier  villages  in  Waziristan  and  Tirah  that  gave  the  best 

support  to  the  Taliban  and  the  foreign  fighters  in  al-Qaeda  were  the  same  ones  that  had 

supported  the  mujahidin  a  decade  before  in  the  US-backed  fight  against  the  Soviet 

Union,  and  had  been  the  quickest  to  rise  against  Britain  in  the  nineteenth  century — 

finding  common  cause  against  a  common  enemy — first  Britain,  later  the  USSR,  then 

the  US-led  invasion. 

Similarly,  STEPHEN  TANNER,  AFGHANISTAN:  A  MILITARY  HISTORY  FROM  ALEXANDER  THE 

GREAT  TO  THE  FALL  OF  THE  TALIBAN  243  (2002),  states:  "The  Soviet  invasion  achieved  that  rarity 

in  Afghanistan  history:  a  unifying  sense  of  political  purpose  that  cut  across  tribal,  ethnic, 

geographic,  and  economic  lines."  On  the  concept  in  general,  see  SHULTZ  &  DEW,  supra  note  7,  at 

154;  FARWELL,  supra  note  11,  at  5,  47,  153-54.  On  Afghanistan  and  its  history,  see  SHULTZ  & 

DEW,  supra  note  7,  at  151-54;  WALLER,  supra  note  11,  at  x;  LOYN,  supra  note  11,  at  145-47; 

BRISCOE  ET  AL.,  supra  note  8,  at  1 1 .  See  also  Anon.,  The  Liberation  ofMazar-e  Sharif:  5th  SF  Group 

Conducts  UW  [Unconventional  Warfare]  in  Afghanistan,  SPECIAL  WARFARE,  June  2002,  at  34, 

which  reports  with  respect  to  the  US  Special  Forces  experience: 

The  situation  on  the  ground  presented  challenges Although  the  major  factions  were 

united  in  their  opposition  to  the  Taliban,  they  had  significant  differences  with  each 
other,  and  they  felt  no  allegiance  to  anything  higher  than  their  own  party  or  ethnic 
group.  At  one  time  or  another  during  the  previous  decade,  the  groups  had  taken  up 
arms  against  one  another  or  supported  each  other's  rival  factions.  Although  none  of 
these  events  were  uncommon  in  internal  Afghan  politics,  they  created  a  significant  level 
of  distrust  between  the  factions  .... 

Id.  at  39.  The  anonymous  authors  are  members  of  5th  Special  Forces  Group. 

16.  SHULTZ  &  DEW,  supra  note  7,  at  59. 

17.  Id.  at  62,  quotinglOAN  M.  LEWIS,  A  PASTORAL  DEMOCRACY  27  (1999).  Professor  Toman 
recognizes  this  with  respect  to  the  Taliban,  acknowledging,  "Knowledgeable  experts  consider  the 
Taliban's  armed  forces  were  not  comparable  to  an  organized  army,  since  they  had  no  strategic 
military  plans,  or  decision- making  power  and  they  resorted  to  guerrilla  tactics."  Toman,  supra 
note  3,  at  284. 

18.  Peter  Hopkirk,  The  Great  Game  (1992);  Tanner,  supra  note  15,  at  129-54;  Waller, 
supra  note  1 1,  at  x;  FARWELL,  supra  note  1 1,  at  153-54;  LOYN,  supra  note  1 1,  at  145-47;  BRISCOE 
ET  AL.,  supra  note  8,  at  34. 

19.  RASHID,  supra  note  1 1 ,  at  9-1 0;  LOYN,  supra  note  1 1 ,  at  xxxvii,  249;  FURY,  supra  note  1 1 , 
at  105-06,  124,  129,  139;  Anon.,  supra  note  15,  at  38.  An  example  is  General  Abdul  Rashid 
Dostum,  who 

rose  to  power  after  the  Soviet  invasion  in  1979,  forming  a  militia  made  up  mainly  of 
Uzbeks,  who  had  grown  to  respect  his  leadership  supporting  union  workers  in  the  oil 
fields.  He  supported  the  communist-run  government  in  Kabul  until  1992,  when  he  flip- 
flopped  and  joined  his  former  opponent  Ahmad  Shah  Massoud.  Mr.  Massoud,  known 
as  the  "Panshjer  Lion"  and  head  of  the  Northern  Alliance,  convinced  Gen.  Dostum  that 
the  communists  were  losing  ground  and  that  he  should  fight  for  the  winning  side —  In 
1994,  Gen.  Dostum  again  switched  sides,  joining  Gulbuddin  Hekmatyar,  a  mujahadeen 
accused  of  fighting  his  own  people  more  than  the  Soviets  and  who  is  now  wanted  by  the 


289 


Combatants 


U.S.  for  supporting  al  Qaeda  and  the  Taliban. . . .  Gen.  Dostum's  decision  to  join  Mr. 
Hekmatyar  was  a  major  factor  in  the  collapse  of  a  government  led  by  Burhanuddin 
Rabbani  and  Mr.  Massoud.  Yet,  less  than  two  years  later,  Gen.  Dostum  switched  again, 
realigning  with  Mr.  Rabbani  and  Ismail  Khan,  the  warlord  from  Herat,  to  fight  the 
ascendant  Taliban  regime.  However,  Gen.  Dostum  was  betrayed  by  one  of  his  own 
commanders,  who  sided  with  the  Taliban.  The  general  fled  to  Turkey  in  fear  for  his  life. 

Gen.  Dostum  returned  in  April  2001  at  the  urging  of  Mr.  Massoud  and  reconstituted  his 
militia  to  attack  the  Taliban  in  the  north. 

Sara  A.  Carter,  The  Art  of  a  Warlord:  Flip -flopping  General  a  Mixed  Blessing  to  U.S.  in  Afghanistan, 
Washington  Times,  Oct.  12, 2008,  at  4-5.  See  also  Briscoe  et  al.,  supra  note  8,  at  2, 95;  Coll, 

supra  note  1 1,  at  234,  236,  348. 

20.  Readers  with  greater  curiosity  or  interest  would  benefit  from  SHULTZ  8c  Dew,  supra  note 
7,  at  159-66;  FARWELL,  WALLER  and  LOYN,  each  supra  note  11;  HOPKIRK,  supra  note  18;  and 
Tanner,  supra  note  15,  at  129-54. 

21.  LOYN,  supra  note  1 1,  at  23;  SCHEUER,  supra  note  7,  at  1 13;  RASHID,  supra  note  1 1,  at  54. 
These  footpaths  afforded  al-Qaeda  leader  Usama  bin  Laden,  his  forces  and  Taliban  the  opportu- 
nity to  enter  Pakistan,  evading  capture  in  late  2001;  FURY,  supra  note  1 1,  at  277-78;  TANNER,  su- 
pra note  15,  at  218-19. 

22.  See  SHULTZ  8c  DEW,  supra  note  7,  at  166:  "The  British  presence  in  Afghanistan  had  an 
important  impact  on  the  modern  state  of  Afghanistan  because  the  British  left  a  legacy  of  political 
boundaries  based  on  their  strategic  interests  rather  than  on  the  historical  location  of  tribal  peo- 
ples." Similarly,  RASHID,  supra  note  11,  at  187,  describes  the  Durand  Line  as  "the  disputed 
boundary  line  between  the  two  countries  [Pakistan  and  Afghanistan]  created  by  the  British  and 
which  no  Afghan  regime  has  recognized."  Interpretations  are  being  offered  today  by  Afghan 
Pashtun  nationalists  that  the  Durand  Line  agreement  is  good  for  only  one  hundred  years;  LOYN, 
supra  note  11,  at  145-47,  167,  182. 

23.  BRISCOE  ET  AL.,  supra  note  8,  at  8-9. 

24.  Disregarding  Afghan  culture,  the  PDPA  attempted  to  impose  communist  agricultural 
redistribution  measures  contrary  to  the  long-standing  clan  and  tribal  system,  providing  another 
point  for  resistance  to  the  regime;  LOYN,  supra  note  1 1,  at  184. 

25.  Id.  at  188-93;  SHULTZ  8c  DEW,  supra  note  7,  at  167-68. 

26.  GEORGE  CRILE,  CHARLIE  WILSON'S  WAR  (2003),  and  the  very  entertaining  2008  movie 
of  the  same  name.  See  also  RUSSIAN  GENERAL  STAFF,  THE  SO  VIET- AFGHAN  WAR  (Lester  W. 
Grau  8c  Michael  A.  Gress  trans.,  2002);  COLL,  supra  note  11;  SHULTZ  8c  DEW,  supra  note  7,  at 
168-76;  and  LOYN,  supra  note  1 1,  at  194-207. 

27.  SHULTZ  8c  DEW,  supra  note  7,  at  177-79,  identify  and  describe  in  detail  four  major  fac- 
tions as  the  mujahidin  who  allied  themselves  to  fight  the  Soviets:  "( 1 )  fundamentalist  Sunni  cler- 
ics, (2)  moderate  and  radical  Sunni  Islamists  affiliated  with  the  Muslim  Brothers,  (3)  Wahhabis, 
and  (4)  Shi'ia  Islamists,"  citing  OLIVIER  ROY,  AFGHANISTAN:  FROM  HOLY  WAR  TO  CIVIL  WAR 
43-46  (1995).  Nonetheless  the  war  lasted  almost  a  decade  in  part  owing  to  factional  differences 
within  the  mujahidin,  illustrating  again  the  primacy  of  tribal  loyalties;  LOYN,  supra  note  11,  at 
202.  The  term  mujahidin  has  been  traced  to  the  holy  man  and  "religious  adventurer"  Sayyid 
Ahmed  Shah  Brelwi,  who  returned  from  a  pilgrimage  to  Mecca  to  preach  war  against  infidels. 
Forming  a  sect  called  Mujahidin,  he  and  his  followers  captured  Peshawar  in  1829.  He  was  killed 
in  183 1 .  The  sect  continued,  but  mujahidin  eventually  evolved  into  a  term  to  describe  indigenous 
fighters.  FARWELL,  supra  note  11,  at  150.  In  the  war  against  Soviet  occupation,  the  mujahidin 
were  not  limited  to  Afghan  resistance  but  included  volunteers  from  Chechnya  and  most  Arab 
nations. 


290 


W.  Hays  Parks 

28.  CRILE,  supra  note  26,  at  504;  SHULTZ  8c  DEW,  supra  note  7,  at  171, 176;  and  COLL,  supra 
note  1 1,  at  185.  Shultz  and  Dew's  observation  that  "[t]he  Red  Army's  . . .  conventional  military 
doctrine  and  analysis  was  of  no  help  in  analyzing  or  righting  the  asymmetrical  guerrilla  tactics  of 
a  traditional  tribal  culture"  (supra  note  7,  at  149)  applies  equally  well  to  the  US  Army  in  the 
Vietnam  War  and,  more  recently,  in  the  first  four  years  of  Operation  Iraqi  Freedom  as  it  failed  to 
recognize  it  was  faced  with  an  insurgency,  seeking  to  apply  and  unsuccessfully  applying  conven- 
tional war  tactics  against  its  "asymmetrical"  threat,  then  waited  until  it  had  written  and  pub- 
lished new  doctrine  jointly  with  the  Marine  Corps  before  beginning  to  conduct 
counterinsurgency  operations.  For  a  critique  of  the  Army  in  the  Vietnam  War  and  the  Iraq  con- 
flict that  began  in  2003,  see  JOHN  A.  NAGL,  COUNTERINSURGENCY  LESSONS  FROM  MALAYA  AND 
VIETNAM:  LEARNING  TO  EAT  SOUP  WITH  A  SPOON  (2002).  The  new  doctrine  is  contained  in 
Headquarters,  Department  of  the  Army  8c  Headquarters,  Marine  Corps  Combat  Development 
Command,  FM  3-24/MCWP  3-33.5,  Counterinsurgency  (2006).  The  same  failure  to  properly 
assess  the  situation  occurred  with  regard  to  the  Bush  administration's  rationale  for  its  determi- 
nation as  to  the  legal  status  of  the  Taliban,  discussed  infra. 

29.  LOYN,  supra  note  1 1,  at  208. 

30.  RASHID,  supra  note  1 1,  at  32-33;  BRISCOE  ET  AL.,  supra  note  8,  at  19;  LOYN,  supra  note  1 1, 
at  182,  238-39;  SHULTZ  8c  DEW,  supra  note  7,  at  177-78;  COLL,  supra  note  11,  at  283-84. 

3 1 .  LOYN,  supra  note  1 1 ,  at  2 1 5. 

32.  RASHID,  supra  note  11,  at  9-10;  HUMAN  RIGHTS  WATCH,  AFGHANISTAN:  THE  FOR- 
GOTTEN War,  Human  Rights  Abuses  and  Violations  of  the  Law  of  War  Since  Soviet 
WITHDRAWAL  (1991).  LOYN,  supra  note  11,  at  114,  observes: 

Of  all  of  the  foreign  attempts  to  control  Afghanistan  in  the  two  centuries  after  [British 
envoy  Mounstuart]  Elphinstone's  first  meeting  in  1808,  the  Soviet  invasion  in  1979  was 
the  one  that  came  closest  to  success.  And  when  the  Soviet-backed  government  finally 
crumbled,  the  disunity  of  the  forces  that  had  ousted  it  flared  into  open  civil  war.  Power 
had  spun  out  of  Kabul,  and  could  not  be  drawn  back.  In  Afghanistan  imposing  power 
from  the  center  has  always  been  temporary — like  gathering  together  sand  or  water — 
since  local  loyalty  outweighs  any  other. 

See  also  SHULTZ  8c  DEW,  supra  note  7,  at  179-80;  COLL,  supra  note  1 1,  at  262-63. 

33.  LOYN,  supra  note  11,  at  211-46,  253-54.  In  the  1994  battle  for  Kabul,  Najibullah  was 
forcibly  taken  by  the  Taliban  from  the  United  Nations  compound  in  Kabul  where  he  sought  asy- 
lum in  1972.  He  and  his  brother  were  tortured  and  castrated  before  being  hanged.  BRISCOE  ET 
AL.,  supra  note  8,  at  95;  COLL,  supra  note  1 1,  at  333;  HOLT,  supra  note  1 1,  at  44. 

34.  Rabbani  remained  the  recognized  ruler  of  Afghanistan,  entitled  to  Afghanistan's  seat  in 
the  United  Nations  during  the  Taliban  period.  He  formally  handed  over  power  to  an  interim 
government  headed  by  Hamid  Karzai  on  December  22,  2001.  See  Burhanuddin  Rabbani, 
GLOBALSECURITY.ORG,  http://globalsecurity.org/military/world/afghanistan/rabbani.htm  (last 
visited  Feb.  27).  RASHID,  supra  note  11,  at  10,  observes: 

Afghanistan  was  in  a  state  of  virtual  disintegration  just  before  the  Taliban  emerged  at 
the  end  of  1994.  The  country  was  divided  into  warlord  fiefdoms  and  all  the  warlords 
had  fought,  switched  sides  and  fought  again  in  a  bewildering  array  of  alliances,  betrayals 
and  bloodshed.  The  predominantly  Tajik  government  of  President  Burhanuddin 
Rabbani  controlled  Kabul,  its  environs  and  the  north-east  of  the  country,  while  three 
provinces  in  the  west  centring  on  Herat  were  controlled  by  Ismael  Khan.  In  the  east  on 
the  Pakistan  border  three  Pashtun  provinces  were  under  the  independent  control  of  a 
council  or  Shura  (Council)  of  Mujaheddin  commanders  based  in  lalalabad.  A  small 
region  to  the  south  and  east  of  Kabul  was  controlled  by  Gulbuddin  Hikmetyar. 

291 


Combatants 


In  the  north  the  Uzbek  warlord  General  Rashid  Dostum  held  sway  over  six  provinces 
and  in  January  1994  he  had  abandoned  his  alliance  with  the  Rabbani  government  and 
joined  with  Hikmetyar  to  attack  Kabul.  In  central  Afghanistan  the  Hazaras  controlled 
the  province  of  Bamiyan.  Southern  Afghanistan  and  Kandahar  were  divided  up  amongst 
dozens  of  petty  ex-Mujaheddin  warlords  and  bandits  who  plundered  the  population  at 
will.  With  the  tribal  structure  and  the  economy  in  tatters,  no  consensus  on  a  Pashtun 
leadership  and  Pakistan's  unwillingness  to  provide  military  aid  to  the  Durranis  as  they 
did  to  Hikmetyar,  the  Pashtuns  in  the  south  were  at  war  with  each  other. 

35.  RASHID,  supra  note  1 1,  at  90-92.  See  also  SHULTZ  &  DEW,  supra  note  7,  at  180-81. 

36.  SHULTZ  &  DEW,  supra  note  7,  at  86, 208, 235-36.  Not  all  Taliban  were  Pashtun,  nor  were 
all  Pashtun  aligned  with  the  Taliban.  For  example,  Afghanistan's  President,  Hamid  Karzai,  is 
Pashtun.  Dr.  Stephen  Biddle's  excellent  study  of  Operation  Enduring  Freedom  identified  three 
major  components  of  enemy  fighters  facing  the  US-led  coalition:  (a)  native  Afghan  Taliban,  (b) 
predominantly  foreign  al-Qaeda  and  (c)  non-al-Qaeda  foreign  allies  of  the  Taliban.  BlDDLE,  supra 
note  8,  at  13.  For  law  of  war  purposes  and  as  will  be  explained,  only  two  categories  existed:  al- 
Qaeda  and  Taliban,  and  in  cases  where  al-Qaeda  served  with  or  led  Taliban  elements,  arguably 
only  one. 

37.  SHULTZ  &  DEW,  supra  note  7,  at  238. 

38.  Id.  at  236. 

39.  LOYN,  supra  note  1 1,  at  239  [emphasis  provided].  In  this  regard,  see  the  quotation  from 
LEWIS,  supra  note  17. 

40.  RASHID,  supra  note  1 1,  at  39,  53,  59.  Dr.  Biddle  notes,  "The  Afghan  Taliban  were  often 
poorly  trained  soldiers.  Many  had  little  or  no  formal  military  instruction,  and  Afghan  ranks 
swelled  and  shrank  with  the  seasons  and  the  fortunes  of  war  as  troops  went  home  to  their  villages 
or  took  up  arms  depending  on  the  crop  cycle  and  apparent  military  need."  BlDDLE,  supra  note  8, 
at  15.  See  also  Anon.,  supra  note  15,  at  36: 

Few  of  the  factional  commanders,  at  any  level,  possessed  any  experience  in  the  conduct 
of  large  coordinated  offensives.  Most  were  extremely  proficient  at  performing  small- 
unit  actions.  But  combining  their  forces  (three  separate  and  distinct  major  formations 
and  numerous  subordinate  commands)  into  a  coordinated  offensive  under  one  major 
formation  was  clearly  uncharted  territory  and  a  distinct  challenge. 

On  the  Afghan  practice  of  switching  sides,  the  article  continues: 

The  Afghan  tradition  of  surrender  and  transfer  of  loyalty  is  not  unlike  what  the  US 
experienced  during  the  Civil  War  [1861-65],  with  prisoner  exchanges,  paroles  and 
pardons.  The  Afghans,  in  keeping  with  their  custom,  expect  soldiers  who  have 
surrendered  to  abide  by  the  conditions  of  their  surrender  agreement  and  to  behave 
honorably.  But  the  vast  numbers  of  Arabs,  Pakistanis,  Chechens,  Uighers  and  other 
foreign  nationals  who  were  members  of  al-Qaeda  ignored  the  Afghan  custom.  They 
used  individual  surrenders  as  a  means  of  furthering  their  cause,  often  creating 
treacherous  conditions. 

Id.  at  38. 

41.  SHULTZ  &  DEW,  supra  note  7,  at  253. 

42.  RASHID,  supra  note  1 1,  at  52-53. 

43.  Mat  54. 

44.  COLL,  supra  note  1 1,  at  349. 

45.  Id. 


292 


W.  Hays  Parks 

46.  Id.  at  475-76;  LOYN,  supra  note  1 1,  at  259-62;  RASHID,  supra  note  1 1,  at  26,  28-29,  39, 
44-45,  52-53;  SCHEUER,  supra  note  7,  at  111,  113. 

47.  COLL,  supra  note  1 1,  at  349. 

48.  Id.  at  445-46  comments  on  the  rationale  for  UAE  recognition: 

One  of  the  most  passionate  hunters  was  Sheikh  Khalifa  bin  Zayed  al-Nahayan,  the 
billionaire  crown  prince  of  Abu  Dhabi  in  the  United  Arab  Emirates.  .  .  .  Scores  of 
equally  rich  U.A.E.  notables  flew  to  Pakistan  each  season  to  hunt.  So  entrenched  did  the 
alliance  with  Pakistan  around  houbara  hunts  become  that  the  Pakistani  air  force  agreed 
secretly  to  lease  one  of  its  northern  air  bases  to  the  [UAE]  so  that  the  sheikhs  could  more 
conveniently  stage  the  aircraft  and  supplies  required  for  their  hunts.  Pakistani 
personnel  maintained  the  air  base,  but  the  U.A.E.  paid  for  its  upkeep.  They  flew  in  and 
out  on  C-130s  and  on  smaller  planes  that  could  reach  remote  hunting  grounds. 

Some  of  the  best  winter  houbara  grounds  were  in  Afghanistan.  Pakistani  politicians  had 
hosted  Arab  hunting  trips  there  since  the  mid-1990s.  They  had  introduced  wealthy 
sheikhs  to  the  leadership  of  the  Taliban,  creating  connections  for  future  finance  of  the 
Islamist  militia.  Bin  Laden  circulated  in  this  Afghan  hunting  world  after  he  arrived  in 
the  country  in  1996.  So  the  CIA  report  that  he  had  joined  a  large,  stationary  camp  in 
western  Afghanistan  that  winter  seemed  consistent  with  previous  reporting  about  bin 
Laden. 

The  UAE's  Afghanistan  western  hunting  camp  played  a  key  part  in  target  selection  for  the  August 
20,  1998  US  cruise-missile  strike  against  al-Qaeda  training  camps  in  response  to  the  al-Qaeda 
attacks  on  the  US  embassies  in  Nairobi  and  Dar  es  Salaam,  discussed  infra.  Despite  its 
relationship  with  the  Taliban,  the  UAE  royal  family  was  cooperative  with  US  planners  in 
providing  information  to  facilitate  identification  of  the  royal  family  western  Afghan  hunting 
camp,  while  disavowing  its  use  by  al-Qaeda  leader  Usama  bin  Laden.  Id.  at  448-49. 

49.  RASHID,  supra  note  1 1,  at  251  n.4. 

50.  BRISCOE  ET  AL.,  supra  note  8,  at  21;  LOYN,  supra  note  1 1,  at  257-58. 

5 1 .  BRISCOE  ET  AL.,  supra  note  8,  at  2 1 . 

52.  Id.;  RASHID,  supra  note  1 1,  at  5, 44-45, 52-53, 58, 61-63, 72-73, 80, 188-89;  COLL,  supra 
note  11,  at  349. 

53.  COLL,  supra  note  1 1,  at  350-51;  see  also  RASHID,  supra  note  1 1,  at  64-66.  The  principal 
pro-Taliban  proponent  within  the  former  Afghanistan  embassy,  Seraj  Jamal,  left  Washington  for 
New  York  to  be  the  Taliban's  unofficial  (unrecognized)  delegation  at  the  United  Nations;  COLL, 
supra,  at  351. 

54.  The  government  of  President  Burhanuddin  Rabbani  continued  to  hold  Afghanistan's 
United  Nations  seat  during  the  Taliban  period. 

55.  BRISCOE  ET  AL.,  supra  note  8,  at  95. 

56.  RASHID,  supra  note  1 1,  at  64-74;  LOYN,  supra  note  1 1,  at  253-54;  BRISCOE  ET  AL.,  supra 
note  8,  at  22;  HUMAN  RIGHTS  WATCH,  AFGHANISTAN:  THE  MASSACRE  IN  MAZAR-I-SHARIF 
(1998).  Taliban  actions  prompted  European  Union  suspension  of  all  humanitarian  aid  to  areas 
of  Afghanistan  controlled  by  the  Taliban.  RASHID,  supra,  at  72.  The  Human  Rights  Watch  report 
contains  a  minor  error  in  interchangeably  referring  to  Taliban  conduct  in  Mazar-i-Sharif  as  acts 
of  "reprisal"  or  "revenge"  for  Taliban  losses  in  its  unsuccessful  1997  battle  for  Mazar-i-Sharif. 
The  terms  are  not  synonymous,  with  the  former  having  a  very  specific  meaning  in  the  law  of  war. 
Although  there  may  be  questions  as  to  whether  the  full  range  of  protections  against  reprisal  was 
applicable  in  Afghanistan's  civil  war,  nonetheless  the  basic  preconditions  for  executing  reprisal 
did  not  exist.  See  FRITS  KALSHOVEN,  BELLIGERENT  REPRISALS  339-44  (1971).  The  present  au- 
thor has  identified  the  following  criteria  for  a  reprisal: 

293 


Combatants 


1 .  A  reprisal  is  an  act  which  would  be  unlawful  if  not  committed  for  the  purpose  of  a 
reprisal. 

2.  It  must  be  done  for  the  purpose  of  compelling  the  other  belligerent  to  observe  the 
law  of  war. 

3.  It  must  not  be  done  before  other  means  have  been  reasonably  exhausted. 

4.  It  may  be  executed  only  on  the  express  order  of  higher  authority. 

5.  It  must  be  committed  against  persons  or  objects  whose  attack  as  a  reprisal  is  not 
otherwise  prohibited. 

6.  It  must  be  proportional  to  the  original  wrong. 

W.  Hays  Parks,  A  Few  Tools  in  the  Prosecution  of  War  Crimes,  149  MILITARY  LAW  REVIEW  73, 84 
(1995).  See  also  UNITED  KINGDOM  MINISTRY  OF  DEFENCE,  THE  MANUAL  OF  THE  LAW  OF 
ARMED  CONFLICT  65, 1f  5.18  and  418-19,  ffl|  16.16,  16.17  (2004)  [hereinafter  UK  MANUAL].  As 
noted  in  this  author's  article,  the  term  "reprisal"  often  is  misused  when  other  terms,  such  as 
"retaliation,"  "retorsion"  or  even  "lawful  attack  of  a  military  objective,"  might  be  more  accurate. 
In  the  case  of  Taliban  conduct  in  1998  in  Mazar-i-Sharif,  the  substantial  delay  between  anti- 
Taliban  forces  in  1997's  and  Taliban  actions  does  not  suggest  its  actions  were  taken  "for  the 
purpose  of  compelling  the  other  belligerent  to  observe  the  law  of  war,"  but  were  more  in  line 
with  tribal  acts  of  revenge  in  blood  feuds.  See  SHULTZ  &  DEW,  supra  note  11,  at  157.  In  this 
respect  Taliban  actions  manifest  the  distinction  between  a  "soldier"  and  a  "warrior"  made  by 
Professor  Hugh  Turney-High  in  his  classic  PRIMITIVE  WAR  149-52  (1949)  in  describing  the 
revenge  mode  of  a  warrior,  a  trait  discussed  in  the  context  of  Somalia  and  Afghanistan  in  SHULTZ 
&  DEW,  supra,  at  5-7,  57-100,  147-95. 

57.  RASHID,  supra  note  1 1,  at  75;  BERNTSEN  &  PEZZULO,  supra  note  8,  at  1-27;  COLL,  supra 
note  11,  at  403-05. 

58.  COLL,  supra  note  1 1,  at  41 1. 

59.  LOYN,  supra  note  1 1 ,  at  267.  US  State  Department  officials  met  with  Taliban  leader  Mul- 
lah Omar,  requesting  that  he  turn  over  Usama  bin  Laden.  A  quid  pro  quo  of  US  recognition  of  the 
Taliban  in  return  for  the  Taliban  to  turn  bin  Laden  over  to  it  did  not  materialize;  COLL,  supra 
note  1 1,  at  430;  BRISCOE  ET  AL.,  supra  note  8,  at  24. 

60.  RASHID,  supra  note  1 1,  at  76;  COLL,  supra  note  1 1,  at  548-49. 

61.  S.C.  Res.  1214,  U.N.  Doc.  S/RES/1214  (Dec.  8,  1998),  discussed  infra. 

62.  RASHID,  supra  note  1 1,  at  77.  UAE  recognition  had  been  token  at  best.  As  Rashid  notes, 
following  Saudi  withdrawal  from  Afghanistan  and  its  dealings  with  the  Taliban,  Pakistan  re- 
mained the  Taliban's  sole  financial  provider.  Id. 

63.  S.C.  Res.  1333,  U.N.  Doc.  S/RES/1333  (Dec.  19, 2000);  S.C.  Res.  1363,  U.N.  Doc.  S/RES/ 
1363  (July  30,  2001). 

64.  Rashid  reports: 

Not  surprisingly,  Iran,  Turkey,  India,  Russia  and  four  of  the  five  Central  Asian 
Republics — Uzbekistan,  Kazakhstan,  Kyrgyzstan  and  Tajikistan — have  backed  the 
anti-Taliban  Northern  Alliance  with  arms  and  money  to  try  and  halt  the  Taliban's 
advance.  In  contrast  Pakistan  and  Saudi  Arabia  have  backed  the  Taliban.  .  .  .  The 
Taliban  victories  in  northern  Afghanistan  in  the  summer  of  1998  ...  set  in  motion  an 
even  fiercer  regional  conflict  as  Iran  threatened  to  invade  Afghanistan  and  accused 
Pakistan  of  supporting  the  Taliban. . . . 

RASHID,  supra  note  1 1,  at  5. 

65.  Id.  at  80;  COLL,  supra  note  1 1,  at  513-15;  Report  of  the  Secretary-General  on  the  human- 
itarian implications  of  the  measures  imposed  by  the  Security  Council  resolutions  1267  (1999) 


294 


W.  Hays  Parks 

and  1333  (2000)  on  Afghanistan  2-8,  U.N.  Doc.  S/2001/695  (July  13,  2001).  See  also  The 
situation  in  Afghanistan  and  its  implications  for  international  peace  and  security:  Report  of  the 
Secretary-General  4,  5-9,  particularly  If  25,  U.N.  Doc.  A/55/907-S/200 1/384  (Apr.  19, 2001)  (re- 
porting on  the  Secretary- General's  visit  to  South  Asia),  which  refers  to  "fighting  throughout  Af- 
ghanistan," belying  media  assertions  that  the  Taliban  controlled  as  much  as  80  percent  of 
Afghanistan.  So,  too,  does  the  Secretary-General's  July  13, 2001  report,  which  states,  "All  regions 
of  the  country,  with  the  exception  of  the  southern  [Pashtun]  region,  now  include  active  conflict 
zones."  Supra,  1 48. 

66.  U.N.  Doc.  A/55/907-S/200 1/384,  supra  note  65;  U.N.  Doc.  S/2001/695,  supra  note  65. 
Within  Afghanistan,  the  Taliban  did  not  enjoy  popular  support.  BlDDLE,  supra  note  8,  at  16. 
Continuing,  Dr.  Biddle  notes  that  the  Taliban  was  (a)  poorly  trained,  (b)  had  poor  morale  and 
(c)  had  a  cultural  willingness  to  defect.  Id.  at  13. 

67.  See,  e.g.,  S.C.  Res.  1267,  U.N.  Doc.  S/RES/1267  (Oct.  15,  1999),  demanding  that  "the 
Taliban  turn  over  Usama  bin  Laden  without  further  delay  to  appropriate  authorities  in  a  country 
where  he  has  been  indicted,"  and  further  actions  by  UN  members,  which  refer  only  to  "the 
Taliban."  See  also  S.C.  Res.  1333,  supra  note  63,  which  refers  to  "areas  of  Afghanistan  under  the 
control  of  the  Afghan  faction  known  as  Taliban,  which  also  calls  itself  the  Islamic  Emirate  of  Af- 
ghanistan (hereinafter  known  as  the  Taliban)";  S.C.  Res.  1363,  supra  note  63,  refers  to  "States 
bordering  the  territory  of  Afghanistan  under  Taliban  control."  U.N.  Doc.  A/55/907-S/200 1/384, 
supra  note  65,  reporting  on  the  Secretary-General's  visit  to  South  Asia  and  his  meeting  with 
Taliban  Foreign  Minister  Wakil  Ahmad  Mutawakkil,  refers  to  the  Taliban  only  and  not  as  the 
Taliban  "regime,"  much  less  as  the  government  of  Afghanistan. 

68.  S.C.  Res.  1368,  U.N.  Doc.  S/RES/1368  (Sept.  12,  2001). 

69.  Northern  Alliance  warlords  Dostum  and  Atta  Mohammed  renewed  offensive  operations 
one  day  later;  BlDDLE,  supra  note  8,  at  8-10. 

70.  BRISCOE  ET  AL.,  supra  note  8,  at  188-89;  FURY,  supra  note  11,  at  275.  Biddle  states  that 
"[o]n  the  night  of  December  6,  Mullah  Omar  and  the  senior  Taliban  leadership  fled  the  city 
[Kandahar]  and  went  into  hiding,  ending  Taliban  rule  in  Afghanistan,"  then  continues: 

Allied  forces  subsequently  tracked  a  group  of  al  Qaeda  survivors  thought  to  include 
Osama  bin  Laden  to  a  series  of  redoubts  in  the  White  Mountains  near  Tora  Bora.  The 
redoubts  were  taken  in  a  16-day  battle  ending  on  December  17,  but  many  al  Qaeda 
defenders  escaped  death  or  capture  and  fled  across  the  border  into  Pakistan. 

BlDDLE,  supra  note  8,  at  1 1. 

71.  BRISCOE  ET  AL.,  supra  note  8,  at  203-16;  generally,  SEAN  NAYLOR,  NOT  A  GOOD  DAY  TO 
DIE  (2005)  and  PETE  BLABER,  THE  MISSION,  THE  MEN,  AND  ME  262-95  (2008),  describing  Op- 
eration Anaconda,  March  2-13, 2002.  Taliban  restoration  and  resurgence  and  the  present  situa- 
tion in  Afghanistan  are  beyond  the  scope  of  this  article.  As  noted,  this  article  considers  the  status 
of  the  Taliban  from  the  time  of  commencement  of  US  military  operations  on  October  20,  2001, 
to  February  7,  2002,  when  President  George  W.  Bush  issued  his  memorandum  concerning  the 
law  of  war  status  of  captured  al-Qaeda  and  Taliban.  The  issue  of  treatment  of  captured  al-Qaeda 
and  Taliban  is  the  subject  of  separate  articles  in  this  volume  by  Stephane  Ojeda,  Matthew 
Waxman  and  Ryan  Goodman. 

72.  Captured  aircraft,  tanks  and  anti-aircraft  equipment  had  become  inoperable  due  to  the 
Taliban's  inability  to  maintain  them.  In  disbanding  the  PDPA  army,  the  Taliban  also  disbanded 
the  PDPA  units  responsible  for  their  maintenance  and  operation.  BLABER,  supra  note  7 1 ,  at  1 6 1 . 

73.  David  Loyn  offers  this  following  anecdote  related  to  the  Taliban's  Mullah  Omar  and  his 
refusal  to  accept  the  basic  obligations  of  UN  membership: 


295 


Combatants 


The  UN  made  an  effort  to  engage  with  the  new  administration,  taking  a  copy  of  the  UN 
Charter  translated  into  Pashtu  to  Kandahar  to  show  the  Taliban  what  it  meant  to  be  a 
country.  An  envoy  went  through  it  page  by  page,  sitting  cross-legged  on  the  ground,  as 
he  was  asked  what  it  meant  when  it  talked  of  "human  rights  and  fundamental  freedoms 
for  all,  without  distinction  as  to  race,  sex,  language  or  religion."  But  Mullah  Omar 
refused  to  meet  the  UN  envoy  then  or  at  any  other  time. 

LOYN,  supra  note  1 1,  at  253. 

74.  Id.  at  22-23;  see  also  IAN  BROWNLIE,  PRINCIPLES  OF  PUBLIC  INTERNATIONAL  LAW  66-67 
(1966). 

75.  GOLDMAN  &  TlTTEMORE,  supra  note  3,  at  24  n.84. 

76.  The  Taliban  was  not  alone  in  its  failure  to  follow  the  law  of  war  in  Afghanistan's  civil  war, 
a  point  acknowledged  by  Colonel  John  Mulholland,  5th  Special  Forces  Group  commander,  in 
advising  his  command  that "  [n] o  one  [the  Afghan  warlords]  here  is  clean."  BRISCOE  ET  AL.,  supra 
note  8,  at  95.  This  demonstrates  this  author's  earlier  point  of  a  distinction  between  legal  applica- 
bility of  law  of  war  treaties  and  application  in  fact. 

77.  Charles  Cheney  Hyde,  I  International  Law  Chiefly  as  Interpreted  and  Applied 
by  the  United  States  158-59  (2d  rev.  ed.  1951). 

78.  Id.  at  159-60. 

79.  Id.  at  156-57. 

80.  Regulations  Respecting  the  Laws  and  Customs  of  War  on  Land,  Annex  to  Hague  Con- 
vention No.  IV  Respecting  the  Laws  and  Customs  of  War  on  Land  art.  43,  Oct.  18, 1907, 36  Stat. 
2227,  reprinted  in  THE  LAWS  OF  ARMED  CONFLICTS,  supra  note  1,  at  66  (emphasis  provided) 
[hereinafter  Hague  IV  Annex].  See  also  LASSA  OPPENHEIM,  II  INTERNATIONAL  LAW,  DISPUTES, 
WAR  AND  NEUTRALITY  434-45,  §  167  (Hersch  Lauterpacht  ed.,  7th  ed.  1952)  [hereinafter 
LAUTERPACHT], 

81.  Hague  IV  Annex,  supra  note  80,  art.  43. 

82.  SPAIGHT,  supra  note  4,  at  327;  UK  MANUAL,  supra  note  56,  at  275,  K  1 1.3,  states: 

To  determine  whether  a  state  of  occupation  exists,  it  is  necessary  to  look  at  the  area 
concerned  and  determine  whether  two  conditions  are  satisfied:  first,  that  the  former 
government  has  been  rendered  incapable  of  publicly  exercising  its  authority  in  that 
area;  and,  secondly,  that  the  occupying  power  is  in  a  position  to  substitute  its  own 
authority  for  that  of  the  former  government. 

Applying  by  analogy  this  test  to  the  Taliban,  while  the  Taliban  may  have  physically  occupied 
substantial  areas  of  Afghanistan,  persistent  resistance  to  the  Taliban — as  acknowledged  in  UN 
reports — precluded  it  from  meeting  the  second  part  of  the  test.  The  first  part  occurred  through 
the  meltdown  of  the  PDPA  between  1992  and  1994.  The  second  part  never  took  place. 

The  challenge  the  Taliban  faced  has  historical  precedent.  A  Russian  analysis  of  British  failures 
in  its  Second  Anglo-Afghan  War  concluded,  "English  commanders  understood  that  they  had 
not  gained  possession  of  all  these  strips  of  country  over  which  the  troops  had  passed,  but  only  of 
the  actual  ground  on  which  their  forces  were  encamped."  LOYN,  supra  note  1 1,  at  1 14.  This  was 
the  predicament  the  Taliban  faced  and  suggests  the  media's  failure  to  appreciate  the  distinction 
between  physical  presence  and  control  sufficient  to  govern. 

83.  Supra  note  65. 

84.  The  present  author  may  have  contributed  to  Professor  Toman's  conclusion  that  the 
Taliban  was  the  de  facto  government.  As  he  notes  in  his  article,  supra  note  3,  in  reply  to  an  e- 
mail  from  Professor  Toman,  the  present  author  stated,  "An  argument  might  be  made  that  the 
Taliban  was  the  de  facto  government  of  Afghanistan  until  early  October  2001,  as  it  occupied  80% 


296 


W.  Hays  Parks 

of  Afghanistan."  This  informal  response  was  based  entirely  on  media  reports,  as  the  present  au- 
thor had  not  been  involved  in  Operation  Enduring  Freedom  issues  or  had  access  to  official  re- 
ports or  analyses.  The  additional  information  obtained  in  research  for  and  presented  in  this 
article  presents  a  substantially  different  and  more  accurate  picture. 

Even  were  one  to  argue  that  at  the  time  of  Taliban  recognition  by  Pakistan,  Saudi  Arabia  and 
the  UAE  the  Taliban  was  the  de  facto  government,  Professor  Brownlie  notes  that "  [i]t  is  sometimes 
said  that  de  jure  recognition  is  irrevocable  while  de  facto  recognition  can  be  withdrawn." 
BROWNLIE,  supra  note  74,  at  87. 

85.  Aug.  12,  1949,  6  U.S.T.  3316,  T.I.A.S.  3364,  75  U.N.T.S.  135,  reprinted  in  THE  LAWS  OF 
ARMED  CONFLICTS,  supra  note  1,  at  507  [hereinafter  GPW  Convention].  This  section  is  derived 
from  W.  Hays  Parks,  Jus  in  Bello  in  the  Struggle  against  Terrorism,  in  LEGAL  ISSUES  IN  THE  STRUG- 
GLE AGAINST  TERROR  (John  Norton  Moore  &  Robert  Turner  eds.,  forthcoming). 

86.  See  U.S.  v.  Lindh,  212  F.  Supp.  2d  541,  552-58  (E.D.  Va.  2002). 

87.  The  just  war  tradition  is  an  historic  articulation  of  when  (Jus  ad  helium)  it  is  justifiable  for 
a  State  to  resort  to  arms,  and  what  {jus  in  hello)  use  of  force  is  legally  permissible.  See  JAMES 
Turner  Johnson,  Just  War  and  the  Restraint  of  War  ( 198 1 ). 

88.  Gerald  I.A.D.  Draper,  The  Status  of  Combatants  and  the  Question  of  Guerrilla  Warfare, 
BRITISH  YEAR  BOOK  OF  INTERNATIONAL  LAW  173, 176  (1971);  Gerald  I.A.D.  Draper,  The  Pres- 
ent Law  of  Comhatancy,  in  REFLECTIONS  ON  LAW  AND  ARMED  CONFLICTS:  THE  SELECTED 
Works  on  the  Laws  of  War  by  the  Late  Professor  Colonel  G.I.A.D.  Draper,  OBE  195 
(Michael  A.  Meyer  &  Hilaire  McCoubrey  eds.,  1998).  See  also  MAURICE  H.  KEEN,  THE  LAWS  OF 
War  in  the  Late  Middle  Ages  13-15, 69  et  seq.  (1965). 

89.  KEEN,  supra  note  88,  at  50. 

90.  The  classic  example  is  the  assassination  of  Archduke  Franz  Ferdinand,  heir  to  the  Aus- 
trian throne,  by  the  Slav  Gavrilo  Princip,  in  Sarajevo  on  June  28, 1914,  generally  regarded  as  the 
spark  that  ignited  World  War  I.  This  principle  is  made  clear  in  the  US  Constitution,  which  vests 
in  the  President  of  the  United  States  the  authority  to  act  as  commander  in  chief  of  US  armed 
forces  (Article  II,  §  2)  and  in  the  US  Congress  the  authority  to  raise  armies  and  navies  and  to  de- 
clare war  (Article  I,  §  8).  18  U.S.C.  §  960  (2000)  (Neutrality  Act)  makes  it  a  criminal  offense  for  a 
person  within  the  United  States  to  begin,  set  on  foot,  provide  for  or  prepare  "a  means  for  or  [fur- 
nish] the  money  for,  or  [take]  part  in,  any  military  or  naval  expedition  or  enterprise  to  be  carried 
on . . .  against  the  territory  or  dominion  of  any  foreign . . .  state . . .  with  whom  the  United  States  is 
at  peace . . . ."  See,  e.g.,  United  States  v.  Stephen  E.  Black  and  Joe  D.  Hawkins,  685  F.2d  132  (5th 
Cir.  1982),  a  case  in  which  US  citizens  were  convicted  of  violation  of  the  Neutrality  Act.  A  narra- 
tive history  of  the  case  is  STEWART  BELL,  BAYOU  OF  PIGS  (2008). 

91.  HYDE,  supra  note  77,  at  1692, 1797;  LAUTERPACHT,  supra  note  80,  at  203-05. 

92.  Additional  Protocol  I,  supra  note  1,  art.  51(3);  Additional  Protocol  II,  supra  note  1,  art. 
13(3). 

93.  Denial  of  quarter  includes  refusal  to  accept  an  offer  to  surrender  and  summary  execution 
upon  capture. 

94.  Mosby's  unit  operated  under  a  commission  issued  by  the  Governor  of  Virginia.  State 
commissions  were  a  practice  common  for  Union  and  Confederate  forces.  Receipt  and  retention 
of  a  governor's  commission  were  dependent  upon  a  unit  carrying  out  its  operations  in  uniform 
under  a  commander  responsible  for  its  actions,  and  compliance  with  the  law  of  war.  JEFFRY  D. 
WERT,  MOSBY'S  RANGERS  62-63,  69-71,  76,  77-78,  124,  151,  157  (1990). 

95.  Michael  Fellman,  Inside  War:  The  Guerrilla  Conflict  in  Missouri  During  the 
CIVIL  War  (1989),  describes  Quantrill's  actions  and  modus  operandi. 


297 


Combatants 


96.  See  RICHARD  HARTIGAN,  LlEBER'S  CODE  AND  THE  LAW  OF  WAR  2-16,  31-44,  56,  60 
(1983).  A  traditional  term  is  unprivileged  belligerent,  meaning  a  private  individual  not  entitled  to 
the  combatant's  privilege.  Other  commonly  used  terms  are  unprivileged  combatant  and  unlawful 
combatant.  The  term  adopted  by  the  Bush  administration — enemy  combatant — was  counter  to 
its  own  arguments,  as  it  incorrectly  equated  captured  Taliban  and  al-Qaeda  to  lawful  enemy 
combatants.  The  term  "unlawful  enemy  combatant"  is  potentially  misleading,  as  it  suggests  a 
member  of  regular  military  forces  of  a  government  may  be  denied  prisoner  of  war  status  because 
he  or  she  has  acted  in  a  manner  inconsistent  with  the  law  of  war  or  committed  other  criminal 
acts.  In  accordance  with  Article  85,  GPW,  a  pre-capture  offense  does  not  provide  a  basis  to  deny 
prisoner  of  war  status  to  an  individual  who  meets  any  of  the  categories  in  Article  4.  As  was  the 
case  with  many  law  of  war  decisions  by  Bush  administration  officials  during  the  period  in  ques- 
tion, "enemy  combatant"  was  selected  more  for  political  purposes  than  for  legal  accuracy. 

97.  As  used  in  Article  3,  "noncombatants"  refers  to  military  medical  personnel  and  chap- 
lains rather  than  civilians. 

98.  Named  for  its  sponsor,  Russian  delegate  Fyodor  Fyodorovich  Martens  (1845-1909). 

99.  The  debate  was  limited  to  a  form  of  extended  levee  en  masse  following  enemy  occupa- 
tion. A  private  citizen  who  took  up  arms  against  his  or  her  own  government  or  against  another 
government  with  which  his  or  her  nation  was  at  peace  remained  an  unprivileged  combatant. 

100.  Frits  Kalshoven,  Constraints  on  the  Waging  of  War  14  (1987).  Professor 
Kalshoven  notes  that  "[t]his  phrase,  although  formulated  especially  with  a  view  to  the  thorny 
problem  of  armed  resistance  in  occupied  territory,  has  acquired  a  significance  far  exceeding  that 
particular  problem."  Continuing,  he  says  that  "[i]t  implies  no  more  and  no  less  than  that,  no 
matter  what  States  may  fail  to  agree  upon,  the  conduct  of  war  will  always  be  governed  by  existing 
principles  of  international  law." 

101.  THE  LAWS  OF  ARMED  CONFLICTS,  supra  note  1 ,  at  70.  Article  2  providing  lawful  combat- 
ant status  to  members  of  a  levee  en  masse  was  amended  to  require  that  its  members  carry  their 
arms  openly  in  addition  to  respecting  the  laws  and  customs  of  war. 

102.  SPAIGHT,  supra  note  4,  at  37. 

103.  See  EARL  F.  ZlEMKE  &  MAGNA  E.  BAUER,  MOSCOW  TO  STALINGRAD:  DECISION  IN  THE 
EAST  199-219,  252-54,  330, 434-35  (rev.  ed.  1985). 

104.  Representative  histories  are  HENRI  MICHEL,  THE  SHADOW  WAR:  EUROPEAN 
RESISTANCE,   1939-1945  (Richard  Barry  trans.,   1972);  MICHAEL  R.D.  FOOT,  RESISTANCE: 

European  Resistance  to  Nazism,  1940-1945  (1977);  Jorgen  FLestrup,  Europe  ablaze 
(1978);  David  Stafford,  Britain  and  European  Resistance,  1940-1945  (1980);  Charles 
Cruickshank,  S.O.E.  in  the  Far  East  (1983);  William  Mackenzie,  The  Secret  History  of 
SOE:  The  Special  Operations  Executive,  1940-1945  (1948,  2000);  Francis  B.  Mills, 
Robert  Mills  &  John  W.  Brunner,  OSS  Operations  in  China  (2002).  The  present  author 
has  identified  organized  resistance  movements  authorized  by  exiled  governments  and  provided 
SOE  and  OSS  assistance  in  Albania,  Belgium,  Burma,  China,  Czechoslovakia,  Denmark,  Fin- 
land, France,  Greece,  Indo-China,  Italy,  Malaya,  Norway,  Poland,  Rumania,  Serbia,  Singapore, 
Sumatra,  Thailand  and  Yugoslavia. 

105.  Aug.  12,  1949,  6  U.S.T.  3114,  T.I.A.S.  3362,  75  U.N.T.S.  31,  reprinted  in  THE  LAWS  OF 
Armed  Conflicts,  supra  note  l,  at  459. 

106.  Aug.  12,  1949,  6  U.S.T.  3217,  T.I.A.S.  3363,  75  U.N.T.S.  85,  reprinted  in  THE  LAWS  OF 
ARMED  CONFLICTS,  supra  note  1,  at  485. 

107.  Supra  note  85. 

108.  Aug.  12,  1949,  6  U.S.T.  3516,  T.I.A.S.  3365,  75  U.N.T.S.  287,  reprinted  in  THE  LAWS  OF 
Armed  Conflicts,  supra  note  l,  at  575. 


298 


W.  Hays  Parks 

109.  The  absence  of  treaty  protection  for  civilian  medical  facilities  and  transport  and 
wounded,  sick  or  shipwrecked  civilians  was  corrected  in  the  1977  Additional  Protocols  I  and  II. 
See,  e.g.,  Additional  Protocol  I,  supra  note  1,  arts.  8-31;  MICHAEL  BOTHE,  KARL  JOSEF  PARTSCH 
&  Waldemar  A.  Solf,  New  Rules  for  Victims  of  Armed  Conflicts  89-167  (1982). 

1 10.  In  the  United  States,  this  includes  activated  reserve  and  National  Guard  forces. 

111.  GPW  Convention,  supra  note  85,  art.  4A(2)  (emphasis  provided). 

1 12.  Commentary  III  Geneva  Convention  Relative  to  the  Treatment  of  Prisoners 
OF  WAR  50  (Jean  S.  Pictet  ed.,  1960)  [hereinafter  Pictet  GPW]. 

113.  Article  2  Common  to  the  four  1949  Geneva  Conventions  states  in  part:  "[T]he  present 
Convention  shall  apply  to  all  cases  of  declared  war  or  any  other  armed  conflict  which  may  arise 
between  two  or  more  of  the  High  Contracting  Parties,  even  if  the  state  of  war  is  not  recognized  by 
one  of  them."  "High  Contracting  Parties"  means  nations  who  are  State  parties  to  the  Geneva 
Conventions.  "High  Contracting  Parties"  distinguished  between  nations  who  had  ratified  or  ac- 
ceded to  the  Geneva  Conventions  and  those  who  were  not  yet  party  to  and  bound  by  the  Geneva 
Conventions.  As  all  194  nations  are  now  parties  to  the  1949  Geneva  Conventions,  they  have  uni- 
versal applicability.  As  this  author  notes  herein,  applicability  does  not  necessarily  translate  into 
application  by  State  parties. 

Article  2  Common  to  the  four  1949  Geneva  Conventions  does  not  define  war.  It  establishes 
the  threshold  for  application  of  the  four  Conventions  to,  inter  alia,  "all  cases  of  declared  war  or 
any  other  armed  conflict  which  may  arise  between  two  or  more  of  the  High  Contracting  Parties, 
even  if  the  state  of  war  is  not  recognized  by  one  of  them."  In  contrast,  the  judgment  in  United 
States  v.  Wilhelm  von  Leeb  et  al.  (The  High  Command  Case,  XI  TWC  485  (1948))  defines  war 
more  broadly  as  "the  exerting  of  violence  by  one  state  or  politically  organized  body  against 
another.  In  other  words,  it  is  the  implementation  of  a  political  policy  by  means  of  violence." 
There  are  two  points  of  significance  to  the  current  discussion.  First,  the  authors  of  the  1949 
Geneva  Conventions,  and  particularly  the  prisoner  of  war  convention,  were  very  deliberate  in 
declining  to  recognize  combat  operations  by  a  government  against  a  private,  politically 
organized  body  such  as  the  Taliban  as  an  armed  conflict  in  which  the  Geneva  Conventions 
technically  or  formally  applied.  Second,  ignorance  of  history  by  the  Bush  administration 
resulted  in  faulty  analysis  and  justification  for  its  actions  with  respect  to  captured  Taliban  and  al- 
Qaeda. 

114.  Prisoner  of  war  entitlement  for  actions  as  a  levee  en  masse  cease  following  enemy  occupa- 
tion. Article  4A(6),  GPW,  expressly  states,  "Inhabitants  of  a  non-occupied  territory,  who  on  the 
approach  of  the  enemy  spontaneously  take  up  arms  to  resist  the  invading  forces,  without  having 
had  time  to  form  themselves  into  regular  armed  units,  provided  they  carry  their  arms  openly  and 
respect  the  laws  and  customs  of  war."  Thereafter  members  of  a  levee  en  masse  cease  to  exist  as 
such  and  must  meet  each  of  the  six  criteria  in  Article  4A(2),  GPW,  to  receive  entitlement  to  pris- 
oner of  war  status. 

115.  Pictet  GPW,  supra  note  1 12,  at  57,  states,  "It  is  essential  that  there  should  be  a  de  facto  re- 
lationship between  the  resistance  organization  and  the  party  [sic]  to  international  law  which  is  in 
a  state  of  war,  but  the  existence  of  this  relationship  is  sufficient,"  commenting  further  that  such  a 
relationship  "may  be  indicated  by  deliveries  of  equipment  and  supplies,  as  was  frequently  the 
case  during  the  Second  World  War,  between  the  Allies  and  the  resistance  networks  in  occupied 
territories."  In  addition  to  the  general  histories  noted  supra  note  104,  British  and  US  sealift  and 
airlift  support  to  organized  resistance  movements  in  Axis-occupied  nations  is  described  in  DA- 
VID Howarth,  The  Shetland  Bus  (1951);  III  The  Army  Air  Forces  in  World  War  II  Eu- 
rope: Argument  to  V-E  Day,  JANUARY  1944  TO  MAY  1945,  at  493-524  (Wesley  Frank  Craven 
&  James  Lea  Cate  eds.,  1951 );  GlBB  MCCALL,  FLIGHT  MOST  SECRET:  AIR  MISSIONS  FOR  SOE  AND 


299 


Combatants 


OSS  (1981);  Ben  Parnell,  Carpetbaggers:  America's  Secret  War  in  Europe  (1987); 
Brooks  Richards,  I  Secret  Flotillas:  Clandestine  Sea  Operations  in  Brittany,  1940- 
1944  (2004);  brooks  richards,  ii  secret  flotillas:  clandestine  sea  operations  in  the 
Mediterranean,  North  Africa,  and  the  Adriatic,  1940-1944  (2004). 

116.  Pictet  GPW,  supra  note  1 12,  at  57  n.2,  offers  the  example  of  the  July  15, 1944  declaration 
by  US  General  Dwight  D.  Eisenhower,  Supreme  Headquarters,  Allied  Expeditionary  Force 
(SHAEF)  commander,  recognizing  the  Free  French  Forces  of  the  Interior  and  taking  them  under 
his  command. 

117.  Toman,  supra  note  3,  at  290-94;  Draper,  The  Status  of  Combatants  and  the  Question  of 
Guerrilla  Warfare,  supra  note  88,  at  176. 

1 18.  The  four  criteria  were  relaxed  in  Articles  43(1)  and  44(3)  of  1977  Additional  Protocol  I, 
the  latter  requiring  only  that  an  individual  entitled  to  combatant  status  under  that  treaty  "carry 
his  arms  openly  (a)  during  each  military  engagement,  and  (b)  during  such  time  as  he  is  visible  to 
the  adversary  while  he  is  engaged  in  a  military  deployment  preceding  the  launching  of  an  attack 
in  which  he  is  to  participate."  This  change  is  not  relevant  to  the  current  discussion,  as  neither  Af- 
ghanistan nor  the  United  States  is  a  party  to  Additional  Protocol  I. 

119.  2A  Final  Record  of  the  Diplomatic  Conference  of  Geneva  of  1949,  at  433.  Other 
delegations  offered  similar  comments. 

120.  See  generally,  YOSSEF  BODANSKY,  BIN  LADEN:  THE  MAN  WHO  DECLARED  WAR  ON 
AMERICA  (2001);  ROHAN  GUNARATNA,  INSIDE  AL  QAEDA  (2002);  BRISCOE  ET  AL.,  supra  note  8, 
at  23;  Toman,  supra  note  3,  at  287-89.  YAROSLAV  TROFIMOV,  THE  SIEGE  OF  MECCA  7,  246-47 
(2007),  attributes  Saudi  Arabia's  attack  on  Muslim  extremists,  led  by  Juhayman  al  Uteyhi,  who 
seized  the  Grand  Mosque  in  Mecca  on  September  20,  1979,  as  the  point  at  which  Usama  bin 
Laden  began  to  separate  himself  from  the  Saudi  royal  family. 

121.  LOYN,  supra  note  11,  at  262-63. 

122.  GOLDMAN  &  TITTEMORE,  supra  note  3,  at  29. 

123.  Toman,  supra  note  3,  at  294.  Professor  Toman  characterizes  al-Qaeda  through  the  fol- 
lowing words  of  other  experts: 

A  question  under  the  Hague  Regulations  and  the  Third  [Geneva]  Convention  involves 
the  status  of  an  independent  force,  which  has  no  factual  link  to  a  Party  to  an 
international  armed  conflict.  In  general,  it  may  be  said  that  such  a  force  would  probably 
be  viewed  as  waging  a  private  war.  In  any  event,  it  would  have  no  status  better  than  that 
of  insurgents  in  a  non-international  armed  conflict,  unless  the  movement  they 
represent  has  such  de  facto  objective  characteristics  of  belligerency  that  the  movement 
itself  could  be  recognized  as  a  Party  to  an  international  armed  conflict. 

Id.  at  291-92,  quoting  BOTHE,  PARTSCH  &  SOLF,  supra  note  109,  at  235.  Professor  Toman's 
conclusion  is  that  al-Qaeda  does  not  meet  the  objective  characteristics  of  belligerency.  Id.  at  294. 

124.  For  example,  civilians  who  accompany  the  armed  forces  are  entitled  to  prisoner  of  war 
status  under  Article  4,  paragraph  4,  GPW,  but  do  not  enjoy  the  combatant's  privilege. 

125.  In  such  an  analysis,  the  first  question  should  be  whether  there  is  an  international  armed 
conflict,  as  defined  in  Article  2  Common  to  the  four  1949  Geneva  Conventions  ("all  cases  of  de- 
clared war  or  of  any  other  armed  conflict  which  may  arise  between  two  or  more  of  the  High  Con- 
tracting Parties,  even  if  the  state  of  war  is  not  recognized  by  one  of  them").  Failing  to  meet  the 
prerequisites  in  Common  Article  2,  there  is  no  basis  for  considering  provisions  contained  in  Ar- 
ticle 4,  GPW. 

126.  Pictet  GPW,  supra  note  1 12,  at  18. 

127.  "Party  to  the  conflict"  was  broadened  to  include  a  limited  range  of  private  armed  groups 
in  Articles  1(4)  and  43(1)  of  the  1977  Additional  Protocol  I,  supra  note  1.  As  noted  supra  note  1, 


300 


W.  Hays  Parks 

as  neither  Afghanistan  nor  the  United  States  is  a  party  to  Additional  Protocol  I,  the  change  is  not 
applicable.  Had  it  been  applicable,  the  Taliban  would  not  have  qualified  as  a  party  to  the  conflict 
as  it  met  none  of  the  criteria  in  Article  1  (4).  Since  Additional  Protocol  I's  entry  into  force  on  De- 
cember 7,  1978,  no  private  armed  group  has  qualified  as  a  "Party  to  the  conflict." 

128.  HOWARD  S.  LEVIE,  PRISONERS  OF  WAR  IN  INTERNATIONAL  ARMED  CONFLICT  36  (Vol. 
59,  US  Naval  War  College  International  Law  Studies,  1979). 

129.  See,  e.g.,  HERBERT  W.  McBRIDE,  A  RIFLEMAN  WENT  TO  WAR  (1935),  detailing  the  ac- 
count of  a  US  citizen  who  joined  and  fought  as  a  member  of  the  2 1  st  Battalion,  Canadian  Expedi- 
tionary Force,  in  World  War  I. 

130.  For  example,  on  July  14,  1940,  the  New  York  Herald  Tribune  contained  a  British  adver- 
tisement inviting  individuals  with  aircraft  experience  to  join  the  Royal  Air  Force  (RAF);  others 
already  had  joined  and  fought  in  the  RAF  in  the  Battle  for  France.  Others  quickly  followed.  RICH- 
ARD Hough  &  Denis  Richards,  The  Battle  of  Britain  187-88  (2008).  In  total,  547  men 
from  thirteen  nations,  including  seven  US  citizens,  served  as  aircrew  with  the  RAF  during  the 
1940  Battle  of  Britain.  Id.  at  191.  Similarly,  Draper  Kauffman  attended  the  US  Naval  Academy 
but  was  screened  out  as  the  result  of  his  pre-commissioning  eye  examination.  Seven  years  later, 
as  an  ambulance  driver  in  the  American  Volunteer  Ambulance  Corps  of  the  French  Army,  he 
was  captured  by  invading  German  forces.  Eventually  released,  he  was  commissioned  in  the  Royal 
Navy,  where  he  served  as  a  bomb  disposal  officer.  That  he  was  an  American  citizen  serving  first 
with  French  military  and  later  with  British  naval  forces  would  not  have  been  a  basis  for  German 
denial  of  prisoner  of  war  status.  (Returning  to  the  United  States  on  convalescent  leave,  he  re- 
ceived a  commission  in  the  US  Navy.  He  earned  a  Navy  Cross  as  a  result  of  his  clearing  Japanese 
bombs  dropped  during  the  December  7, 1941  attack  on  Pearl  Harbor,  then  was  assigned  to  estab- 
lish training  for  and  to  form  up  naval  combat  demolition  units,  forerunner  of  the  Navy's  under- 
water demolition  teams  and  today's  SEALs.)  See  ELIZABETH  KAUFFMAN  BUSH,  AMERICA'S  FIRST 
FROGMAN:  THE  DRAPER  KAUFFMAN  STORY  ix,  x,  1-12, 19, 23-25, 32-43, 62-63, 78-82  (2004). 

131.  See,  e.g. ,  Pauline  Jelinek,  Pentagon  Seeks  Recruits  on  Visas,  WASHINGTON  TIMES,  Dec.  1 1 , 
2008,  at  B8. 

132.  Pictet  GPW,  supra  note  1 12,  at  53-58,  contains  an  excellent  summary  of  the  negotiating 
history. 

133.  FELLMAN,  supra  note  95. 

134.  Parks,  supra  note  85. 

135.  BlDDLE,  supra  note  8,  at  22,  states  that  the  ISID  ceased  its  logistical  support  to  the  Taliban 
on  October  12,  2001,  while  acknowledging  that  it  may  have  continued  after  that  date. 

136.  Its  history  is  contained  in  INTERNATIONAL  COMMITTEE  OF  THE  RED  CROSS,  1  REPORT 

of  the  International  Committee  of  the  Red  Cross  on  Its  Activities  During  the 
SECOND  WORLD  WAR  (September  1,  1939-June  30,  1947)  (General  Activities)  519-20,  532-33 
(1948). 

137.  Pictet  GPW,  supra  note  112,  at  62.  While  ICRC  focus  was  on  the  Free  French,  actual 
practice  was  far  broader.  See,  e.g.,  POLISH  AIR  FORCE  ASSOCIATION,  DESTINY  CAN  WAIT:  THE 
Polish  Air  Force  in  the  Second  world  War  (1949). 

138.  GPW  Convention,  supra  note  85,  art.  4A(1). 

139.  Id.,  art.  4A(2). 

140.  Id.,  art.  2. 

141 .  Citing  International  Committee  of  the  Red  Cross,  Report  on  the  Work  of  the 
Conference  of  Government  Experts  106-07  (1948). 


301 


Combatants 


142.  A  specific  reference/mention  of  "[ mercenaries  who  devastated  France  in  theXIVth  cen- 
tury, during  the  peaceful  periods  of  the  Hundred  Years  War."  Pictet  GPW,  supra  note  1 12,  at  63 
n.3. 

143.  Id.  at  62-64. 

144.  See  supra  note  34  and  accompanying  text. 

145.  Pictet  GPW,  supra  note  1 12,  at  67. 

146.  Id.  at  68. 

147.  Having  resolved  the  issue  that  prompted  the  original  Martens  Clause  in  the  1907  Hague 
IV,  the  Martens  Clause  was  relegated  to  the  article  common  to  the  four  1949  Geneva  Conven- 
tions dealing  with  denunciation  of  (withdrawal  from)  the  Geneva  Conventions  by  a  State  party. 
See,  e.g.,  GPW  Convention,  supra  note  85,  art.  42(4);  Pictet  GPW,  supra  note  1 12,  at  648. 

148.  Parks,  supra  note  2. 

149.  Yoram  Dinstein,  Unlawful  Combatancy,  in  INTERNATIONAL  LAW  AND  THE  WAR  ON 
TERROR,  supra  note  7,  at  159,  discussed  infra.  However,  under  Article  85,  GPW,  they  retain  their 
entitlement  to  prisoner  of  war  status. 

150.  Convention  Relative  to  the  Treatment  of  Prisoners  of  War,  July  27,  1929,  47  Stat.  2021, 
1 18  L.N.T.S.  343,  reprinted  in  THE  LAWS  OF  ARMED  CONFLICTS,  supra  note  1,  at  421.  Article  1, 
paragraph  1  states:  "The  present  Convention  shall  apply  without  prejudice ...  (1)  To  all  persons 
referred  to  in  Articles  1,  2  and  3  of  the  Regulations  to  the  Hague  Convention  (IV)  of  18  October 
1907  . . .  who  are  captured  by  the  enemy." 

151.  A  legal  requirement  that  regular  forces  wear  uniforms  in  order  to  enjoy  entitlement  to 
prisoner  of  war  status  would  have  exceeded  the  requirement  in  the  1899  and  1907  Hague  treaties 
and  Article  4A(2),  GPW,  which  does  not  specify  a  "uniform"  but  merely  "a  fixed  distinctive  sign 
recognizable  at  a  distance."  As  indicated  in  the  previous  discussion  of  Lieber's  1863  analysis  and 
the  argument  put  forward  by  Belgium  and  other  nations  in  1899,  delegates  were  aware  of  the  ex- 
istence of  irregular  forces  based  upon  the  experience  of  the  Franco-Prussian  War  and  Anglo- 
Boer  War.  Expansion  of  special  operations  forces  in  World  War  II  brought  the  issue  to  the  fore. 

152.  Dinstein,  supra  note  149,  at  164;  Roberts,  supra  note  7,  at  212. 

Department  of  the  Army,  FM  27-10,  The  Law  of  Land  Warfare  para.  63  (1956)  states: 
"Commando  forces  and  airborne  troops,  although  operating  by  highly  trained  methods  of 
surprise  and  violent  combat,  are  entitled,  so  long  as  they  are  members  of  the  organized  armed 
forces  of  the  enemy  and  wear  uniforms,  to  be  treated  as  prisoners  of  war  upon  capture,  even  if 
they  operate  singly."  That  language  is  ambiguous  in  its  failure  to  explain  what  constitutes  a 
"uniform,"  and  potentially  more  restrictive  than  the  text  contained  in  earlier  editions  of  the  US 
manual.  For  example,  Chief  of  Staff,  Department  of  War,  Rules  of  Land  Warfare,  at  22,  para.  33 
(1914)  states:  "The  distinctive  sign.  This  requirement  will  be  satisfied  by  the  wearing  of  a  uniform 
or  even  less  than  a  complete  uniform."  This  text  was  deleted,  apparently  for  brevity,  in  the  1940 
edition;  the  1914  edition  contained  221  pages,  while  the  1940  edition  was  reduced  to  123.  The 
necessity  for  paragraph  33  of  the  1914  edition  may  have  not  been  recognized  in  light  of  the  US 
World  War  I  experience  in  fighting  uniformed  enemy  forces  in  conventional  military  operations 
on  well-defined  fronts;  nor  is  it  likely  organized  resistance  movements  were  contemplated.  The 
1940  US  manual  contains  an  official  publication  date  of  October  1,  1940.  The  British  SOE  was 
established  under  highly  classified  circumstances  on  July  22,  1940;  the  US  OSS  did  not  follow 
until  two  years  later,  on  July  21,  1942.  Parks,  ISSUES  IN  INTERNATIONAL  LAW  AND  MILITARY 
OPERATIONS,  supra  note  2,  at  84  and  85  n.69.  As  SOE  historian  M.R.D.  Foot  points  out,  "A  dense 
veil  of  secrecy  was  indispensable  to  SOE,  a  body  for  mounting  surprise  attacks  in  unexpected 
places:  no  secrecy,  no  surprise.  The  fact  that  the  body  existed  at  all  was  for  long  a  closely  guarded 
secret."  MICHAEL  R.D.  FOOT,  SOE  IN  FRANCE  13  (2d  rev.  ed.  2004).  That  SOE  and  OSS 


302 


W.  Hays  Parks 

operations  and  tactics,  techniques  and  procedures  were  highly  classified  may  have  played  a  part 
in  incorporation  of  the  erroneous  language  contained  in  paragraph  63  of  the  1956  edition  of  the 
manual.  But  its  author(s)  should  have  been  cognizant  of  the  change  made  in  article  4A(2),  GPW, 
and  the  rationale  for  it. 

Due  to  its  ambiguity  and  inconsistency  with  State  practice,  including  US  practice  in  World 
War  II,  the  1956  text  is  clarified  in  the  forthcoming  Department  of  Defense  Law  of  War  Manual. 

1 53.  Parks,  ISSUES  IN  INTERNATIONAL  LAW  AND  MILITARY  OPERATIONS,  supra  note  2,  annex 
at  92-99. 

154.  See,  e.g.,  ALLAN  ROSAS,  THE  LEGAL  STATUS  OF  PRISONERS  OF  WAR:  A  STUDY  IN  INTER- 
NATIONAL HUMANITARIAN  LAW  APPLICABLE  IN  ARMED  CONFLICTS  349  (1976)  ("The  concept 
of  uniforms  has  never  been  explicitly  defined  in  international  law). 

155.  Id.  at  78-8 1 .  As  noted  therein,  the  ICRC  Commentary  on  the  1 977  Additional  Protocols  I 
and  II  states: 

What  constitutes  a  uniform,  and  how  can  emblems  of  nationality  be  distinguished  from 
each  other?  The  Conference  in  no  way  intended  to  define  what  constitutes  a 
uniform.  .  .  .  "[A]ny  customary  uniform  which  clearly  distinguished  the  member 
wearing  it  from  a  non-member  should  suffice."  Thus  a  cap  or  an  armlet  etc.  worn  in  a 
standard  way  is  actually  equivalent  to  a  uniform. 

Commentary  on  the  Additional  Protocols  of  8  June  1977  to  the  Geneva 
CONVENTIONS  OF  12  AUGUST  1949,  at  468  (Yves  Sandoz,  Christophe  Swinarski  &  Bruno 
Zimmermann  eds.,  1987). 

156.  BOTHE,  PARTSCH  &  SOLF,  supra  note  109,  at  257. 

157.  See,  e.g.,  JEREMY  WILSON,  LAWRENCE  OF  ARABIA  1043  (1990),  relating  the  death  of  Brit- 
ish Army  captain  William  H.I.  Shakespear,  easily  identified,  targeted,  and  killed  in  1915  by  a 
sniper  in  the  forces  of  pro-Turkish  leader  Ibn  Rashid,  as  Shakespear  insisted  on  wearing  his  Brit- 
ish uniform  rather  than  dressing  in  indigenous  attire  to  appear  like  the  forces  to  which  he  was  as- 
signed. This  prompted  British  Army  Captain  T.E.  Lawrence  to  don  Arab  clothing  as  he  led  the 
Arab  revolt  against  Ottoman  rule.  Id.  at  1043  n.4,  and  further  discussion  in  Parks,  ISSUES  IN 
INTERNATIONAL  LAW  AND  MILITARY  OPERATIONS,  supra  note  2,  at  100-01  n.5. 

158.  Parks,  ISSUES  IN  INTERNATIONAL  LAW  AND  MILITARY  OPERATIONS,  supra  note  2,  at  101 
n.6;  FURY,  supra  note  11,  at  100,  167. 

1 59.  According  to  one  SOF  commander,  Taliban  wore  black  on  black,  with  turbans;  al  Qaeda, 
all  black,  with  hoods  to  mask  their  faces;  Northern  Alliance,  a  pakol  (chitrali  hat)  and  the 
Massoud  scarf;  US  SOF,  partial  US  uniform  and  Northern  Alliance  attire.  FURY,  supra  note  1 1,  at 
119, 167;  see  also  Parks,  ISSUES  IN  INTERNATIONAL  LAW  AND  MILITARY  OPERATIONS,  supra  note 
2,  at  101;  BLABER,  supra  note  71,  at  243, 247  for  the  US  SOF  rationale,  which  did  not  involve  per- 
fidy. Anon.,  supra  note  15,  at  36,  acknowledged, "  [B]ecause  the  disparate  forces  lacked  any  sem- 
blance of  a  uniform,  visual  identification,  particularly  at  long  distances,  was  virtually  impossible. 
The  tasks  of  preventing  fratricide  and  synchronizing  multiple  combat  elements  fell  to  the  SF 
[Special  Forces]  detachments"  (emphasis  supplied).  A  distinction  existed  in  Taliban  operations 
when  a  single  or  a  few  Taliban  would  conceal  himself/themselves  within  a  crowd  of  innocent  ci- 
vilians in  order  to  carry  out  an  attack;  such  an  act  would  be  perfidy.  US  SOF  wear  of  Northern  Al- 
liance attire,  though  much  publicized,  was  limited  as  to  time,  unit,  specific  unit  personnel, 
location  of  operations  and  mission.  Parks,  supra,  at  84. 

160.  Hague  IV  Annex,  supra  note  80,  art.  23  states,  "In  addition  to  the  prohibitions  provided 
by  special  Conventions,  it  is  especially  forbidden: . . .  (b)  To  kill  or  wound  treacherously  individ- 
uals belonging  to  the  hostile  nation  or  army." 


303 


Combatants 


Afghanistan  is  not  a  State  party  to  the  1907  Hague  Convention  (IV)  nor  its  1899  predecessor, 
Hague  Convention  II  with  Respect  to  the  Laws  and  Customs  of  War  on  Land,  which  contained 
the  same  prohibition. 

161.  The  official  English  text  states  "the  feigning  of  civilian,  non-combatant  status."  The  offi- 
cial French  text  correctly  states  "feindre  d'avoir  le  statut  de  civil  ou  de  non-combatant,"  that  is, 
"the  feigning  of  civilian  or  non-combatant  status,"  the  two  categories  being  distinctive.  BOTHE, 
PARTSCH  AND  SOLF,  supra  note  1 09,  at  206  n.2 1 .  As  noted,  neither  the  United  States  nor  Afghani- 
stan is  a  party  to  the  1977  Additional  Protocol  I.  However,  the  definition  of  perfidy  (using  the 
French  text)  is  consistent  with  State  practice  and  has  been  applied  by  US  military  forces  in  con- 
flicts since  1977. 

As  the  present  author  has  noted,  the  legal  approach  of  the  prerequisite  of  perfidy  is  not  new; 
see  Parks,  Issues  in  International  Law  and  Military  Operations,  supra  note  2,  at  82. 

162.  Bush  Memorandum,  supra  note  9. 

163.  Key  documents  in  the  interagency  debate  are  Memorandum  from  John  C.  Yoo  &  Robert 
Delahunty  to  William  J.  Haynes  II,  General  Counsel,  Department  of  Defense,  Re:  Application  of 
Treaties  and  Laws  to  al  Qaeda  and  Taliban  Detainees  (Jan.  9,  2002),  reprinted  in  TORTURE 
PAPERS,  supra  note  9,  at  38,  available  at  http://www.slate.com/features/whatistorture/ 
LegalMemos.html  [hereinafter  Yoo];  Memorandum  from  Alberto  R.  Gonzales  to  the  President, 
Decision  Re  Application  of  the  Geneva  Convention  on  Prisoners  of  War  to  the  Conflict  with  Al 
Qaeda  and  the  Taliban  (Jan.  25,  2002),  available  at  http://www.slate.com/features/whatistorture/ 
LegalMemos.html  [hereinafter  Gonzales] ;  Memorandum  from  Colin  L.  Powell  to  Counsel  to  the 
President  &  Assistant  to  the  President  for  National  Security  Affairs,  Draft  Decision  Memoran- 
dum for  the  President  on  the  Applicability  of  the  Geneva  Convention  to  the  Conflict  in  Afghani- 
stan (Jan.  26,  2002),  reprinted  in  TORTURE  PAPERS,  supra,  at  122,  available  at  http:// 
www.slate.com/features/whatistorture/LegalMemos.html  [hereinafter  Powell];  Letter  from 
John  Ashcroft  to  the  President  (Feb.  1,  2002),  reprinted  in  id.  at  126,  available  at  http:// 
www.slate.com/features/whatistorture/LegalMemos.html  [hereinafter  Ashcroft];  Memoran- 
dum from  William  H.  Taft  IV,  Legal  Adviser,  Department  of  State  to  Counsel  to  the  President, 
Comments  on  Your  Paper  on  the  Geneva  Conventions  (Feb.  2,  2002),  reprinted  in  id.  at  129, 
available  at  http://www.slate.com/features/whatistorture/LegalMemos.html  [hereinafter  Taft]. 

164.  GOLDMAN  &  TlTTEMORE,  supra  note  3;  Toman,  supra  note  3. 

165.  See,  e.g.,  Boumediene  v.  Bush,  128  S.  Ct.  2229  (2008).  The  present  author's  assignment 
was  to  establish  the  status  of  those  persons  captured  during  the  specified  time  frame.  Their  treat- 
ment and  US  Supreme  Court  cases  dealing  with  their  treatment  are  beyond  the  scope  of  this  au- 
thor's remit. 

166.  The  US  military  provided  prisoner  of  war  protection  (if  not  status  per  se)  to  individuals 
it  captured  on  the  battlefield  in  its  operations  in  the  Republic  of  Vietnam  (1964-72),  Grenada 
(1983),  Panama  (1989-90),  Iraq  (1990-91),  Somalia  (1992-94)  and  Haiti  (commencing  in 
1994);  personal  knowledge  of  author,  who  was  responsible  for  the  legal  aspects  of  this  issue 
within  the  Office  of  the  Judge  Advocate  General  of  the  Army  from  1979  to  2003. 

167.  Yoo,  supra  note  163,  at  2;  Ashcroft,  supra  note  163,  at  1;  Gonzales,  supra  note  163,  at  1. 

168.  Powell,  supra  note  163,  at  "Comments  on  the  Memorandum  of  January  25,  2002."  The 
statement  undoubtedly  is  factually  correct,  but  does  not  respond  to  the  conclusion  reached  by 
Yoo,  Ashcroft  and  Gonzales.  The  United  States  may  have  opted  not  to  comment  with  regard  to 
the  situation  in  Afghanistan  (a)  for  fear  of  jeopardizing  the  fragile  status  of  the  government  of 
Burhanuddin  Rabbani  and  its  entitlement  to  the  Afghan  seat  in  the  United  Nations  coveted  by 
the  Taliban,  (b)  to  avoid  interference  in  the  civil  war  and/or  (c)  to  resist  the  conclusion  that  a 
"failed  State"  would  be  relieved  of  its  treaty  obligations. 


304 


W.  Hays  Parks 

169.  Gonzales,  supra  note  163,  at  3. 

170.  Powell,  supra  note  163,  at  "Comments  on  the  Memorandum  of  January  25,  2002";  and 
personal  knowledge  of  the  present  author,  who  was  directly  involved  in  issues  related  to  prisoner 
of  war  treatment  for  captured  members  of  the  Panamanian  Defense  Forces;  see  supra  note  166. 
Judge  Gonzales'  statement  also  errs  in  suggesting  a  separate  policy  decision  was  made  for  Opera- 
tion Just  Cause  (Panama,  1989-90). 

171.  Taft,  supra  note  163,  as  attachment  thereto. 

172.  Id. 

173.  Press  Release,  Office  of  the  White  House  Press  Secretary,  Fact  Sheet:  Status  of  Detainees  at 
Guantanamo  (Feb.  7,  2002),  available  at  http://geneva.usmission.gov/press2002/0802detainees 
.htm  [hereinafter  White  House  Fact  Sheet] . 

174.  Ari  Fleischer,  Press  Briefing  (Feb.  7,  2002),  transcript  available  at  http://www.presidency 
.ucsb.edu/ws/index.php?pid=61628. 

1 75.  Secretary  of  Defense  Donald  H.  Rumsfeld  and  General  Richard  Myers,  DoD  News  Brief- 
ing (Feb.  8,  2002),  transcript  available  at  http://www.defenselink.mil/transcripts/transcript.aspx 
?transcriptid=2624  [hereinafter  Rumsfeld]. 

176.  Id. 

177.  The  rationale  offered  by  Bush  administration  officials  incorrectly  listing  a  uniform  re- 
quirement neglects  a  key  historical  point  from  the  Ronald  Reagan  and  George  H.W.  Bush  ad- 
ministrations— which  included  key  participants  in  developing  the  erroneous  "uniform" 
rationale  for  denial  of  prisoner  of  war  status  to  captured  al-Qaeda  and  Taliban — i.e.,  that  both 
administrations  supported  (with  weapons  and  funding)  the  mujahidin  resistance  against  the  So- 
viet occupation.  The  mujahidin  wore  the  same  or  similar  attire  as  the  Taliban  and  the  Northern 
Alliance,  and  in  many  instances  were  the  same  persons  who  fought  for  the  Taliban  or  the  North- 
ern Alliance.  As  the  United  States  was  not  a  party  to  the  conflict  against  the  Soviet  occupation, 
and  the  Soviet  Union  had  established  a  belligerent  occupation,  the  mujahidin  were  not  entitled 
to  prisoner  of  war  status  under  Article  4A(2)  (organized  resistance  movement  of  a  party  to  the 
conflict)  or  4A(6)  (levee  en  masse).  If  one  follows  the  natural  logic  of  the  George  W.  Bush  admin- 
istration regarding  the  status  of  the  Taliban,  then  arguably  it  is  condemning  the  support  of  the 
previous  administrations  for  the  mujahidin  or  acting  with  hypocrisy. 

178.  Parks,  ISSUES  IN  INTERNATIONAL  LAW  AND  MILITARY  OPERATIONS,  supra  note  2,  at 
516-19. 

179.  Id.  at  496-98,  517,  522-23.  US  SOF  who  were  involved  in  these  operations  and  with 
whom  the  author  has  spoken  have  indicated  there  was  no  difficulty  by  either  side  in  identifying 
opposing  forces  when  operating  as  units. 

180.  See,  e.g.,  GOLDMAN  &  TlTTEMORE,  supra  note  3,  at  25-26, 28;  and  Toman,  supra  note  3, 
at  281. 

181.  White  House  Fact  Sheet,  supra  note  173. 

182.  Id. 

183.  Boumediene  v.  Bush,  128  S.  Ct.  2229  (2008). 

184.  Bush  Memorandum,  supra  note  9. 

185.  Fleischer,  supra  note  174. 

186.  Id. 

187.  Id. 

188.  White  House  Fact  Sheet,  supra  note  173. 

189.  Fleischer,  supra  note  174. 

190.  Rumsfeld,  supra  note  175. 

191.  See,  e.g.,  FURY,  supra  note  1 1,  at  93. 


305 


Combatants 


192.  Fleischer,  supra  note  174. 

193.  Rumsfeld,  supra  note  175. 

194.  Article  52(2)  of  Additional  Protocol  I  defines  military  objective  as  "those  objects  which  by 
their  nature,  location,  purpose  or  use  make  an  effective  contribution  to  military  action  and 
whose  total  or  partial  destruction,  capture  or  neutralization,  in  the  circumstances  ruling  at  the 
time,  offers  a  definite  military  advantage."  The  same  definition  is  contained  in  Article  2(6)  of  the 
Amended  Mines  Protocol  (II),  Convention  on  Certain  Conventional  Weapons  (CCW)  and  Ar- 
ticle 1(3)  of  CCW  Protocol  III  (Incendiary  Weapons).  As  the  United  States  is  a  party  to  CCW 
Amended  Mines  Protocol,  it  accepts  this  definition.  Protocol  on  Prohibitions  or  Restrictions  on 
the  Use  of  Mines,  Booby-Traps  and  Other  Devices,  as  amended  May  3, 1996, 2048  U.N.T.S.  133; 
Protocol  on  Prohibitions  or  Restrictions  on  the  Use  of  Incendiary  Weapons,  Oct.  10, 1980, 1342 
U.N.T.S.  171;  both  reprinted  in  THE  LAWS  OF  ARMED  CONFLICTS,  supra  note  1,  at  196  and  210, 
respectively. 


306 


XI 


Targeting  and  International  Humanitarian 

Law  in  Afghanistan 

Michael  N.Schmitt* 


Experience  has  demonstrated,  time  and  again,  that  the  application  of  interna- 
tional humanitarian  law  (IHL)  on  the  battlefield  is  an  exercise  of  extreme  in- 
tricacy. No  aspect  of  this  body  of  law  has  proven  more  difficult  to  apply  than  that 
governing  targeting — the  use  of  force  against  enemy  forces,  material  and  facilities. 
Combat  operations  in  Afghanistan  since  October  7,  2001,  the  date  on  which  the 
United  States  and  its  coalition  partners  launched  Operation  Enduring  Freedom, 
have  aptly  illustrated  the  complexity  of  targeting  in  modern  warfare. 

This  article  examines  targeting  practices  during  the  Operation  Enduring  Free- 
dom campaign  through  2008,  with  emphasis  on  US  operations.  Specifically,  it  ex- 
plores the  role  law  played  in  the  calculations  of  those  responsible  for  planning, 
approving  and  conducting  "attacks,"  defined  in  IHL  as  "acts  of  violence  against  the 
enemy,  whether  in  offence  or  defence."1  As  will  become  apparent,  their  decisions 
were  determined  less  by  law  than  by  either  the  operational  realities  of  the  battlefield 
or,  in  a  Clausewitzian  sense,  the  policy  dictates  underpinning  the  conflict. 

Reference  is  largely  to  the  law  applicable  in  international  armed  conflict,  that  is, 
the  law  governing  hostilities  between  States.2  Although  debate  continues  over 
whether  the  terrorist  attacks  of  September  11,  2001  launched  a  conflict  of  this 


*  Charles  H.  Stockton  Professor  of  International  Law,  US  Naval  War  College,  Newport,  Rhode 
Island. 


Targeting  and  International  Humanitarian  Law  in  Afghanistan 

character,3  the  October  7  coalition  strikes  against  Taliban  and  terrorist  forces  based 
in  Afghanistan  unquestionably  did  so,  one  between  Afghanistan  and  the  States  par- 
ticipating in  the  US-led  coalition.4  Arguably,  the  conflict  became  non-international 
in  June  2002,  when  the  Loya  Jirga  elected  Hamid  Karzai  President  of  the  Transi- 
tional Authority,  an  act  which  the  United  Nations  recognized  as  establishing  legit- 
imate indigenous  governance  over  a  sovereign  Afghanistan.5  Today,  the  "war"  in 
Afghanistan  comprises  a  non-international  armed  conflict  between  the  Afghan 
government  (supported  by  foreign  States)  and  various  armed  groups,  most  nota- 
bly the  remnants  of  the  Taliban  and  Al  Qaeda.6 

Although  the  conflict  has  become  non-international,  it  must  be  understood  that 
the  IHL  norms  governing  attacks  during  international  armed  conflicts,  on  one 
hand,  and  non-international  armed  conflicts,  on  the  other,  have  become  nearly  in- 
distinguishable. In  particular,  the  foundational  IHL  principle  of  distinction,  which 
requires  those  involved  in  hostilities  to  "at  all  times  distinguish  between  the  civil- 
ian population  and  combatants  and  between  civilian  objects  and  military  objec- 
tives," applies  equally  in  all  conflicts.7  That  being  so,  the  humanitarian  law 
governing  international  armed  conflict  always  serves  as  an  appropriate  benchmark 
against  which  to  measure  targeting  practices. 

The  Operational  Environment 

Afghanistan  presented  a  multifarious  environment  in  which  to  apply  targeting 
law.8  The  country's  physical  and  human  terrains  are  of  unparalleled  complexity.  At 
nearly  650,000  square  kilometers,  it  is  roughly  the  size  of  Texas.  Much  of  the  country 
is  mountainous  and  few  roads  or  other  means  of  transportation  exist.  The  5,500- 
kilometer  border  is  ill-defined  and  porous.  These  features  often  compelled  US 
forces  to  employ  airpower  in  lieu  of  ground  operations.  Habitation  is  widely  scat- 
tered and  predominantly  rural,  and  combatants  are  seldom  distinguishable  from 
civilians  by  dress.  The  operational  result  was  an  unusually  heavy  reliance  on  intelli- 
gence, surveillance  and  reconnaissance  (ISR)  capabilities,  rather  than  visual  identi- 
fication by  an  attacker.  Complex  ethnic  and  tribal  relationships,  characterized  by 
shifting  alliances,  complicated  matters.  Indeed,  Afghans  typically  have  less  sense  of 
identity  as  such  than  as  Tajiks,  Pashtuns,  Hazaras,  Turkmens,  Uzbeks  or  members 
of  other  similar  groups.  In  many  cases,  these  ethnic  groups  straddle  borders  with 
Afghanistan's  neighbors — Pakistan,  Turkmenistan,  Uzbekistan,  Tajikistan  and 
China. 

Perhaps  most  significantly,  Afghanistan's  recent  history  has  been  one  of  con- 
stant warfare,  from  the  internal  conflict  and  ensuing  Soviet  invasion  of  1979, 
through  the  Soviet  withdrawal  a  decade  later,  and  into  the  war  that  led  to  the  1996 

308 


Michael  N.  Schmitt 


Taliban  victory.  Defeat  of  the  Taliban  by  the  US-led  coalition  in  late  2001  ushered 
in  the  period  of  hostilities  considered  here.  Many  Afghans  have  known  nothing  but 
war,  and  many  have  found  themselves  on  both  sides  of  the  battle  lines  at  different 
times.  A  massive  illegal  narcotics  infrastructure  financially  fuels  these  conflicts.  Af- 
ghanistan is  presently  the  world's  largest  producer  of  opium,  with  an  output  of 
eight  thousand  metric  tons  in  2008.  Since  unemployment  runs  at  40  percent,  and 
in  light  of  a  per  capita  gross  domestic  product  of  a  meager  $800,  both  the  drug  trade 
and  conflict  offer  attractive  means  of  subsistence.9 

As  noted,  terrain,  distance  and  infrastructure  led  the  coalition  forces  to  rely 
heavily  on  air  attacks.  Political  demands  for  a  quick  response  to  September  11,  the 
practical  difficulty  of  rapidly  deploying  ground  forces  and  fear  of  repeating  the  disas- 
trous Soviet  experience  further  led  to  an  emphasis  on  air  operations.10  During  the 
initial  phase  of  hostilities,  friendly  indigenous  armed  groups,  supported  by  US  and 
coalition  special  forces,  shouldered  responsibility  for  most  ground  operations. 
However,  once  the  conflict  morphed  into  a  classic  insurgency,  ground  operations 
assumed  increasing  importance.  Nevertheless,  air  attack  remains  a  dominant  fea- 
ture of  the  war  in  Afghanistan. 

Targeting  in  a  Counterinsurgency 

Within  months,  the  conflict  in  Afghanistan  became  an  insurgency  in  which  tradi- 
tional methods  of  warfare  no  longer  sufficed.11  As  US  military  doctrine  recognizes, 
the  application  of  force  to  defeat  an  insurgency  must  be  but  part  of  a  broader  strategy 
that  incorporates  paramilitary,  political,  economic,  psychological  and  civic  actions. 

The  application  of  a  purely  military  approach  to  irregular  warfare  [IW]  has  not  proved 
successful  in  the  past.  IW  is  about  winning  a  war  of  ideas  and  perception.  Its  battles  are 
fought  amongst  the  people  and  its  outcomes  are  determined  by  the  perceptions  and 
support  of  the  people.  The  campaign  must  change  the  perception  and  offer  viable 
alternatives,  rather  than  specifically  kill  an  enemy  or  destroy  his  resources  in 
isolation.12 

This  reality  necessitates  carefully  measured  use  of  force,  lest  the  complementary 
components  of  the  strategy  suffer.  The  current  US  counterinsurgency  (COIN) 
manual  accordingly  cautions, 

[a]ny  use  of  force  generates  a  series  of  reactions Counterinsurgents  should  calculate 

carefully  the  type  and  amount  of  force  to  be  applied  and  who  wields  it  for  any 
operation.  An  operation  that  kills  five  insurgents  is  counterproductive  if  collateral 
damage  leads  to  the  recruitment  of  fifty  more  insurgents.  .  .  .  [Thus,]  it  is  vital  for 


309 


Targeting  and  International  Humanitarian  Law  in  Afghanistan 

commanders  to  adopt  appropriate  and  measured  levels  of  force  and  apply  that  force 
precisely  so  that  it  accomplishes  the  mission  without  causing  unnecessary  loss  of  life  or 
suffering.13 

Sensitivity  to  the  reverberating  consequences  of  an  attack  that  causes  civilian  casu- 
alties lies  at  the  heart  of  counterinsurgency  strategy,  for  "using  substantial  force . . . 
increases  the  opportunity  for  insurgent  propaganda  to  portray  lethal  military  ac- 
tivities as  brutal,  [while]  using  force  precisely  and  discriminately  strengthens  the 
rule  of  law  that  needs  to  be  established."14 

Ultimately,  the  key  is  legitimacy  with  the  population,  the  support  of  which  con- 
stitutes the  ultimate  objective  of  all  counterinsurgencies.  The  term  "legitimacy" 
unsurprisingly  appears  131  times  in  the  COIN  manual.  In  2008,  it  was  elevated  to  a 
"principle  of  war"  for  US  joint  operations.  Along  with  perseverance  and  restraint, 
similarly  relevant  in  the  context  of  targeting,  legitimacy  joined  the  nine  traditional 
principles:  objective,  offensive,  mass,  economy  of  force,  maneuver,  unity  of  com- 
mand, security,  surprise  and  simplicity.15 

The  legitimacy  imperative  undergirds  US  targeting  doctrine.  As  an  example,  the 
Air  Force  requires  consideration  of  the  following  factors  during  the  "target  valida- 
tion" phase  of  planning.16 

•  Does  the  target  meet  [combined  force  air  component  commander]  or  higher 
commanders'  objectives,  guidance,  and  intent? 

•  Is  the  target  consistent  with  [law  of  armed  conflict]  and  [rules  of  engagement]? 

•  Is  the  desired  effect  on  the  target  consistent  with  the  end  state? 

•  Is  the  target  politically  or  culturally  "sensitive?" 

•    What  will  the  effect  of  striking  it  be  on  public  opinion  (enemy,  friendly,  and 
neutral)? 

•  What  are  the  risks  and  likely  consequences  of  collateral  damage? 

•  Is  it  feasible  to  attack  this  target?  What  is  the  risk? 

•  Is  it  feasible  to  attack  the  target  at  this  time7. 

•  What  are  the  consequences  of  not  attacking  the  target? 

•  Will  attacking  the  target  negatively  affect  friendly  operations  due  to  current  or 
planned  friendly  exploitation  of  the  target? 

310 


Michael  N.  Schmitt 


Clearly,  counterinsiirgency  targeting  planners  must  be  especially  sensitive  to  issues 
beyond  the  immediate  military  utility  of  a  strike  and  the  legal  norms  governing  it. 

The  collateral  damage  estimate  methodology  (CDEM)  employed  by  US  forces 
reflects  this  sensitivity.17  "Collateral  damage"  refers  to  incidental  injury  to  civil- 
ians and  damage  to  civilian  objects  caused  during  an  attack  on  a  lawful  target. 
CDEM  sets  forth  "standardized  procedures  for  determining  potential  collateral 
damage,  options  available  to  mitigate  that  damage,  and  approval  authorities  for 
strikes  based  on  the  anticipated  collateral  damage  during  the  conduct  of  opera- 
tions."18 Although  the  precise  parameters  of  CDEM  are  classified,  in  general  terms 
the  methodology  involves  using  computer-assisted  modeling,  intelligence  analy- 
sis, weaponeering  and  human  vetting  to  assess  likely  collateral  damage  and  deter- 
mine the  level  at  which  a  preplanned  strike  must  be  approved.19  It  further  requires 
particular  caution  when  attacking  dual-use  targets,  when  employing  cluster  mu- 
nitions or  when  civilians  are  present  within  military  objectives. 

The  Law  of  Targeting  in  Brief 

The  law  of  targeting  is,  from  a  theoretical  and  undeconstructed  perspective,  fairly 
straightforward.20  Consistent  with  the  principle  of  distinction,  attacks  may  only  be 
conducted  against  military  objectives,  including  members  of  the  armed  forces  and 
other  organized  armed  groups  participating  in  the  conflict.21  Objects  which  by 
"nature,  location,  purpose,  or  use  make  an  effective  contribution  to  military  action 
and  whose  total  or  partial  destruction,  capture,  or  neutralization,  in  the  circum- 
stances ruling  at  the  time,  offers  a  definite  military  advantage"  qualify  as  military 
objectives.22  By  the  "use"  criterion,  civilian  objects  may  become  military  objectives 
when  the  enemy  employs  them  for  military  ends.  Analogously,  civilians  may  be 
targeted  should  they  "directly  participate  in  hostilities."23  Attacks  must  not  be  in- 
discriminate; that  is,  they  must  be  directed  against  a  specific  military  objective  and 
may  not  treat  "as  a  single  military  objective  a  number  of  clearly  separated  and  dis- 
tinct military  objectives  located  in  a  city,  town,  village  or  other  area  containing  a 
similar  concentration  of  civilians  or  civilian  objects."24 

When  engaging  a  lawful  target,  the  attacker  may  be  barred  from  employing  cer- 
tain weapons.  Such  restrictions  derive  either  from  the  customary  law  forbidding 
the  employment  of  indiscriminate  weapons25  and  those  which  cause  unnecessary 
suffering  or  superfluous  injury,26  or  from  specific  treaty  restrictions,  such  as  the 
Dublin  Treaty  on  cluster  munitions,  for  States  party.27 

Even  assuming  a  lawful  target  and  permitted  weapon,  an  attacker  must  take 
"feasible  precautions"  to  minimize  collateral  damage.  Specifically,  "the  com- 
mander must  decide,  in  light  of  all  the  facts  known  or  reasonably  available  to  him, 

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Targeting  and  International  Humanitarian  Law  in  Afghanistan 

including  the  need  to  conserve  resources  and  complete  the  mission  successfully, 
whether  to  adopt  an  alternative  method  of  attack,  if  reasonably  available,  to  reduce 
civilian  casualties  and  damage."28  Considerations  include  weapon  and  tactic  op- 
tions, as  well  as  alternative  targets  that  can  be  attacked  to  attain  a  "similar  military 
advantage." 

Finally,  attacks  that  violate  the  principle  of  proportionality  are  unlawful.  An  at- 
tack will  breach  the  standard  if  it  is  "expected  to  cause  incidental  loss  of  civilian 
life,  injury  to  civilians,  damage  to  civilian  objects,  or  a  combination  thereof,  which 
would  be  excessive  in  relation  to  the  concrete  and  direct  military  advantage  antici- 
pated."29 The  rule  of  proportionality  is  often  misconstrued  as  either  prohibiting 
"extensive"  collateral  damage  or  as  a  test  which  balances  collateral  damage  against 
military  advantage.  In  fact,  it  bars  attack  only  when  no  proportionality  at  all  exists 
between  the  ends  sought  and  the  expected  harm  to  civilians  and  civilian  objects. 
Restated,  the  linchpin  term  "excessive"  indicates  unreasonable  collateral  damage 
in  light  of  the  reasonably  anticipated  military  advantage  expected  to  result  from 
the  attack.30 

Law  and  Targeting  in  Afghanistan 

That  law  limits  targeting  options  is  self-evident.  However,  the  nature  of  a  conflict 
equally  affects  application  of  the  law,  sometimes  by  necessitating  policy  and  oper- 
ational limitations  that  exceed  those  found  in  international  humanitarian  law. 
Nowhere  has  this  dynamic  been  more  apparent  than  during  operations  in 
Afghanistan. 

The  legitimacy  imperative,  so  prominent  in  counterinsurgency  doctrine,  was 
the  driving  force  behind  targeting  practices  in  the  conflict.  Early  high-visibility 
mistakes  drew  international  attention  to  the  US  operations.  Of  particular  note 
were  two  mistaken  strikes  on  an  International  Committee  of  the  Red  Cross  (ICRC) 
warehouse  in  the  first  month  of  the  conflict  and  an  attack  on  a  wedding  party  in 
November.31  Resultantly,  the  incentive  to  avoid  future  mistakes  and,  indeed,  even 
lawful  collateral  damage,  grew  quickly. 

Intent  on  avoiding  unintended  harm  to  the  civilian  population,  commanders 
imposed  strict  restrictions  on  the  conduct  of  operations.  For  instance,  the  Interna- 
tional Security  Assistance  Force  Commander  directed  his  forces  to  employ  preci- 
sion munitions  whenever  possible;  humanitarian  law  imposes  no  such 
requirement.  Additionally,  he  directed  on-scene  commanders  to  make  every  effort 
to  ensure  houses  from  which  their  troops  received  fire  were  free  of  innocent  civil- 
ians before  responding,32  even  though,  as  a  matter  of  IHL,  returning  fire  in  such 
circumstances  is  governed  by  the  rule  of  proportionality  and  the  requirement  to 

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Michael  N.  Schmitt 


take  feasible  precautions  in  attack,  not  by  the  mere  presence  of  civilians.  Further,  in 
2007  the  United  States  and  NATO  restricted  the  use  of  airstrikes  during  troops-in- 
contact  (TIC)  situations,  often  opting  for  withdrawal  rather  than  engagement.  US 
forces  also  increasingly  employed  small- diameter  bombs  (low-collateral-damage 
bombs).  Again,  IHL  would  not  necessarily  mandate  such  practices. 

Despite  such  efforts,  civilian  casualties  continued  to  occur.  Human  Rights 
Watch  estimates  that  in  2007  over  1,600  civilians  were  killed  in  the  conflict.  Nine 
hundred  fifty  died  as  a  result  of  Taliban  and  Al  Qaeda  actions,  whereas  434  of  the 
casualties  were  attributable  to  US  and  NATO  actions  (312  in  airstrikes  and  113 
during  ground  action).  Another  fifty-seven  died  in  crossfire  between  the  warring 
parties  and  the  circumstances  surrounding  the  deaths  of  192  were  unclear.33 

President  Karzai,  struggling  with  the  public-opinion  fallout  of  civilian  casualties, 
repeatedly  addressed  the  issue.  Following  a  particularly  tragic  attack  in  2007  that 
killed  fifty- one  civilians,  he  stated  that  while  "the  intention  is  very  good  in  these 
operations  to  fight  terrorism  . . .  five  years  on,  it  is  very  difficult  for  us  to  continue 
to  accept  civilian  casualties."34  Karzai  continues  to  demand  greater  care  in  execut- 
ing attacks  endangering  civilians. 

A  number  of  obstacles  dramatically  hindered  attempts  to  avoid  collateral  dam- 
age. The  enemy  was  scattered  across  the  country  and  often  operated  in  small 
groups.  The  non-linear  nature  of  this  battlespace  meant  that  operations  had  to  be 
conducted  over  vast  areas  in  which  the  mere  position  of  a  group,  vehicle  or  other 
mobile  target  seldom  served  as  a  reliable  indicator  of  its  enemy  character.  More- 
over, because  neither  the  Taliban  nor  Al  Qaeda  fielded  a  classic  military  force,  with 
corresponding  fixed  military  facilities,  coalition  forces  quickly  exhausted  known 
targets,  thereby  necessitating  a  shift  to  fleeting  targets,  which  were  harder  to  iden- 
tify because  of  time  constraints.  Most  targeting  consequently  became  "dynamic." 
In  dynamic  targeting,  targets  are  passed  to  aircraft  already  airborne  as  hostile 
forces  are  identified,  thereby  limiting  the  opportunity  for  comprehensive  target 
analysis,  and  requiring  use  of  whatever  weapons  the  aircraft  happen  to  be  armed 
with  at  the  time. 

The  difficulty  of  identifying  the  enemy  complicated  matters.  Enemy  forces  wore 
no  uniforms  or  other  distinctive  clothing  that  allowed  immediate  visual  identifica- 
tion. Merely  being  armed  was  an  insufficient  indicator,  as  Afghans  in  remote  areas 
often  carry  weapons  for  protection,  and  because  friendly  indigenous  armed  groups 
were  usually  indistinguishable  from  the  Taliban  and  Al  Qaeda.  General  T.  Michael 
Mosely,  the  combined  force  air  component  commander,  highlighted  the  opera- 
tional murkiness  when  he  noted  that  "in  any  given  space — ground  space — out 
there,  you  had  regular  and  unconventional  forces,  humanitarian  assistance  guys, 


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Targeting  and  International  Humanitarian  Law  in  Afghanistan 

maybe  regular  guys  and  not  one  of  us  in  the  command  authority  knew  where  all 
those  guys  were."35 

Determined  to  avoid  incidents  which  might  delegitimize  their  operations,  US 
and  coalition  forces  imposed  wide-ranging  targeting  restrictions  through  myriad 
mechanisms.  These  included  coalition  and  national  rules  of  engagement  (ROE),36 
no-strike  lists  (for  reasons  such  as  IHL  or  host-nation  sensitivities),  restricted  tar- 
get lists  (in  which  attack  requires  special  preapproval,  e.g.,  due  to  negative  cultural 
implications),  individual  target  folder37  restrictions  (such  as  a  requirement  to  use  a 
particular  munition  or  strike  a  particular  "desired  point  of  impact"),  Joint  Air  Op- 
erations Plans,38  execute  orders,39  fragmentary  orders,40  fire  support  coordination 
measures41  and  soldier  cards.42  The  net  result  was  a  dense  and  oft  confusing  nor- 
mative environment,  one  in  which  IHL  played  a  minor  role  relative  to  policy  and 
operational  considerations.43 

Such  restrictions  deviated  measurably  from  customary  practices  attendant  to 
attacks  on  individuals.  The  traditional  approach  in  conventional  conflict  is 
straightforward.  Typically,  enemy  armed  forces,  including  organized  armed 
groups  supporting  the  enemy,  are  "declared  hostile,"  either  at  the  outset  of  the 
conflict  or,  in  the  latter  case,  once  their  involvement  in  the  conflict  becomes  evi- 
dent. Declaring  forces  hostile  operationalizes  the  principle  of  distinction,  which 
permits  attacks  on  combatants.  It  matters  not  whether  the  combatants  are  threat- 
ening the  attacker,  or  even  whether  they  represent  a  potential  threat;  status  alone 
renders  them  a  lawful  target.  For  instance,  an  unarmed  cook  may  be  attacked  on 
sight  if  he  or  she  is  a  member  of  the  armed  forces. 

By  the  principle  of  distinction,  civilians  may  not  be  attacked  unless,  and  for  such 
time  as,  they  directly  participate  in  hostilities.44  Accordingly,  although  they  may 
not  be  declared  hostile  per  se,  rules  of  engagement  and  other  targeting  guidance  al- 
low them  to  be  attacked  while  engaging  in  actions  that  constitute  direct  participa- 
tion. Much  controversy  exists  over  the  reach  of  the  qualifying  activities,  as  well  as 
the  meaning  of  the  phrase  "for  such  time."  These  issues  will  be  dealt  with  later;  the 
point  here  is  that  it  is  customary  for  targeting  guidance  to  permit  attacks  on  direct 
participants. 

Beyond  declaring  forces  hostile  and  incorporating  direct  participation  into  the 
ROE,  the  third  typical  form  of  engagement  authority  addresses  violence  with  no 
nexus  to  the  conflict — criminal  acts.  Soldiers  faced  with  such  criminality  may  em- 
ploy force  consistent  with  the  law  of  self-defense  (and  defense  of  others).  Spe- 
cifically, they  may  use  deadly  force  to  protect  themselves  and  others  against  an 
imminent  threat  of  death  or  serious  injury,  when  less  extreme  measures  are  un- 
available.45 Operationally,  the  US  rules  of  engagement  provide  that  US  military 
personnel  may  use  force  in  the  face  of  a  hostile  act  or  a  demonstration  of  hostile 

314 


Michael  N.  Schmitt 


intent.46  They  may  only  do  so  when  force  is  the  sole  viable  option  for  addressing  the 
situation  (principle  of  necessity).  No  more  force  than  that  required  to  repel  the  at- 
tack, or  prospective  attack,  is  permitted. 

This  typical  three-tiered  paradigm  was  notably  altered  during  operations  in  Af- 
ghanistan. Although  targeting  practices  shifted  somewhat  over  time  to  meet 
emerging  battlefield  realities,  in  broad  terms  they  have  been  relatively  constant. 
When  the  conflict  began,  the  United  States  and  its  coalition  partners  declared  no 
enemy  forces  hostile,  to  include  the  Taliban  and  Al  Qaeda.  Instead,  the  "enemy" 
had  to  represent  a  "likely  and  identifiable  threat"  (LIT)  before  being  attacked. 
Those  not  meeting  this  standard  could  only  be  engaged  if  they  had  committed  a 
hostile  act  or  demonstrated  hostile  intent,  the  self-defense  rule  traditionally  em- 
ployed to  respond  to  actions  unconnected  to  the  hostilities.  During  Operation  Iraqi 
Freedom,  by  contrast,  the  Iraqi  military  was  declared  hostile  from  the  outset  of  hos- 
tilities. Similarly,  "designated  terrorist  groups"  could  generally  be  engaged  in  the 
same  fashion.47 

Afghanistan  represented  the  first  use  of  the  LIT  standard  in  an  armed  conflict.  It 
was  less  permissive  than  the  practice  of  declaring  forces  hostile  because  potential 
targets  had  to  manifest  some  degree  of  threat.  Paradoxically,  the  standard  was 
more  permissive  than  the  designated-terrorist-group  approach  applicable  in  Iraq 
because  it  included  no  status  criterion,  i.e.,  circumstances  alone  justified  engage- 
ment even  in  the  absence  of  intelligence  as  to  membership. 

The  adoption  of  this  untested  approach  to  engagement  authority  begs  the  ques- 
tion of  why  the  standard  declaration  of  forces  hostile,  combined  with  direct  partici- 
pation and  self-defense  ROE,  was  judged  insufficient.  Apparently,  concern  over 
the  liberality  of  declaring  forces  hostile,  combined  with  apprehension  over  the  po- 
tential for  friendly- fire  incidents,  underpinned  the  standard.  According  to  one  key 
participant  in  its  development  at  US  Central  Command  (CENTCOM),  the  mili- 
tary headquarters  for  Afghanistan  and  Iraq  operations, 

I  intentionally  designed  it  to  allow  the  guys  in  contact  (Ground  Forces)  the  ability  to 
engage  the  "enemy,"  such  as  they  were,  without  actually  being  shot  at  first,  while  at  the 
same  time  limiting  the  ability  of  the  guys  flying  at  21,000  feet  and  210  knots  to  drop 
bombs  everywhere  they  wanted  (potentially  on  our  allies).  As  you  know,  when  we 
began  operations  targets  (deliberate  targets)  were  intentionally  held  at  the  highest 
levels  and  this  was  a  way  to  provide  some  flexibility  to  the  guy  in  the  field.  "Self  Defense 
Plus"  is  how  I  describe  it.  In  theory,  this  gave  the  Air  Force  the  ability  to  strike  as  well 
(e.g.  SAM  batteries,  anti-aircraft  guns,  etc).  Based  on  the  "OPLAN"  I  knew  there  would 
be  people  (ally  and  enemy  alike)  all  over  the  country  that  looked  exactly  the  same 
(white  robes/turbans [,]  on  horses/pickup  trucks,  etc). 


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Targeting  and  International  Humanitarian  Law  in  Afghanistan 

Identification  of  the  enemy  was  everything  during  this  conflict.  There  wasn't  even  a 
FLOT  [forward  line  of  own  troops].  Eventually,  the  best  we  could  do  was  create  small 
zones/boxes  where  we  could  say  none  of  our  people  were  located.  You  simply  couldn't 
tell  who  the  enemy  was  from  the  lawn  darts  [slang  for  an  F-16]  and  this  was  a  way  of 
empowering  the  guys  in  contact  to  shoot  or  call  air  strikes  based  upon  "Positive 
Identification"  (the  totality  of  the  circumstances).  And,  even  with  these  tight  rules  the 
conflict  didn't  go  without  incident.48 

The  less  candid,  but  official,  CENTCOM  explanation  focused  on  the  conflict's 
unique  nature.  Central  Command  was  intent  on  maintaining  strict  control  over 
attacks  because  it  well  understood  the  downside  of  collateral  damage  during  an 
insurgency.  Recall  also  the  difficulties  of  verifying  targets,  both  because  identifi- 
cation based  solely  on  appearance  was  problematic  and  because  it  was  often  diffi- 
cult to  determine  to  which  side  the  various  armed  groups  owed  their  allegiance  at 
any  particular  time.  With  its  comprehensive  access  to  ISR  assets,  and  fuller  grasp 
of  operational  and  strategic  considerations,  CENTCOM  believed  that  it  was  best 
situated  to  distinguish  friendly  from  hostile  targets. 

Yet,  the  command  realized  that  a  conflict  of  this  magnitude  required  more 
than  self-defense  rules.  One  scenario  cited  to  justify  the  new  standard  involved 
US  forces  encountering  sleeping  Taliban  soldiers;  another  posited  aircraft  spot- 
ting anti-aircraft  systems  along  the  route  of  attack.  Self-defense  rules  alone  would 
not  permit  attack  in  such  situations,  and  it  clearly  would  make  no  sense  for  sol- 
diers in  the  field  or  airborne  aircraft  to  have  to  "call  home"  for  engagement  autho- 
rization, merely  because  these  lucrative  targets  were  neither  committing  a  hostile 
act  nor  demonstrating  hostile  intent.  For  CENTCOM,  the  answer  lay  in  the  LIT 
standard.49 

The  level  of  certainty  required  to  determine  that  a  target  qualified  as  a  likely  and 
identifiable  threat  was  also  a  novel  feature,  at  least  in  ground  operations.  Likely  and 
identifiable  threat  required  more  than  merely  "suspicious  people  in  a  questionable 
location."50  Rather,  the  rules  of  engagement  mandated  positive  identification 
(PID)  of  the  target  as  a  threat  before  attacking  it.  Previously,  this  standard  had  only 
been  applied  in  the  no-fly- zone-enforcement  context  of  Operations  Northern  and 
Southern  Watch.51  Afghanistan  represented  its  first  use  in  ground  operations,  and 
it  unsurprisingly  caused  confusion.  The  meaning  of  PID  was  eventually  clarified  in 
an  unclassified  format  during  Operation  Iraqi  Freedom  on  the  Combined  Forces 
Land  Component  ROE  Card:  "PID  is  a  reasonable  certainty  that  the  proposed  tar- 
get is  a  legitimate  military  target."52  Interestingly,  PID  had  meant  something  much 
more  in  the  no-fly- zone  context — almost  a  no-mistakes  standard.53 

Accounts  from  soldiers  and  airmen,  as  well  as  judge  advocates,  indicate  that  LIT 
generated  confusion,  in  great  part  because  it  was  not  a  standard  to  which  combat 

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Michael  N.  Schmitt 


forces  had  trained.  Numerous  subordinate  commands  urged  CENTCOM  to  issue 
guidance.54  The  new  terminology  also  elevated  form  over  substance,  at  least  to  an 
extent.  For  instance, 

[reservations  of  targeting  authority  to  higher  levels  made  it  extremely  important  for 
team  members  calling  for  fires  to  use  the  right  terms  to  avoid  any  delays.  In  addition  to 
using  terms  like  "positively  identified"  and  "likely  and  identifiable  threat"  in  the 
request,  the  team  members  needed  to  indicate  the  situation  requiring  the  fires  so  that 
the  approval  was  obtained  at  the  most  immediate  level  possible.55 

One  US  officer  cut  to  the  chase:  "When  lawyers  can  easily  argue  about  what  [LIT] 
means  or  doesn't  mean  as  far  as  engaging  targets,  we  have  failed [,]  because  the  21- 
year-old  corporal  doesn't  have  the  luxury  of  such  an  academic  exercise."56 

Likely  and  identifiable  threat  represented  a  standard  exceeding  that  required  by 
the  relevant  norms  of  international  humanitarian  law.  Most  significantly,  it  re- 
jected the  universally  accepted  premise  that  combatants,  whether  members  of  the 
armed  forces  or  of  other  organized  armed  groups,  can  be  attacked  on  sight.  Under 
IHL,  their  mere  status  as  combatants  rendered  them  targetable.  By  contrast,  act  (or 
imminent  act)  replaced  status  in  the  LIT  standard. 

LIT  is  a  genre  of  the  direct  participation  in  hostilities — one  without  an  express 
"for  such  time"  component.  This  should  be  unsurprising,  since  the  absence  of  classic 
conventional  operations  by  the  Taliban  and  Al  Qaeda,  combined  with  the  difficulty 
of  identifying  fighters  as  members  of  a  particular  group,  meant  that  application  of 
the  direct-participation  notion,  in  some  form,  was  destined  to  loom  large. 

As  mentioned  earlier,  disagreement  exists  over  the  scope  of  direct  participation. 
For  instance,  while  all  agree  that  conducting  an  attack  and  gathering  tactical  intelli- 
gence qualify,  disagreement  prevails  as  to  whether  directly  financing  insurgents 
does.  An  ICRC-sponsored  multiyear  project  to  clarify  matters  is  nearing  comple- 
tion. Although  the  final  interpretive  guidance  on  direct  participation  has  yet  to  be 
released,  indications  are  that  three  cumulative  criteria  will  emerge.57 

The  act  in  question  must  first  adversely  affect  (or  be  likely  to  do  so)  enemy  mili- 
tary operations  or  capacity,  or  harm  civilians  or  civilian  objects.  Second,  there  must 
be  a  direct  causal  link  between  the  act  and  the  harm  caused  the  enemy,  or  the  harm 
must  derive  from  a  coordinated  military  operation  of  which  the  act  is  an  integral 
part.  This  causality  criterion  excludes  actions  that  may  contribute  in  some  way  to 
the  enemy's  military  efforts,  but  which  do  not  directly  enhance  its  combat  actions. 
Finally,  the  act  must  be  designed  to  negatively  affect  the  enemy  in  support  of  its  op- 
ponent. This  belligerent  nexus  requirement  would  exclude  mere  criminality  un- 
connected to  the  conflict.  The  LIT  standard  meets  all  three  criteria:  the  threat  is  to 


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US  forces,  the  anticipated  actions  amount  to  hostile  activity  and  the  forces  acting 
are  not  mere  criminals. 

The  absence  of  a  "for  such  time"  element  in  LIT  raises  several  legal  issues.  Before 
discussing  them,  it  is  useful  to  recall  that  they  are  not  raised  as  to  any  individuals 
who  are  members  of  an  organized  armed  force,  for,  as  noted,  members  of  such 
groups  may  be  attacked  regardless  of  whether  they  are  directly  participating.58 
There  is  no  temporal  issue — as  a  matter  of  law — vis-a-vis  them. 

Those  who  are  not  members  of  an  organized  armed  group,  but  meet  the  direct 
participation  scope  threshold,  may  only  be  attacked  "for  such  time"  as  they  directly 
participate  in  the  hostilities.  The  notion  of  "for  such  time"  is  the  source  of  much 
contention.  The  ICRC  Commentary  to  the  relevant  provision  of  Additional  Proto- 
col I,  Article  51.3,  provides  that  direct  participation  includes  "preparations  for 
combat  and  return  from  combat,"  but  that  "[o]nce  he  ceases  to  participate,  the  ci- 
vilian regains  his  right  to  the  protection "59  Individuals  who  have  not  set  out  to 

attack  their  enemy  are  immune  from  attack;  those  who  manage  to  make  it  home 
following  an  operation  regain  civilian  protection  until  they  set  out  on  another  op- 
eration. Certain  experts  of  the  working  group  on  direct  participation  embraced  the 
strict  approach  set  forth  in  this  non-binding  commentary. 

Other  experts  point  out  that  this  narrow  approach  creates  a  "revolving  door" 
through  which  the  direct  participant  passes  as  he  or  she  begins  and  completes  each 
mission.60  They  propose  an  alternative  which  locks  the  door  after  exit:  once  an  in- 
dividual has  opted  into  the  hostilities,  he  or  she  remains  targetable  until  unambig- 
uously opting  out.  Opting  out  can  occur  either  through  extended  non- 
participation  demonstrating  an  intention  to  desist  from  further  involvement,  or  an 
affirmative  act  of  withdrawal.  Although  it  may  be  difficult  to  determine  whether  a 
potential  target  has  opted  out,  since  the  individual  did  not  enjoy  any  privilege  to 
engage  in  hostilities  in  the  first  place,  it  is  reasonable  that  he  or  she  bear  the  risk  that 
the  other  side  is  unaware  of  withdrawal. 

This  is  the  better  interpretation  of  direct  participation.  In  international  hu- 
manitarian law,  gray  areas  must  be  interpreted  in  light  of  the  law's  underlying 
purposes — achieving  balance  between  military  necessity  and  humanitarian  con- 
cerns.61 A  revolving  door  would  throw  off  this  balance.  It  would  frustrate  combat- 
ants charged  with  combating  the  direct  participants,  and  combatants  frustrated 
with  legal  norms  constitute  a  risk  to  the  civilian  population.  Additionally,  the  re- 
strictive approach  would  paradoxically  create  a  situation  in  which  those  entitled  to 
use  force — lawful  combatants — would  enjoy  less  protection  than  those  not  so  enti- 
tled but  nevertheless  doing  so;  the  former  could  be  attacked  at  any  time,  whereas 
the  latter  could  only  be  attacked  while  deploying  to  and  from  an  operation  and 


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Michael  N.  Schmitt 


during  the  operation  itself.  From  a  military  necessity  perspective,  enemy  direct 
participants  would  unacceptably  enjoy  a  temporal  sanctuary.62 

The  LIT  standard  runs  counter  to  the  revolving- door  interpretive  approach.  For 
instance,  the  approach  begs  the  question  of  how  one  responds  to  the  sleeping- 
fighters  scenario  posed  by  those  responsible  for  LIT's  adoption.  By  strict  applica- 
tion of  the  revolving- door  approach,  the  sleeping  fighters  could  not  be  engaged. 
LIT  imposes  no  such  constraint.  Albeit  sleeping,  the  fighters  are  a  likely  and  identi- 
fiable threat.  There  need  be  no  debate  as  to  whether  their  sleeping  falls  within  the 
confines  of  deploying  to  or  from  an  operation.  By  contrast,  the  alternative  liberal 
interpretation  of  direct  participation  tracks  LIT  neatly.  Both  allow  attack  in  this 
and  similar  situations  in  which  the  direct  participant  is  taking  a  tactical  pause.  In- 
deed, these  are  precisely  the  sorts  of  scenarios  posed  by  critics  of  the  revolving- door 
approach  to  convincingly  point  out  its  impracticality. 

As  can  be  seen,  LIT  is  roughly  comparable  to  the  liberal  standard  of  direct  par- 
ticipation.63 Yet,  beyond  questions  as  to  the  scope  of  the  standard  lies  the  issue  of 
certainty.  With  LIT,  individuals  must  be  positively  identified  as  likely  threats  be- 
fore being  attacked.  This  requirement  poses  a  number  of  practical  and  legal  ques- 
tions. Central  among  them  is  the  requisite  type  and  degree  of  certainty.  What  does 
"positive"  mean  in  practice?  How  positive?  Beyond  a  reasonable  doubt?  More 
likely  than  not?  And  does  positive  identification  mean  that  the  individual  in  ques- 
tion is  likely  to  be  a  potential  threat  or,  instead,  likely  to  actually  threaten? 

Consider  the  requirement's  application  on  the  bewildering  battlefield  that  is  Af- 
ghanistan. What  indicators  should  suffice  in  making  a  positive  identification?  Per- 
haps carrying  weapons?  Yet,  many  non-participants  carried  weapons  in  Afghanistan 
for  self-protection.  Perhaps  the  weapons  (e.g.,  crew-served  weapons)  evidenced 
their  status  as  a  threat.  However,  recall  that  there  were  friendly  indigenous  forces 
armed  with  the  same  type  of  weapons,  and  that  identity  and  allegiances  were  diffi- 
cult to  discern.  And  what  type  of  intelligence  should  be  required  to  determine  that 
someone  was  a  likely  and  identifiable  threat?  Many  were  available  in  Afghanistan, 
but  which  sufficed?  Satellite  imagery,  unmanned  aerial  vehicle  (UAV)  imagery 
transmitted  in  real  time,  human  eyes  on  target,  cell  phone  intercepts,  human  intel- 
ligence? Finally,  there  is  the  critical  matter  of  whether  positive  identification  is  con- 
textual. That  is,  does  the  criterion  represent  a  constant  in  low-  and  high-risk 
environments,  or  does  high  risk  lower  the  threshold  necessary  for  positive  identifi- 
cation? In  Afghanistan,  both  environments  existed  at  various  times  and  places. 

Uncertainty  is  hardly  a  novel  phenomenon  on  the  battlefield.  That  being  so, 
States  have  tended  to  mandate  the  only  level  of  certainty  that  is  practicable  in  the 
fog  of  war — would  a  reasonable  warfighter  in  the  same  circumstances  hesitate  to 
act?  The  US  position  is  representative.  The  Commander's  Handbook  on  the  Law  of 

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Targeting  and  International  Humanitarian  Law  in  Afghanistan 

Naval  Operations  provides  that "  [c]  ombatants  in  the  field  must  make  an  honest  de- 
termination as  to  whether  a  particular  person  is  or  is  not  taking  a  direct  part  in  hos- 
tilities based  on  the  person's  behavior,  location,  and  attire,  and  other  information 
available  at  the  time."64 

International  humanitarian  treaty  law  also  addresses  battlefield  uncertainty.  Ar- 
ticle 50.1  of  Additional  Protocol  I  provides  that  "in  case  of  doubt  whether  a  person 
is  a  civilian,  that  person  shall  be  considered  to  be  civilian."65  Obviously,  the  article 
does  not  rule  out  doubt  altogether.  This  is  clear  from  the  ICRC  Commentary  on  the 
provision,  which  notes,  in  an  example  particularly  appropriate  to  Afghanistan,  "if 
combatants  do  not  clearly  distinguish  themselves  from  the  civilian  population  . . ., 
this  could  result  in  a  weakening  of  the  immunity  granted  civilians  and  the  civilian 
population."66  Such  weakening  could  occur  only  if  engagement  in  the  face  of  some 
doubt  was  contemplated  by  the  commentary.  The  UK  understanding  accompany- 
ing its  ratification  of  the  Protocol  similarly  adopts  a  contextual  reading.  It  states 
that  "the  rule . . .  applies  only  in  cases  of  substantial  doubt  still  remaining  after  [the 
required  assessment  of  the  attack],  and  [it  does  not  override]  a  commander's  duty 
to  protect  the  safety  of  troops  under  his  command  or  to  preserve  his  military  situa- 
tion, in  conformity  with  the  other  provisions  of  the  protocol."67  The  determinative 
term  is  "substantial."  Finally,  the  ICRC's  Customary  International  Humanitarian 
Law  study  reasonably  finds  that  "it  is  fair  to  conclude  that  when  there  is  a  situation 
of  doubt,  a  careful  assessment  has  to  be  made  under  the  conditions  and  restraints 
governing  a  particular  situation  as  to  whether  there  are  sufficient  indications  to 
warrant  attack.  One  cannot  automatically  attack  anyone  who  might  appear  dubi- 
ous."68 Use  of  the  phrase  "sufficient  indications"  suggests  that  absolute  certainty 
was  not  required. 

It  is  unclear  what  LIT  required  beyond  IHL's  "reasonable  warfighter  in  same  or 
similar  circumstances"  threshold.  Its  positive-identification  requirement,  absent 
clear  explication  to  the  contrary,  could  be  interpreted  as  suggesting  that  the  estab- 
lished IHL  frame  of  reference  had  been  rejected  in  lieu  of  a  more  restrictive  stan- 
dard. But,  if  so,  how?  Complicating  matters  even  further  is  the  fact  that  the  concept 
of  positive  identification  had  been  adopted  in  other  contexts.  For  instance,  it  was 
adopted  for  "kill  or  capture"  operations  to  heighten  the  preconditions  over  those 
applying  during  a  "capture  or  detain"  operation.69  So,  does  PID  mean  different 
things  in  different  types  of  operations?  Whatever  it  does  mean,  it  is  clear  that  PID 
was  at  least  as  restrictive  as  IHL — in  all  likelihood  more  so  in  application. 

Another  aspect  of  targeting  in  Afghanistan  relevant  to  an  IHL  analysis  was  the 
requirement  that  attacks  be  cleared  at  specified  levels  of  command.  As  noted  by 
one  director  of  combat  operations  in  the  Combined  Air  Operations  Center  during 
Operation  Anaconda, 

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Michael  N.  Schmitt 


[t]he  ROE  was  not  there  to  go  out  and  do  a  conventional  fight.  Under  the  rules  of 
engagement  for  Operation  Enduring  Freedom,  pre-planned  strikes,  interdiction 
targets  and  time-sensitive  targets  all  had  to  be  approved  by  USCENTCOM;  and  for  the 
most  part,  the  USCENTCOM/ J- 2  and  legal  advisors . . .  drove  what  we  did  and  did  not 

target.70 

His  comments  exemplified  the  concerns  senior  leadership  had  about  operations 
going  awry,  even  in  the  remotest  of  areas.71 

This  raises  the  issue  of  approval  level.  The  Anaconda  requirements  exceeded 
even  those  found  in  the  CDEM  approval  process.  Yet,  IHL  imposes  no  level  of 
strike  approval  tied  to  likely  levels  of  civilian  harm.  In  great  part,  this  is  because  law 
is  contextual.  The  degree  of  lawful  civilian  harm  is  determined  by  reference  to  the 
military  advantage  accruing  from  the  attack  in  question.  "Those  who  plan  or  de- 
cide upon  an  attack"  must  also  take  feasible  (practical  in  the  circumstances)  pre- 
cautions in  attack.72  In  other  words,  the  law  lies  where  it  falls — on  those  planning, 
approving  or  executing  attacks,  whoever  they  might  be.  This  tightening  of  the  re- 
strictions over  and  above  what  IHL  required  demonstrated  the  extent  to  which  Af- 
ghanistan ROE  and  CDEM  approval  levels  reflected  an  understanding  that 
unintended  civilian  harm  can  have  extra- normative  consequences. 

The  two  remaining  IHL  issues  raised  by  targeting  operations  in  Afghanistan  are 
the  principle  of  proportionality  and  requirement  to  take  feasible  precautions  in  at- 
tack. For  a  number  of  practical  reasons,  proportionality  posed  few  concerns.  From 
an  operational  perspective,  the  population  was  widely  dispersed,  engagements  of- 
ten occurred  in  remote  areas  and  no  major  urban  battles  took  place.  Precision  mu- 
nitions were  generally  available  when  called  for  and  intelligence,  surveillance  and 
reconnaissance  assets,  particularly  unmanned  aerial  vehicles,  could  be  used  to  as- 
sess and  monitor  target  areas,  often  in  real  time. 

Counterinsurgency  doctrine  and  practices  also  minimized  the  play  of  the  pro- 
portionality principle  in  the  conflict.  As  noted,  counterinsurgency  doctrine  puts  a 
high  premium  on  the  avoidance  of  collateral  damage;  in  Afghanistan,  even  attacks 
which  were  clearly  proportionate  were  often  avoided.  However,  counterinsur- 
gency affects  application  of  the  principle  in  a  less  obvious  fashion. 

In  conventional  operations,  proportionality  is  usually  calculated  in  simple  utilitarian 
terms:  civilian  lives  and  property  lost  versus  enemy  destroyed  and  military  advantage 
gained.  But  in  COIN  operations,  advantage  is  best  calculated  not  in  terms  of  how  many 
insurgents  are  killed  or  detained,  but  rather  which  enemies  are  killed  or  detained.  If 
certain  key  insurgent  leaders  are  essential  to  the  insurgents'  ability  to  conduct 
operations,  then  military  leaders  need  to  consider  their  relative  importance  when 
determining  how  best  to  pursue  them.  In  COIN  environments,  the  number  of  civilian 
lives  lost  and  property  destroyed  needs  to  be  measured  against  how  much  harm  the 

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Targeting  and  International  Humanitarian  Law  in  Afghanistan 

targeted  insurgent  could  do  if  allowed  to  escape.  If  the  target  in  question  is  relatively 
inconsequential,  then  proportionality  requires  combatants  to  forego  [sic]  severe  action, 
or  seek  noncombative  means  of  engagement.73 

This  extract  from  the  COIN  manual  is  overstated.  As  a  matter  of  law,  the  military 
importance  of  the  individuals  targeted  is  always  relevant,  whether  in  conventional 
or  counterinsurgency  operations.  However,  the  fact  that  the  goal  of  an  insurgency 
is  not  attrition  of  enemy  forces  means  that  the  military  advantage  of  killing  a  simple 
fighter  is  likely  not  as  high  as  during  attrition  warfare,  in  which  victory  is  achieved 
through  serial  destruction  of  enemy  forces. 

Reduced  to  basics,  in  Afghanistan  the  operational  concern  was  the  mere  fact  of 
collateral  damage,  not  whether  that  damage  expected  to  be  caused  was  excessive 
relative  to  military  advantage.  Rules  of  engagement  so  embraced  this  casualty  aver- 
sion that  the  legal  principle  of  proportionality  never  loomed  large. 

The  case  of  human  shields  exemplifies  the  extent  to  which,  in  the  context  of  pro- 
portionality, policy  and  operational  considerations  swallowed  legal  requirements. 
Human  Rights  Watch  has  documented  the  Taliban's  widespread  use  of  human 
shields,74  acts  which  undeniably  violated  international  humanitarian  law.75 

Many  experts  correctly  argue  that  voluntary  shields  are  direct  participants  in 
hostilities  who,  therefore,  do  not  factor  into  proportionality  calculations.  As  to  in- 
voluntary shielding,  the  practice  most  prominent  in  Afghanistan,  the  weight  of 
opinion  holds  that  its  victims  remain  civilians  factored  fully  into  any  proportional- 
ity analysis.76  This  approach  reflects  Additional  Protocol  I,  Article  5 1 .8's  caveat  that 
"any  violation  of . . .  [inter  alia,  the  provision  prohibiting  the  use  of  shields]  shall 
not  release  the  Parties  to  the  conflict  from  their  legal  obligations  with  respect  to  the 
civilian  population  and  civilians  . . .  ."77 

There  have  been  no  serious  allegations  that  US  forces  ever  ignored  the  presence 
of  human  shields.  On  the  contrary,  CDEM  specifically  mandates  consideration  of 
the  presence  of  human  shields;  such  presence  elevates  the  required  approval  level. 
Recall  also  that  rules  of  engagement  and  other  operational  guidelines  in  Afghani- 
stan often  required  US  forces  to  withdraw  if  the  enemy  was  collocated  with  civil- 
ians. Because  US  forces  were  already  bound  by  policy  and  operational 
requirements  exceeding  those  of  IHL,  the  use  of  human  shields  neither  compli- 
cated application  of  the  existing  legal  norms  nor  created  pressure  for  a  relaxed  in- 
terpretation thereof. 

Counterinsurgency  operations  raise  a  final  theoretical  question  as  to  propor- 
tionality: Does  collateral  damage  directly  influence  the  degree  of  military  advan- 
tage accruing  from  an  attack  (as  distinct  from  the  determination  of  whether 
collateral  damage  is  excessive  relative  to  military  advantage)?  An  analogous  issue  is 


322 


Michael  N.  Schmitt 


force  protection.  During  Operation  Allied  Force,  NATO  aircraft  flew  at  altitudes 
outside  the  threat  envelope  of  Federal  Republic  of  Yugoslavia  air  defenses.  Albeit 
counterfactual,  allegations  surfaced  that  this  tactic  heightened  risk  to  the  civilian 
population.  The  affair  has  generated  a  lively  academic  debate  over  whether  survival 
of  the  aircrew  and  aircraft  should  be  considered  military  advantage  when  making 
proportionality  calculations.78 

The  case  of  Afghanistan  presents  the  opposite  case.  If  aircrew  and  aircraft  sur- 
vival enhance  military  advantage,  does  the  counterproductive  nature  of  collateral 
damage  during  a  counterinsurgency  detract  from  it?  After  all,  avoidance  of  collat- 
eral damage  constitutes  an  express  objective  in  such  conflicts. 

Although  it  is  not  the  place  to  resolve  this  complex  issue,  it  is  important  to  un- 
derstand that,  as  a  rule,  military  advantage  is  typically  viewed  as  advantage  benefit- 
ing friendly  operations  or  hindering  the  enemy's.79  The  notion  does  not  extend  to 
winning  hearts  and  minds,  a  point  illustrated  by  agreement  that  destroying  enemy 
civilian  morale  does  not  qualify  as  advantage  vis-a-vis  the  definition  of  military  ob- 
jective.80 Rather,  military  advantage  is  purely  military  in  nature;  there  must  be 
some  direct  contribution  to  military  operations.  Political,  economic  or  social  ad- 
vantage does  not  suffice. 

This  being  so,  any  assertion  that  collateral  damage  should  diminish  military  ad- 
vantage would  have  to  be  supported  by  a  direct  nexus  to  military  factors.  While 
true  that  collateral  damage  motivates  civilian  sympathy  for  the  enemy,  such  gen- 
eral effects  are  too  attenuated.  As  a  general  rule,  then,  collateral  damage  plays  no 
part  in  proportionality  calculations  beyond  being  measured  against  the  yardstick 
of  excessiveness. 

The  final  area  of  consideration  is  the  requirement  to  take  precautions  in  at- 
tack. Codified  in  Additional  Protocol  I,  Article  57,  it  requires  an  attacker  to  mini- 
mize collateral  damage  by  taking  feasible  steps  to  avoid  and,  in  any  event, 
minimize  "incidental  loss  of  civilian  life,  injury  to  civilians  and  damage  to  civilian 
objects."  Precautions  include  both  target  verification  and  choosing  among  avail- 
able targets,  weapons  and  tactics  so  as  to  lessen  the  impact  of  an  attack  on  the  ci- 
vilian population. 

In  modern  conflicts,  critics  increasingly  condemn  targeting  operations  for  fail- 
ure to  comply  with  the  requirement.  This  phenomenon  results,  in  part,  from  the 
fact  that  the  globalized  media  and  non-governmental  organizations,  employing 
modern  communications  technology,  have  a  powerful  ability  to  focus  attention  on 
civilian  casualties  and  harm  to  civilian  objects.  Collateral  damage  is  easily  grasped 
when  viewed  in  the  media;  understanding  the  complexity  of  mounting  a  modern 
attack  is  not.  Thus,  perceptions  can  become  distorted. 


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Targeting  and  International  Humanitarian  Law  in  Afghanistan 

Further,  the  availability  of  advanced  intelligence,  surveillance  and  reconnais- 
sance assets,  especially  UAVs  and  precision  weaponry,  such  as  the  small-diameter 
bomb,81  has  created  the  false  impression  that  technology  makes  "zero  collateral 
damage"  attacks  possible.  The  result  is  a  recurring  sense  that  failure  to  take  precau- 
tions is  the  only  possible  explanation  for  civilian  damage,  injuries  and  deaths.82 

Reports  on  US  and  coalition  operations  in  Afghanistan  exemplify  this  tendency. 
For  instance,  the  Human  Rights  Watch  report  on  the  conflict,  Troops  in  Contact, 
asserts  that  "[t]he  cases  described  here  raise  concerns  as  to  whether  the  attacking 
forces  acted  in  accordance  with  their  obligation  under  the  laws  of  war  to  exercise 
'constant  care  to  spare  the  civilian  population'  and  take  'all  feasible  precautions'  to 
minimize  loss  of  civilian  life."83 

Human  Rights  Watch  displayed  a  sophisticated  understanding  of  targeting  pro- 
cedures during  the  conflict.  The  organization  found  that  "when  aerial  bombing  is 
planned,  mostly  against  suspected  Taliban  targets,  US  and  NATO  forces  in  Af- 
ghanistan have  had  a  very  good  record  of  minimizing  harm  to  civilians  .  . .  ,"84  It 
explained, 

[p]lanned  attacks  allow  the  US  and  NATO  to  use  civilian  risk  mitigation  procedures, 
including  formal  risk  estimates  to  model  and  minimize  civilian  casualties.  This 
includes  a  "pattern  of  life  analysis,"  which  looks  for  civilians  in  the  area  for  hours  or 
days  before  an  attack  using  "eyes  on  the  target"  ranging  from  ground  observers  to 
technical  reconnaissance.  According  to  NATO  Judge  Advocate  General  (JAG)  staff,  the 
US  and  NATO  also  require  positive  visual  identification  of  the  target  during  a  planned 
strike,  allowing  the  pilot  to  look  for  civilians  and  call  off  an  attack  based  on  those 
observations.  Planned  strikes  also  allow  the  US  and  NATO  to  develop  a  target  over 
time,  thereby  using  far  more  detailed  intelligence  to  understand  who  is  and  is  not  in  the 
target  area.85 

Most  casualties  were  caused,  by  contrast,  during  non-preplanned  strikes.  These 
TIC  situations  occurred  when  US  or  coalition  forces  came  upon  the  enemy  unex- 
pectedly. Although  the  rules  of  engagement  provided  that  forces  should  withdraw 
when  civilians  were  in  the  vicinity  of  an  attack,  doing  so  was  not  always  possible. 
For  instance,  it  might  expose  them  to  greater  risks  or  the  path  of  retreat  may  have 
been  cut  off  by  the  enemy.  The  report  also  pointed  to  cases  which  "began  as  TICs 
but  lasted  for  several  hours  or  days,  with  airstrikes  used  to  support  small  troop 
numbers  on  the  ground  resulting  in  civilian  deaths."86 

Human  Rights  Watch  expressed  numerous  concerns  about  such  engagements. 
With  regard  to  TICs  that  developed  into  prolonged  battles,  the  organization 
opined  that  the  resulting  civilian  casualties  "suggest  [ed]  that  the  US  is  not  taking 
all  feasible  precautions  during  prolonged  battles,  including  using  adequate  forces 


324 


Michael  N.  Schmitt 


to  minimize  civilian  harm,  employing  low-collateral  damage  bombs,  and  posi- 
tively identifying  the  locations  of  combatants  and  civilians."87  It  also  suggested  that 
while  preplanned  attacks  involved  intricate  procedures  to  determine  the  presence 
of  civilians,  during  a  TIC  the  "tactical  collateral  damage  assessment  performed  by 
the  Joint  Terminal  Attack  Controller  (JTAC),  a  service  member  qualified  in  direct- 
ing airstrikes  on  the  ground[,]  is  one  of  the  only  checks  done,  and,  of  necessity, 
such  assessments  often  are  made  under  the  stress  of  hostile  fire."88 

While  Troops  in  Contact  is  the  best  report  produced  by  the  organization  on  in- 
ternational humanitarian  law  in  recent  conflicts,89  its  analysis  of  the  precautions  in 
attack  norms  misses  several  key  points.  As  it  did  in  its  report  on  Operation  Iraqi 
Freedom,  Human  Rights  Watch  appears  to  have  imposed  a  rebuttable  presump- 
tion that  collateral  damage  evidences  a  failure  to  take  sufficient  precautions  in  at- 
tack. This  shifts  the  burden  to  the  attacker,  who  by  this  approach  must 
demonstrate  that  it  complied  with  precautions  norms.  That  this  is  so  is  illustrated 
by  a  flawed  tendency  to  allege  failure  to  take  feasible  precautions  without  identify- 
ing or  developing  those  which  were  presumably  available,  but  ignored. 

"Feasible  precautions"  have  been  defined  as  "precautions  which  are  practicable 
or  practically  possible  taking  into  account  all  circumstances  ruling  at  the  time,  in- 
cluding humanitarian  and  military  considerations."90  Consider  the  suggestions 
cited  above.  Albeit  reasonable  in  the  abstract,  there  is  no  support  in  the  report  for 
the  proposition  that  they  were  feasible  in  the  sense  of  being  practical  in  the  circum- 
stances at  hand.  For  instance,  were  additional  troops  on  hand  that  could  have  been 
deployed  to  minimize  civilian  harm?  Or  were  low-collateral-damage  bombs 
readily  available,  either  at  bases  from  which  aircraft  launched  or  aboard  the  attack- 
ing aircraft  (since  many  attacks  were  conducted  by  aircraft  to  which  targets  were 
passed  while  already  airborne)?  As  to  the  fact  that  only  JTACs  generally  had  eyes  on 
target,  one  must  query  what  the  alternative  might  have  been.  What  seems  to  have 
been  missed  is  that,  as  a  matter  of  law,  the  feasible-precautions-in-attack  require- 
ments only  apply  when  there  are  practical  alternatives  available  to  the  attacker.  The 
burden  of  demonstrating  non-compliance  lies  with  those  asserting  violation  of  the 
requirements,  not  the  forces  executing  the  attack. 

In  contrast  to  the  LIT  criterion  for  engagement,  self-defense  was  much  clearer, 
since  it  is  a  standard  to  which  US  and  other  forces  train  and  with  which  they  are, 
therefore,  familiar.  Self-defense  presents  no  status  issues  because  anyone  against 
whom  self-defense  is  necessary  can  be  engaged.  Further,  it  poses  no  direct- 
participation-in-hostilities  concerns,  because  only  those  who  are  actually  attack- 
ing, or  about  to  attack,  are  liable  to  being  engaged  defensively.  Accordingly,  neither 
the  scope  nor  the  timing  debates  infecting  direct-participation  analysis,  and,  corre- 
spondingly, the  LIT  criterion,  surface. 

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Targeting  and  International  Humanitarian  Law  in  Afghanistan 

Be  that  as  it  may,  even  self-defense  proved  troublesome  in  Afghanistan.  As  is  of- 
ten the  case  with  application  of  rules  of  engagement,  mission  accomplishment 
standards  tended  to  slip  into  application  of  self-defense  principles.91  The  condition 
precedent  for  acting  in  self-defense  is  either  a  hostile  act  or  a  demonstration  of  hos- 
tile intent.92  For  US  forces,  this  standard  is  codified  in  the  Standing  Rules  of  En- 
gagement. Both  criteria  reflect  the  self-defense  concept  of  military  necessity,  by 
which  force  may  only  be  used  if  lesser  means  of  addressing  the  threat  are  likely  not 
to  suffice. 

In  preparing  for  combat  in  Afghanistan,  "considerable  time  and  effort  was  spent 
attempting  to  create  training  packages  aimed  at  developing  a  specific  level  of  iden- 
tification before  either  returning  fire  or  taking  other  actions  in  response  to  a  hostile 
act  or  demonstration  of  hostile  intent."93  Identification  has  no  place  in  self-defense 
situations,  other  than  to  locate  the  source  of  the  hostile  act  or  demonstration  of 
hostile  intent.  It  is  instead  an  element  of  mission  accomplishment  rules  of  engage- 
ment, by  which  forces  are  authorized  to  attack  combatants  and  direct  participants 
only  once  they  have  been  reliably  identified  as  such. 

It  is  well-accepted  that  intermingling  mission  accomplishment  and  self-defense 
notions  in  rules  of  engagement  risks  causing  those  who  need  to  act  in  self-defense 
to  hesitate,  thereby  endangering  themselves  and  others  in  their  units.  Moreover, 
US  training  emphasizes  that  there  is  no  need  to  seek  higher  approval  in  self-defense 
situations,  for  delay  may  impede  the  ability  of  troops  to  defend  themselves.  It  is 
only  in  mission  accomplishment  rules  of  engagement  that  engagement  approval 
levels  appear.  Conflating  the  two  types  of  rules  of  engagement  can  confuse  troops 
at  the  tactical  level,  causing  them  to  act  precipitously  when  they  should  be  seeking 
higher  approval  in  a  mission  accomplishment  engagement. 

A  further  self-defense  complication  derived  from  the  fact  that  US  and  NATO 
forces  operated  in  the  same  theater.  Both  used  "hostile  intent"  as  a  criterion  for 
employing  airpower  in  defensive  operations  employing  airpower.94  However, 
NATO  defined  the  term  as  "manifest  and  overwhelming"  force,  whereas  the  US 
standard  was  "the  threat  of  imminent  use  of  force."95  In  other  words,  the  NATO 
standard  placed  greater  emphasis  on  the  necessity  criterion  of  self-defense  and  was 
more  restrictive  temporally.  Employing  the  same  term  differently  created  confu- 
sion regarding  the  availability  of  air  support  in  TIC  situations,  especially  when  US 
and  NATO  forces  were  supporting  each  other.  It  also  created  an  impression  that 
the  US  forces  were  quick  to  pull  the  trigger.  As  one  ambassador  in  the  country  told 
Human  Rights  Watch,  "[s]ome  Afghans  think  the  US  is  worse  than  the  Russians. 
The  problem  is  in  the  TIC  they  call  in  air  support  in  a  hurry,  and  special  forces  go 
too  far  on  the  ground  and  call  in  airstrikes  too  often.  There  is  a  cultural  problem 


326 


Michael  N.  Schmitt 


with  the  US — they  are  cowboys."96  Since  counterinsurgencies  seek  support  of  the 
population,  such  perceptions,  whether  correct  or  not,  prove  costly. 

Finally,  the  mere  notion  of  a  self-defense  rule  of  engagement  is  misplaced  in 
armed  conflicts.  This  is  so  not  only  because  combatants  are  always  lawful  targets, 
but  also  due  to  the  fact  that  the  concept  of  direct  participation  already  permits  en- 
gaging anyone  who  is  attacking  or  about  to  attack.  The  debate  over  the  scope  of  di- 
rect participation  has  no  bearing  in  this  regard;  all  sides  agree  that  acts  which 
constitute  a  hostile  act  or  a  demonstration  of  hostile  intent  in  the  self-defense  sense 
qualify  as  acts  of  direct  participation.  The  controversy  over  the  "for  such  time"  cri- 
terion is  equally  irrelevant,  since  the  term  undeniably  includes  the  period  when  an 
attack  is  imminent  or  under  way  (the  self-defense  period). 

Consequently,  the  only  legally  relevant  circumstance  for  self-defense  during  an 
armed  conflict  is  defense  against  those  who  do  not  meet  the  scope  requirements  of 
direct  participation,  specifically  that  requiring  a  belligerent  nexus  to  the  hostilities. 
Expanding  self-defense  beyond  such  situations  by  giving  it  a  central  role  in  engage- 
ment guidance  was,  therefore,  unusual  as  an  operational  matter  and  unnecessary 
as  a  matter  of  law.  Doing  so  represented  yet  another  policy  and  operational  deci- 
sion ratcheting  back  what  was  allowed  by  international  humanitarian  law. 

Concluding  Thoughts 

What  is  fascinating  about  the  application  of  IHL  in  Afghanistan  (and  other  recent 
conflicts)  is  that  its  foundational  premise  seems  to  have  been  turned  on  its  head. 
International  humanitarian  law  is  designed  for  classic  attrition  warfare,  where  each 
side  tries  to  so  wear  down  the  enemy  forces  that  they  can  no  longer  continue  fight- 
ing. The  St.  Petersburg  Declaration  principle  that  law  fixes  the  "limits  at  which  the 
necessities  of  war  ought  to  yield  to  the  requirements  of  humanity"  comported 
neatly  with  warfare  along  such  lines.97  Both  sides  sought  to  avoid  excessive  restric- 
tions on  their  military  actions,  but  both  also  wanted  to  ensure  the  protection  of 
their  civilian  populations.  Military  necessity  and  civilian  harm  were  counterpoised 
in  a  zero-sum  game. 

However,  this  traditional  balance  began  to  be  stressed  by  the  emergence  of  coer- 
cive warfare,  in  which  the  objective  is  not  to  defeat  the  enemy,  but  rather  to  affect  a 
decisionmaker's  calculations.  NATO's  air  campaign  in  1999  (Operation  Allied 
Force),  during  which  the  goal  was  to  convince  Slobodan  Milosevic  to  stop  slaugh- 
tering the  Kosovar  Albanians  and  return  to  the  negotiating  table,  best  illustrates 
coercive  warfare  in  the  contemporary  context.98  The  dilemma  was  that  some  of 
those  assets,  the  destruction  of  which  would  most  effectively  have  such  effects 
(such  as  property  owned  by  the  State's  leader),  qualified  as  protected  civilian 

327 


Targeting  and  International  Humanitarian  Law  in  Afghanistan 

property  under  international  humanitarian  law.  The  ensuing  calls  for  a  relaxation 
of  the  lex  lata  should  have  come  as  no  surprise." 

Counterinsurgency  warfare,  in  that  it  seeks  to  win  hearts  and  minds,  constitutes 
"persuasive"  warfare,  that  is,  warfare  designed  to  influence  the  population  of  the 
State  in  which  an  insurgency  is  under  way,  and,  to  a  lesser  extent,  international 
public  and  governmental  opinion.  Since  collateral  damage  hinders  military  opera- 
tions by  undercutting  domestic  and  international  support  and  by  increasing  insur- 
gent strength,  strict  compliance  with  IHL  norms  actually  complements  military 
necessity.  Accordingly,  as  in  Afghanistan,  counterinsurgent  forces  often  adopt  re- 
strictions on  their  operations  that  far  outstrip  those  found  in  the  law.  Humanitar- 
ians and  counterinsurgency  warfighters  paradoxically  find  themselves  in  lockstep. 

Their  perspectives  on  the  practices  may,  nevertheless,  conflict.  Although  the  re- 
strictions originate  as  context-specific  operational  and  policy  choices,  humanitari- 
ans tend  to  style  them  as  normative.  As  a  matter  of  law,  the  crux  of  the  issue  is 
whether  such  restrictions  comprise  State  practice  bearing  on  the  emergence  of  cus- 
tomary international  law  norms. 

The  ICRC's  Customary  International  Humanitarian  Law  study  notes  that  "both 
physical  and  verbal  acts  of  States  constitute  practice  that  contributes  to  the  creation 
of  customary  international  law.  Physical  acts  include,  for  example,  battlefield  be- 
havior. . . .  Verbal  acts  include  military  manuals  . . .  instructions  to  armed  and  secu- 
rity forces,  military  communiques  during  war "10°  But  what  must  be  emphasized 

is  that  State  practice  matures  into  customary  law  only  when  it  evidences  opinio 
juris  sive  necessitatis,  a  belief  on  the  part  of  States  engaging  in  said  practice  that  it  is 
legally  obligatory.101  Clearly,  the  extensive  restrictions  placed  on  US  and  coalition 
forces  in  Afghanistan  did  not  result  from  legal  concerns,  but  rather  apprehension 
that  even  legal  collateral  damage  would  prove  counterproductive  in  the  specific 
context  of  Afghanistan.  In  other  words,  they  did  not  rise  to  the  level  of  State  prac- 
tice which  would  evidence  the  emergence  of  international  humanitarian  law 
norms  more  restrictive  than  those  already  extant. 

Be  that  as  it  may,  warfighters,  commentators  and  judge  advocates  often  conflate 
the  distinction  between  humanitarian  law  and  rules  of  engagement  (and  other  en- 
gagement mandates).  The  latter  include  not  only  elements  of  law,  but  also  opera- 
tional and  policy  dictates.  Because  ROE  are  the  actual  norms  applicable  on  a 
battlefield,  many  observers  lose  sight  of  the  difference,  thereby  distorting  assess- 
ments of  State  practice.102  One  can  imagine  that  the  CDEM  process,  for  instance, 
might  foster  expectations  that  greater  collateral  damage  requires  a  higher  level  of 
approval  authority.  Similarly,  the  LIT  concept  risks  suggesting  that  there  is  no  lon- 
ger any  military  necessity  in  declaring  combatants  hostile,  as  permitted  in  IHL. 


328 


Michael  N.  Schmitt 


Ultimately,  the  conduct  of  hostilities  in  Afghanistan  illustrated  a  shift  from  law 
toward  legitimacy.  As  governments,  non-governmental  organizations,  academics 
and  others  raise  expectations,  there  is  decreasing  emphasis  on  strict  legal  analysis. 
In  Afghanistan,  for  instance,  authorization  to  conduct  attacks  which  would  oth- 
erwise comport  with  the  proportionality  principle  was  sometimes  denied  as  risk- 
ing "bad  press"  or  negative  communicative  consequence.  The  requirement  to 
take  feasible  precautions  in  attack  seems  to  be  slowly  slipping  toward  a  standard 
of  all  possible  precautions. 

Clearly,  law  is  playing  a  lesser  role  in  targeting  than  it  has  in  past  conflicts.  This 
lesson  has  not  been  lost  on  enemy  forces,  who  increasing  employ  lawfare — the  use 
of  law  as  a  "weapon"  employed  to  create  the  impression,  correct  or  not,  that  an  op- 
ponent acts  lawlessly,  thereby  undercutting  support  for  the  war  effort.103  In  the  face 
of  this  strategy,  there  is  even  greater  motivation  for  operating  at  levels  of  caution 
far  exceeding  the  IHL's  mandates.  But  doing  so  only  exacerbates  the  blurring  of  le- 
gal, policy  and  operational  practices. 

Prosecuting  a  conflict  to  the  limit  of  the  law  to  prevent  erosion  of  the  military 
necessity  aspect  of  international  humanitarian  law  is  self-evidently  not  the  answer. 
At  least  in  a  counterinsurgency  doing  so  would  sacrifice  victory  on  the  altar  of  prin- 
ciple. Nevertheless,  rules  of  engagement  and  other  targeting  restrictions  should  be 
crafted  in  a  way  that  reflects  the  content,  structure,  function  and  accepted  termi- 
nology of  this  body  of  law.  Afghanistan  should  serve  as  a  warning  that  understand- 
ing and  communicating  the  difference  between  law,  on  the  one  hand,  and 
operational  and  policy  choices,  on  the  other,  remains  imperative. 

Notes 

1.  Protocol  Additional  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  International  Armed  Conflicts  art.  49.1,  June  8, 1977, 1125  U.N.T.S.  3, 
reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR  422  (Adam  Roberts  8c  Richard  Guelffeds.,  3d 
ed.  2000)  [hereinafter  AP  I]. 

2.  The  accepted  definition  of  international  armed  conflict  is  found  in  Common  Article  2  of 
the  four  1949  Geneva  Conventions:  "[A]  11  cases  of  declared  war  or  of  any  other  armed  conflict 
which  may  arise  between  two  or  more  [States] ,  even  if  the  state  of  war  is  not  recognized  by  one  of 
them."  Convention  for  the  Amelioration  of  the  Condition  of  the  Wounded  and  Sick  in  Armed 
Forces  in  the  Field  art.  2,  Aug.  12,  1949,  6  U.S.T.  3114,  75  U.N.T.S.  31  [hereinafter  GC  I];  Con- 
vention for  the  Amelioration  of  the  Condition  of  Wounded,  Sick  and  Shipwrecked  Members  of 
Armed  Forces  at  Sea  art.  2,  Aug.  12, 1949, 6  U.S.T.  3217, 75  U.N.T.S.  85  [hereinafter  GC  II];  Con- 
vention Relative  to  the  Treatment  of  Prisoners  of  War  art.  2,  Aug.  12,  1949,  6  U.S.T.  3316,  75 
U.N.T.S.  135  [hereinafter  GC  III];  and  Convention  Relative  to  the  Protection  of  Civilian  Persons 
in  Time  of  War  art.  2,  Aug.  12, 1949, 6  U.S.T.  3516,  75  U.N.T.S.  287  [hereinafter  GC  IV]:  all  re- 
printed in  id.  at  197,  222,  244  and  301,  respectively. 


329 


Targeting  and  International  Humanitarian  Law  in  Afghanistan 

3.  See,  e.g.,  Derek  Jinks,  The  Applicability  of  the  Geneva  Conventions  to  the  "Global  War  on 
Terrorism,"  46  VIRGINIA  JOURNAL  OF  INTERNATIONAL  LAW  165,  177-90  (2005).  In  2002,  Presi- 
dent George  Bush  concluded  that  the  conflict  with  Al  Qaeda  was  "international  in  scope."  Mem- 
orandum from  George  W.  Bush  to  the  Vice  President  et  al.,  Subject:  Humane  Treatment  of  Al 
Qaeda  and  Taliban  Detainees  para.  2(c)  (Feb.  7,  2002),  reprinted  in  THE  TORTURE  PAPERS:  THE 
ROAD  TO  ABU  GHRAIB  134  (Karen  J.  Greenberg  &  Joshua  Dratel  eds.,  2005).  Four  years  later,  the 
Supreme  Court  disagreed,  finding  a  conflict  with  transnational  terrorists  to  be  "not  of  an  inter- 
national character,"  as  that  term  is  employed  in  Common  Article  3  to  the  1949  Geneva  Conven- 
tions. Hamdan  v.  Rumsfeld,  126  S.Ct.  2749,  2795-97  (2006).  The  International  Committee  of 
the  Red  Cross  takes  the  position  that  transnational  terrorism,  absent  a  nexus  to  either  an  interna- 
tional or  non-international  armed  conflict,  fails  to  qualify  as  an  armed  conflict  in  the  first  place. 
See  International  Committee  of  the  Red  Cross,  International  Humanitarian  Law 
and  the  Challenges  of  Contemporary  Armed  Conflicts  7-8,  available  at  http://www 
.icrc.orgAVeb/eng/siteeng0.nsf/htmlalVihl-30-international-conference-101207/$File/IHL-challenges 
-30th-International-Conference-ENG.pdf  [hereinfter  IHL  and  the  Challenges  of  Contemporary 
Armed  Conflicts]. 

4.  Despite  its  illegitimacy,  and  non-recognition  by  most  States,  the  Taliban  constituted  the 
de  facto  government  of  Afghanistan  in  that  it  controlled  the  greatest  amount  of  territory  and 
generally  exercised  the  normal  functions  of  governance.  As  noted  by  Yoram  Dinstein,  "[n]o  for- 
mal recognition  is  required  by  a  belligerent  State  as  to  the  statehood  of  the  opposing  side.  As  long 
as  the  adversary  satisfies  objective  criteria  of  statehood  under  international  law,  any  armed  con- 
flict between  two  belligerent  Parties  would  be  characterized  as  inter-State."  YORAM  DINSTEIN, 
The  Conduct  of  Hostilities  in  the  Law  of  International  Armed  Conflict  16  (2004). 
Therefore,  in  humanitarian  law  terms,  the  conflict  in  Afghanistan  between  the  Taliban  forces 
(and  organized  armed  groups  supporting  the  Taliban)  and  the  US-led  coalition  was  an  interna- 
tional armed  conflict. 

5.  S.C.  Res.  1419,  U.N.  Doc.  S/RES/1419  (June  26,  2002).  Additional  Protocol  II  to  the 
Geneva  Conventions,  which  addresses  non-international  armed  conflict,  does  not  apply  to  the 
conflict  because  Afghanistan  is  not  a  party  to  the  instrument;  even  if  it  was,  the  conflict  would 
not  meet  the  threshold  criteria  set  forth  in  Article  1.1.  Protocol  Additional  to  the  Geneva  Con- 
ventions of  12  August  1949,  and  Relating  to  the  Protection  of  Victims  of  Non-International 
Armed  Conflicts  art.  1.1,  June  8,  1977,  1125  U.N.T.S.  609,  reprinted  in  DOCUMENTS  ON  THE 
LAWS  OF  WAR,  supra  note  1,  at  483.  However,  the  conflict  does  meet  the  threshold  criteria  of 
Common  Article  3,  to  which  Afghanistan  is  a  party,  as  an  "armed  conflict  not  of  an  international 
character,"  as  well  as  those  contained  in  customary  international  law.  GC  I,  II,  III,  IV,  supra  note  2, 
art.  3;  MICHAEL  N.  SCHMITT,  CHARLES  H.B.  GARRAWAY  &  YORAM  DINSTEIN,  THE  MANUAL  ON 
THE  LAW  OF  NON-INTERNATIONAL  ARMED  CONFLICT,  Rule  1.1.1  and  accompanying  commen- 
tary (2006),  reprinted  in  36  ISRAEL  YEARBOOK  ON  HUMAN  RIGHTS  (2006)  (Special  Supplement), 
available  at  http://www.michaelschmitt.org/images/Manual%5Bl%5D. Final.BrilL.pdf  [herein- 
after NIAC  Manual] . 

6.  This  is  the  position  taken  by  the  International  Committee  of  the  Red  Cross  (ICRC).  See 
IHL  and  the  Challenges  of  Contemporary  Armed  Conflicts,  supra  note  3,  at  8.  However,  some 
experts  see  a  continuing  international  armed  conflict,  existing  beside  the  non-international  one, 
with  Al  Qaeda  and  related  transnational  terrorist  groups. 

7.  AP  I,  supra  note  1,  art.  48.  In  the  Tadic  case,  the  International  Criminal  Tribunal  for  the 
former  Yugoslavia  Appeals  Chamber  held  that  the  principle  of  distinction,  which  lies  at  the  heart 
of  the  law  of  targeting,  applies  in  non-international  armed  conflict.  By  the  decision,  customary 
rules  had  developed  to  govern  "internal  strife,"  covering 


330 


Michael  N.  Schmitt 


such  areas  as  protection  of  civilians  from  hostilities,  in  particular  from  indiscriminate 
attacks,  protection  of  civilian  objects,  in  particular  cultural  property,  protection  of  all 
those  who  do  not  (or  no  longer)  take  active  part  in  hostilities,  as  well  as  prohibition  of 
means  of  warfare  proscribed  in  international  armed  conflicts  and  ban  of  certain 
methods  of  conducting  hostilities. 

Prosecutor  v.  Tadic,  Case  No.  IT-94-1,  Decision  on  Defence  Motion  for  Interlocutory  Appeal  on 
Jurisdiction  para.  127  (Oct.  2,  1995).  The  Tribunal  cited  General  Assembly  Resolution  2444, 
which  recognized  the  "necessity  of  applying  basic  humanitarian  principles  in  all  armed  conflict." 
Id,  para.  110,  citing  G.A.  Res.  2444  (XXIII),  U.N.  Doc.  A/7218  (Dec.  19,  1968),  Respect  for 
Human  Rights  in  Armed  Conflicts,  reprinted  in  THE  LAWS  OF  ARMED  CONFLICT  511  (Dietrich 
Schindler  &  Jiri  Toman  eds.,  4th  ed.  2004).  The  United  States  later  recognized  the  Resolution  as 
"declaratory  of  existing  customary  international  law."  Letter  from  J.  Fred  Buzhardt,  General 
Counsel  of  the  Department  of  Defense,  to  Senator  Edward  Kennedy  (Sept.  22, 1972),  excerpted  in 
A.  Rovine,  Contemporary  Practice  of  the  United  States  Relating  to  International  Law,  67 
American  Journal  of  International  Law  1 18, 122  (1973).  See  also  NIAC  Manual,  supra 

note  5,  at  11;  CUSTOMARY  INTERNATIONAL  HUMANITARIAN  LAW  25-29  (Rule  7  and 
accompanying  commentary)  (Jean-Marie  Henckaerts  &  Louise  Doswald-Beck  eds.,  2005) 
[hereinafter  CIHLS];  COMMENTARY  ON  THE  ADDITIONAL  PROTOCOLS  OF  8  JUNE  1977  TO  THE 
GENEVA  CONVENTIONS  OF  12  AUGUST  1949  para.  4761  (Yves  Sandoz,  Christophe  Swinarski  8c 
Bruno  Zimmermann  eds.,  1987)  [hereinafter  AP  I  Commentary]. 

8.  The  US  Army  has  cited  complexity  as  a  major  factor  in  future  operations.  In  particular,  it 
points  to  three  especially  relevant  manifestations:  complex  physical  terrain,  complex  human  ter- 
rain and  complex  informational  terrain. 

In  the  face  of  overwhelming  U.S.  combat  power,  future  adversaries  can  be  expected  to 
conduct  operations  more  frequently  from  the  shelter  of complex  physical  terrain  (urban, 
jungle/forest,  and  mountain).  Such  terrain  typically  comprises  a  mosaic  of  open 
patches  and  highly  restrictive  terrain,  with  the  potential  to  minimize  exposure  to 
superior  firepower,  inflict  higher  U.S.  casualties,  and  prolong  the  conflict.  Urban 
defenses,  in  particular,  will  tend  to  reduce  U.S.  advantages  in  overhead  information 
collection,  tactical  mobility,  and  long-range  precision  fires,  instead  placing  a  premium 
on  dismounted  maneuver,  direct  fires,  ground  reconnaissance,  HUMINT,  and  the 
troop  strength  needed  to  conduct  them. 

An  urban  setting  also  invites  adversaries  to  exploit  public  sensitivities  to  collateral 
damage  and  civilian  casualties,  and  tends  to  magnify  the  perceived  costs  of  protracted 
conflict. . . . 

Complex  human  terrain  exists  where  numerous  population  groups  coexist  in  the  same 
physical  space — often  a  city  or  an  urbanized  area.  These  might  include  ethno -linguistic 
groups,  political  factions,  tribes  or  clans,  religious  sects,  or  ideological  movements. 
Identification  of  combatants  in  complex  human  terrain  is  extraordinarily  difficult; 
applying  force  in  such  an  environment  imposes  a  high  risk  of  counterproductive  or 
unintended  consequences. 

Finally,  complex  informational  terrain  is  the  multiple  sources  or  transmission  paths  for 
communications,  data,  or  information — including  news  media.  A  force  operating  in 
complex  informational  terrain  will  not  have  the  ability  to  control  information  flow. 

U.S.  Army  Training  and  Doctrine  Command,  TRADOC  Pam.  525-3-0,  The  Army  in  Joint 
Operations:  The  Army's  Future  Force  Capstone  Concept  2015-2024,  at  44  (2005). 


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Targeting  and  International  Humanitarian  Law  in  Afghanistan 

9.  For  a  general  description  of  Afghanistan,  see  Central  Intelligence  Agency,  The  World 
Factbook,  Afghanistan  (2008),  https://www.cia.gov/library/publications/the-world-factbook/ 
geos/af.html  (last  visited  Mar.  11,  2009). 

10.  This  approach  reversed  the  standard  tactic  of  ground  forces  driving  the  enemy  into  areas 
where  it  can  be  attacked  by  airpower.  In  Afghanistan,  air  attacks  often  did  the  opposite,  with  air 
forces  driving  the  enemy  into  areas  where  it  could  be  engaged  by  ground  forces. 

1 1 .  "An  organized  movement  aimed  at  the  overthrow  of  a  constituted  government  through 
use  of  subversion  and  armed  conflict."  Chairman  of  the  Joint  Chiefs  of  Staff,  Joint  Publication  1- 
02,  Dictionary  of  Military  and  Associated  Terms  (Apr.  12,  2001,  as  amended  through  Oct.  17, 
2008),  http://www.dtic.mil/doctrine/jel/doddict/  [hereinafter  DoD  Dictionary].  Security  Coun- 
cil resolutions  setting  forth  mandates  on  Afghanistan  illustrate  the  counterinsurgency  nature  of 
operations.  See,  e.g.,  S.C.  Res.  1386,  U.N.  Doc.  S/RES/1386  (Dec.  20,  2001);  S.C.  Res.  1413,  U.N. 
Doc.  S/RES/1413  (May  20,  2002);  S.C.  Res.  1444,  U.N.  Doc.  S/RES/1444  (Nov.  20,  2002);  S.C. 
Res.  1510,  U.N.  Doc.  S/RES/1510  (Oct.  13,  2003);  S.C.  Res.  1563,  U.N.  Doc.  S/RES/1563  (Sept. 
17,  2004);  S.C.  Res.  1623,  U.N.  Doc.  S/RES/1623  (Sept.  13,  2005);  S.C.  Res.  1659,  U.N.  Doc.  S/ 
RES/1659  (Feb.  15, 2006);  S.C.  Res.  1707,  U.N.  Doc.  S/RES/1707  (Sept.  12, 2006);  S.C.  Res.  1746, 
U.N.  Doc.  S/RES/1746  (Mar.  23,  2007);  S.C.  Res.  1776,  U.N.  Doc.  S/RES/1776  (Sept.  19,  2007); 
S.C.  Res.  1817,  U.N.  Doc.  S/RES/1817  (June  11,  2008);  S.C.  Res.  1833,  U.N.  Doc.  S/RES/1833 
(Sept.  22,  2008). 

12.  US  Marine  Corps  &  US  Special  Operations  Command,  Multi-Service  Concept  for  Irreg- 
ular Warfare  Version  2.0,  USMC  Combat  Development  Command  and  US  Special  Operations 
Command  Center  for  Knowledge  and  Futures,  at  5-6  (2006),  available  at  http://www.dtic.mil/ 
cgi-bin/GetTRDoc?AD=ADA454228&Location=U2&doc=GetTRDoc.pdf. 

13.  Headquarters,  Department  of  the  Army  &  Headquarters,  Marine  Corps  Combat 
Development  Command,  FM  3-24/MCWP  3-33.5,  Counterinsurgency,  at  1-141-1-142  (2006), 
available  at  http://www.usgcoin.org/library/doctrine/COIN-FM3-24.pdf  [hereinafter  COIN 
Manual].  The  manual  was  drafted  in  part  by  General  David  Petraeus,  who  presently  commands 
US  Central  Command  (CENTCOM).  The  command  exercises  responsibility  over  the  conflicts 
in  both  Iraq  and  Afghanistan. 

14.  Id.  at  1-150. 

15.  Chairman  of  the  Joint  Chiefs  of  Staff,  Joint  Publication  3-0,  Joint  Operations,  at  II- 1 
(2006,  incorporating  change  1  (Feb.  13,  2008)),  available  at  http://www.dtic.mil/doctrine/jel/ 
new_pubs/jp3_0.pdf. 

16.  Headquarters,  Air  Force  Doctrine  Center,  AFDD  2-1.9,  Targeting,  at  35  (2006),  available 
at  http://www.dtic.mil/doctrine/jel/service_pubs/afdd2_l_9.pdffhereinafterAFDD  2-1.9]. The 
target  validation  phase  ensures  vetted  targets 

achieve  the  effects  and  objectives  outlined  in  a  commander's  guidance  and  are 
coordinated  and  deconflicted  with  agencies  and  activities  that  might  present  a  conflict 
with  the  proposed  action.  It  also  determines  whether  a  target  remains  a  viable  element 
of  the  target  system.  During  the  development  effort,  the  targets  may  also  require  review 
and  approval  based  on  the  sensitive  target  approval  and  review  process,  coordinated 
through  the  combatant  commander  to  national  authorities. 

Id.  at  34. 

17.  The  CDEM  methodology  is  set  forth  in  Chairman  of  the  Joint  Chiefs  of  Staff,  CJCSM 
3 160.0 IB,  Joint  Methodology  for  Estimating  Collateral  Damage  and  Casualties  for  Conven- 
tional Weapons:  Precision,  Unguided  and  Cluster  (Aug.  31, 2007).  The  document  is  "For  Offi- 
cial Use  Only"  and  unavailable  to  the  public.  For  open-source  discussions  of  the  topic,  see 
Colin  H.  Kahn,  Boots  on  the  Ground  or  Bolts  from  the  Blue?  Risks  to  Civilians  from  U.S. 

332 


Michael  N.  Schmitt 


Counterinsurgency  Operations  in  Iraq  and  Afghanistan  3-4  (unpublished  memo  prepared  for 
the  Cornell  University  "Human  Rights  at  War"  Workshop,  Nov.  9-10,  2007);  DWIGHT  A. 
Roblyer,  Beyond  Precision:  Issues  of  Morality  and  Decision  Making  in  Minimizing 
Collateral  Casualties,  Paper  for  the  Program  in  Arms  Control,  Disarmament,  and 
INTERNATIONAL  SECURITY  18  (2003),  available  at  http://acdis.illinois.edu/assets/docs/246/ 
BeyondPrecisionIssuesofMoralityandDecisionMakinginMinimizingCollateralCasualties.pdf. 

18.  1  Center  for  Law  and  Military  Operations,  Judge  Advocate  General's  Legal  Center  and 
School,  Lessons  Learned  from  Afghanistan  and  Iraq,  Major  Combat  Operations  ( 1 1  September 
2001-1  May  2003),  at  84  (2004)  [hereinafter  1  Lessons  Learned]. 

19.  The  CENTCOM  CDEM  for  both  Operation  Enduring  Freedom  and  Operation  Iraqi  Free- 
dom is  illustrative.  It  sets  forth  a  series  of  questions  to  be  addressed  during  the  CDEM  process: 

1 .  Can  I  positively  identify  the  object  or  person  I  want  to  attack  as  a  legitimate  military 
target  authorized  for  attack  by  the  current  rules  of  engagement? 

2.  Is  there  a  protected  facility  (i.e.  No  Strike),  civilian  object  or  people,  or  significant 
environmental  concern  within  the  effects  range  of  the  weapon  I  would  like  to  use  to 
attack  the  target? 

3.  Can  I  avoid  damage  to  that  concern  by  attacking  the  target  with  a  different  weapon 
or  with  a  different  method  of  approach? 

4.  If  not,  how  many  people  do  I  think  will  be  injured/killed  by  my  attack? 

5.  Do  I  need  to  call  my  higher  commander  for  permission  to  attack  this  target? 

Id.  at  103,  citing  US  Central  Command,  Collateral  Damage  Estimation  Policy  and  Methodology 
para.  2  (2003). 

20.  However,  the  law  of  targeting  contains  many  unresolved  issues.  On  some  of  them,  see 
Michael  N.  Schmitt,  Targeting,  in  PERSPECTIVES  ON  THE  ICRC  STUDY  ON  CUSTOMARY  INTER- 
NATIONAL HUMANITARIAN  LAW  131  (Susan  Breau  &  Elizabeth  Wilmshurst  eds.,  2007);  Michael 
N.  Schmitt,  Fault  Lines  in  the  Law  of  Attack,  in  TESTING  THE  BOUNDARIES  OF  INTERNATIONAL 
HUMANITARIAN  LAW  277  (Susan  Breau  &  Agnieszka  Jachec-Neale  eds.,  2006). 

21.  AP  I,  supra  note  1,  art.  51;  CIHLS,  supra  note  7,  ch.  1;  US  Navy,  Marine  Corps  &  Coast 
Guard,  The  Commander's  Handbook  on  the  Law  of  Naval  Operations,  NWP  1-14M/MCWP  5- 
1 2. 1/COMDTPUB  P5800.7A  paras.  8.2.1,8.2.2  (2007)  [hereinafter  NWP  1  -  14M] ;  UK  MINISTRY 
OF  DEFENCE,  THE  MANUAL  OF  THE  LAW  OF  ARMED  CONFLICT  para.  5.32  (2004)  [hereinafter 
British  Manual] ;  NIAC  Manual,  supra  note  5,  Rules  2. 1 . 1 ,  2. 1 . 1 . 1  &  2. 1 . 1 .2. 

22.  AP  I,  supra  note  1,  art.  52.2.  "Nature"  denotes  intrinsic  military  significance,  thereby  in- 
cluding objects  like  ammunition  depots,  tanks,  combat  aircraft,  headquarters  or  military  bar- 
racks. "Location"  refers  to  areas  that  have  "special  importance  to  military  operations."  The 
classic  example  is  a  mountain  pass  that  can  be  blocked  to  foil  the  enemy's  advance.  When  reliable 
intelligence  or  other  information  indicates  that  the  enemy  intends  to  use  an  object  militarily  in 
the  future,  the  object  qualifies  as  a  military  objective  through  "purpose."  Finally,  "use"  means 
that  the  enemy  is  presently  utilizing  an  object  militarily.  AP  I  Commentary,  supra  note  7,  paras. 
2020-24.  See  also  British  Manual,  supra  note  21,  para.  4.4. 

23.  AP  I,  supra  note  1 ,  art.  51.3:  "Civilians  shall  enjoy  the  protection  afforded  by  this  Section, 
unless  and  for  such  time  as  they  take  a  direct  part  in  hostilities."  See  also  CIHLS,  supra  note  7,  at 
19  (Rule  6);  NWP  1-14M,  supra  note  21,  para.  8.2.2;  British  Manual,  supra  note  21,  para.  5.3.2. 

24.  AP  I,  supra  note  1,  arts.  51.4(a)  &  51.5(a).  See  also  CIHLS,  supra  note  7,  at  37  (Rule  11), 
40  (Rule  12),  43  (Rule  13);  British  Manual,  supra  note  21,  para.  5.24. 

25.  CIHLS,  supra  note  7,  at  244  (Rule  71).  See  also  AP  I,  supra  note  1,  arts.  51.4(b)  &  (c); 
NWP  1-14M,  supra  note  21,  para.  9.1.2;  British  Manual,  supra  note  21,  para.  6.4. 


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Targeting  and  International  Humanitarian  Law  in  Afghanistan 

26.  CIHLS,  supra  note  7,  at  237  (Rule  70).  See  also  AP  I,  supra  note  1,  art.  35.2;  NWP  1-14M, 
supra  note  21,  para.  9.1.1;  British  Manual,  supra  note  21,  para.  6.2. 

27.  Convention  on  Cluster  Munitions,  May  30,  2008,  available  at  http://www.icrc.org/ihl 
.nsf/FULL/620?OpenDocument. 

28.  NWP  1-14M,  supra  note  21,  para.  8.3.1.  The  requirement  is  codified  in  AP  I,  supra  note 
1,  art.  57.  See  also  CIHLS,  supra  note  7,  ch.  5;  British  Manual,  supra  note  21,  para.  5.32. 

29.  AP  I,  supra  note  1,  arts.  51.5(b)  &  57.2(b);  CIHLS,  supra  note  7,  ch.  4;  NWP  1-14M,  supra 
note  21,  para.  8.3.1;  British  Manual,  supra  note  21,  paras.  2.6-2.8. 

30.  The  commentary  to  Article  51  suggests  that  damage  which  is  "extensive"  is  not  propor- 
tionate. AP  I  Commentary,  supra  note  7,  para.  1980.  See  discussion  in  DlNSTEIN,  supra  note  4,  at 
120-21. 

31.  For  a  discussion  of  the  incidents,  see  Sean  D.  Murphy,  Contemporary  Practice  of  the 
United  States  Relating  to  International  Law,  96  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 
237,  247  (2002). 

32.  Human  Rights  Watch,  Troops  in  Contact  22  (2008)  [hereinafter  Troops  in 
CONTACT],  citing  e-mail  communication  from  NATO  Media  Operations  Center  to  Human 
Rights  Watch  (May  6,  2008). 

33.  Id.  at  14. 

34.  Karzai  Denounces  Reported  Civilian  Deaths  from  U.S.,  NATO  Raids,  Online  NewsHour 
(May  2,  2007),  http://www.pbs.org/newshour/updates/asia/jan-june07/afghanistan_05-02.html. 

35.  Headquarters  United  States  Air  Force,  Operation  Anaconda:  An  Airpower  Perspective 
42-43  (2005),  available  at  http://www.af.mil/shared/media/document/AFD-060726-037.pdf. 

36.  "Directives  issued  by  competent  military  authority  that  delineate  the  circumstances  and 
limitations  under  which  United  States  forces  will  initiate  and/or  continue  combat  engagement 
with  other  forces  encountered."  DoD  Dictionary,  supra  note  11. 

37.  "A  folder,  hardcopy  or  electronic,  containing  target  intelligence  and  related  materials 
prepared  for  planning  and  executing  action  against  a  specific  target."  Id. 

38.  "A  plan  for  a  connected  series  of  joint  air  operations  to  achieve  the  joint  force  com- 
mander's objectives  within  a  given  time  and  joint  operational  area."  Id. 

39.  "An  order  to  initiate  military  operations  as  directed."  Id. 

40.  "An  abbreviated  form  of  an  operation  order  issued  as  needed  after  an  operation  order  to 
change  or  modify  that  order  or  to  execute  a  branch  or  sequel  to  that  order."  Id. 

41.  "A  measure  employed  by  land  or  amphibious  commanders  to  facilitate  the  rapid  engage- 
ment of  targets  and  simultaneously  provide  safeguards  for  friendly  forces."  Id. 

42.  A  card  distributed  to  soldiers  bearing  simple  rules  regarding  the  use  of  force  and  other 
matters. 

43.  1  Lessons  Learned,  supra  note  18,  at  86-88.  See  generally  AFDD  2-1.9,  supra  note  16,  at 
94-95. 

44.  AP  I,  supra  note  1,  art.  51.3;  CIHLS,  supra  note  7,  at  19  (Rule  6);  NWP  1-14M,  supra  note 
2 1 ,  para.  8.2.2;  British  Manual,  supra  note  21,  para.  5.3.2.  See  also  the  reports  of  meetings  of  a  group 
of  international  experts  advising  the  ICRC  on  interpretive  guidance  regarding  the  notion  of  direct 
participation,  available  at  http://www.cicr.org/Web/Eng/siteengO.nsf/htmlall/participation 
-hostilities-ihl-31 1205.  The  guidance  will  be  issued  in  2009. 

45.  The  United  Nations  Office  of  the  High  Commissioner  for  Human  Rights  issued  what  is 
effectively  a  model  standard  in  1990.  The  Basic  Principles  on  the  Use  of  Force  and  Firearms  by 
Law  Enforcement  Officials  provides  that 

[l]aw  enforcement  officials  shall  not  use  firearms  against  persons  except  in  self-defense 
or  defense  of  others  against  the  imminent  threat  of  death  or  serious  injury,  to  prevent 

334 


Michael  N.  Schmitt 


the  perpetration  of  a  particularly  serious  crime  involving  grave  threat  to  life,  to  arrest  a 
person  presenting  such  a  danger  and  resisting  their  authority,  or  to  prevent  his  or  her 
escape,  and  only  when  less  extreme  means  are  insufficient  to  achieve  these  objectives.  In 
any  event,  intentional  lethal  use  of  firearms  may  only  be  made  when  strictly 
unavoidable  in  order  to  protect  life. 

U.N.  Doc.  A/CONF.144/28/Rev.l,  prov.  9  (1990),  available  at  http://www.unhchr.ch/html/menu3/ 
b/h_comp43.htm.  On  this  and  other  use-of-force  standards,  see  Michael  N.  Schmitt,  Targeted 
Killings  in  International  Law:  Law  Enforcement,  Self-Defense  and  Armed  Conflict,  in 
International  Humanitarian  Law  and  Human  Rights  Law:  Towards  a  New  Merger 
IN  INTERNATIONAL  LAW  525  (Roberta  Arnold  &  Noelle  Quenivert  eds.,  2008). 

46.  Chairman  of  the  Joint  Chiefs  of  Staff,  CJCSI  3121.01B,  Standing  Rules  of  Engagement  for 
US  Forces,  encl.  A,  paras.  2a  &  3a  (2005).  A  hostile  act  is  "an  attack  or  other  use  of  force  against 
the  United  States,  US  forces  or  other  designated  persons  or  property."  Hostile  intent  is  "the 
threat  of  imminent  use  of  force"  against  the  same  entities.  Id.,  paras.  3e  &  f. 

47.  Various  interviews  with  US  military  personnel  with  Operation  Iraqi  Freedom  experience 
(May-Aug.  2008). 

48.  E-mail  to  author  (June  17,  2008)  (on  file  with  author). 

49.  1  Lessons  Learned,  supra  note  18,  at  100-102  and  accompanying  footnotes. 

50.  2  Center  for  Law  and  Military  Operations,  Judge  Advocate  General's  Legal  Center  and 
School,  Lessons  Learned  from  Afghanistan  and  Iraq,  Full  Spectrum  Operations  (2  May  2003- 
30  June  2004),  at  137  (2004)  [hereinafter  2  Lessons  Learned]. 

51.  1  Lessons  Learned,  supra  note  18,  at  96. 

52.  Id.  This  definition  was  the  result  of  a  series  of  meetings  between  operators  and  judge  ad- 
vocates at  the  CENTCOM  level.  The  standard  was  applauded  by  some  judge  advocates,  while 
criticized  by  others.  Id.  at  96  n.59. 

53.  Personal  experience  of  author  while  Staff  Judge  Advocate,  Operation  Northern  Watch, 
1997. 

54.  A  Marine  after-action  report  expressed  the  frustration: 

Upon  26th  [Marine  expeditionary  unit  (special  operations  capable)  ]'s  arrival  in  the  5th 
Fleet  [area  of  responsibility] ,  I  immediately  began  requesting  guidance  and  clarification 
on  the  intent  and  meaning  of  this  new  concept,  "likely  and  identifiable  threat."  My 
concerns  were  primarily  that  "likely  and  identifiable  threat"  was  introducing  an 
unfamiliar  concept  to  our  Marines  immediately  before  the  commencement  of  combat 
operations.  I  had  trained  our  Marines  on  the  concepts  of  hostile  act,  hostile  intent  and 
declared  hostile,  as  well  as  other  U.S.  Standing  ROE  concepts,  and  was  certain  as  to  their 
ability  to  implement  them  in  any  context;  however,  on  its  face,  "likely  and  identifiable 
threat"  appeared  to  beg  further  elaboration  and  clarification. 

[I] f  judge  advocates  and  commanders  have  relative  difficulty  in  defining  ROE  terms,  it 
goes  without  saying  that  the  Marines  charged  with  implementing  the  ROE  will  likely 
have  similar  difficulties. 

1  Lessons  Learned,  supra  note  18,  at  100  n.77,  citing  Staff  Judge  Advocate,  26th  Marine 
Expeditionary  Unit  (Special  Operations  Capable),  After  Action  Report:  Operation  Enduring 
Freedom/Operation  Swift  Freedom  (Mar.  22,  2002).  Similar  frustrations  were  expressed  by 
others,  including  US  Army  judge  advocates.  Id. 

55.  Id.  at  106  n.91,  citing  Memorandum,  Dean  L.  Whitford,  former  Group  Judge  Advocate, 
5th  Special  Forces  Group  (Airborne),  Staff  Judge  Advocate,  Joint  Special  Operations  Task  Force- 


335 


Targeting  and  International  Humanitarian  Law  in  Afghanistan 

North  (Task  Force  Dagger)  (OEF),  and  Staffjudge  Advocate,  Combined  Joint  Special  Operations 
Task  Force-West  and  successor  CJSOTF-Arabian  Peninsula  (OIF),  for  Major  Daniel  P.  Saumur, 
Deputy  Director,  CLAMO,  subject:  Task  Force  Dagger  OEF/OIF  ROE  AAR  (June  14,  2004). 

56.  Id.  at  100,  citing  Major  Thomas  A.  Wagoner,  Staffjudge  Advocate,  15th  Marine  Expedi- 
tionary Unit  (Special  Operations  Capable),  After  Action  Report  of  the  15th  MEU(SOC)  West 
PacOl  (2002). 

57.  This  discussion  is  based  on  the  experience  of  the  author  as  a  member  of  the  group  of  ex- 
perts participating  in  the  ICRC  effort  to  produce  Interpretive  Guidance  on  the  Notion  of  Direct 
Participation.  The  ICRC  Interpretive  Guidance  is  expected  to  be  released  in  March  2009. 

58.  Some  controversy  exists  over  whether  the  standard  applies  equally  in  non-international 
armed  conflict.  The  author  believes  it  should.  Others  would  add  a  requirement  that  the  individ- 
ual be  performing  a  "combat  function." 

59.  AP  I,  Commentary,  supra  note  7,  para.  1944. 

60.  See,  e.g. ,  Michael  N.  Schmitt,  Humanitarian  Law  and  Direct  Participation  in  Hostilities  by 
Private  Contractors  or  Civilian  Employees,  5  CHICAGO  JOURNAL  OF  INTERNATIONAL  LAW  511, 
535-36  (2005).  The  Israeli  Supreme  Court  addressed  the  issue  in  Public  Committee  Against  Tor- 
ture in  Israel  et  al.  v.  Government  of  Israel  et  al.,  HCJ  769/02,  Judgment,  para.  30  (Dec.  13, 2006), 
reprinted  in  46  INTERNATIONAL  LEGAL  MATERIALS  (2007),  available  at  http://elyonl.court.gov.il/ 
files_eng/02/690/007/a34/02007690.a34.pdf.  It  rejected  an  argument  that  the  "for  such  time" 
criterion  was  not  customary  law,  but  then  proceeded  to  interpret  it  liberally. 

61.  The  Vienna  Convention  provides  that  "[a]  treaty  shall  be  interpreted  in  good  faith  in  ac- 
cordance with  the  ordinary  meaning  to  be  given  to  the  terms  of  the  treaty  in  their  context  and  in 
the  light  of  its  object  and  purpose."  Vienna  Convention  on  the  Law  of  Treaties  art.  31.1,  opened 
for  signature  May  23,  1969,  1155  U.N.T.S.  331.  On  the  balance  between  military  necessity  and 
humanitarian  concerns,  see  note  97  infra  and  accompanying  text. 

62.  For  criticism,  see  Schmitt,  supra  note  60,  at  535-36.  Lest  the  impact  of  the  differing  inter- 
pretations of  direct  participation  on  assessments  of  the  appropriateness  of  LIT  cause  excess  con- 
cern, it  is  important  to  emphasize  that  under  both  approaches  (and  LIT)  an  individual  seeking 
temporary  sanctuary  in  an  inhabited  area  during  an  operation  still  qualifies  as  an  attackable  di- 
rect participant  if  the  mission  in  question  is  ongoing. 

63.  Any  concern  that  it  is  overly  liberal  would  have  to  be  tempered  by  the  fact  that  the  deci- 
sion not  to  declare  forces  hostile  already  meant  that  operations  in  Afghanistan  commenced  with 
a  higher  standard  than  that  required  in  IHL. 

64.  NWP  1-14M,  supra  note  21,  para.  8.2.2.  Note  that  the  United  States  does  not  see  the 
same  rule  regarding  objects  as  customary  in  nature,  for  it  risks  shifting  the  burden  as  to  de- 
termining the  precise  use  of  an  object  to  the  attacker  from  the  person  controlling  the  object.  See 
US  DEPARTMENT  OF  DEFENSE,  FINAL  REPORT  TO  CONGRESS:  CONDUCT  OF  THE  PERSIAN  GULF 
WAR  616  (1992). 

65.  API, supra  note  1,  art.  50.1. 

66.  AP  I  Commentary,  supra  note  7,  para.  1921. 

67.  Statement  made  by  the  United  Kingdom  at  time  of  ratification,  reprinted  in  DOCUMENTS 
ON  THE  LAWS  OF  WAR,  supra  note  1,  at  510-1 1. 

68.  CIHLS,  supra  note  7,  at  24. 

69.  Author  interview  with  judge  advocate  responsible  for  providing  legal  advice  in  such  situ- 
ations (May  2008). 

70.  Operation  Anaconda,  supra  note  35,  at  40. 

7 1 .  Anaconda  was  the  first  operation  to  involve  significant  US  conventional  ground  forces. 

72.  AP  I,  supra  note  1,  art.  57. 


336 


Michael  N.  Schmitt 


73.  COIN  Manual,  supra  note  13,  para.  7-32. 

74.  TROOPS  IN  CONTACT,  supra  note  32,  at  25-28. 

75.  AP  I,  supra  note  1,  art.  51.7;  CIHLS,  supra  note  7,  at  337  (Rule  97);  NWP  1-14M,  supra 
note  21,  para.  8.3.2;  British  Manual,  supra  note  21,  para.  15.14.2;  NIAC  Manual,  supra  note  5, 
para.  2.3.8. 

76.  But  see  DlNSTEIN,  supra  note  4,  at  1 3 1 ,  arguing  that  "the  test  of  excessive  injury  must  be 
relaxed." 

77.  AP  I,  supra  note  1 ,  art.  5 1 .8.  On  human  shields,  see  generally  Michael  N.  Schmitt,  Human 
Shields  and  International  Humanitarian  Law,  38  ISRAEL  YEARBOOK  ON  HUMAN  RIGHTS  17 
(2008). 

78.  But  all  sides  of  the  debate  agree  it  is  a  factor  in  determining  whether  precautions  are 
feasible. 

79.  In  terms  of  the  quantum  of  advantage,  the  ICRC  Commentary  notes  that  "it  is  not  legiti- 
mate to  launch  an  attack  which  only  offers  potential  or  indeterminate  advantages."  AP  I  Com- 
mentary, supra  note  7,  para.  2024. 

80.  See  DlNSTEIN,  supra  note  4,  at  85-86;  Schmitt,  Fault  Lines,  supra  note  20,  at  295. 

8 1 .  The  small-diameter  bomb  is  a  guided  munition  that  relies  on  the  Global  Positioning  Sys- 
tem of  satellites  to  provide  navigation  to  target.  Because  it  is  accurate,  it  does  not  need  the  explo- 
sive force  that  would  otherwise  be  required  to  ensure  destruction  of  the  target.  Its  small  size 
(currently  in  the  250  lb.  class)  reduces  the  likelihood  of  collateral  damage.  Factsheet,  GBU-39B 
Small  Diameter  Bomb,  Air  Force  Link,  http://www.af.mil/factsheets/factsheet.asp?id=4500 
(last  visited  Mar.  11,  2009).  An  upgrade  replaces  the  steel  casing  with  a  composite  casing  to 
reduce  the  fragmentation  effects  of  the  weapon.  Small  Diameter  Bomb/Small  Smart  Bomb, 
GlobalSecurity.org,  http://www.globalsecurity.org/military/systems/munitions/sdb.htm  (last  vis- 
ited Mar.  11,2009). 

82.  See,  e.g.,  HUMAN  RIGHTS  WATCH,  OFF  TARGET:  THE  CONDUCT  OF  THE  WAR  AND  CI- 
VILIAN CASUALTIES  IN  IRAQ  2 1-22, 40  (2003).  For  a  discussion  of  the  report's  conclusion  on  pre- 
cautions in  attack,  see  Michael  N.  Schmitt,  The  Conduct  of  Hostilities  During  Operation  Iraqi 
Freedom,  6  YEARBOOK  OF  INTERNATIONAL  HUMANITARIAN  LAW  90-92  (2003). 

83.  Troops  in  Contact,  supra  note  32,  at  4. 

84.  Id.  at  29.  Doctrine  distinguishes  among  three  types  of  targeting.  Deliberate  targeting  is 
that  which  is  preplanned  (scheduled).  Dynamic  targeting  occurs  when  a  target  was  not  antici- 
pated or  when,  although  anticipated,  it  was  not  identified  in  sufficient  time  to  perform  deliberate 
mission  planning.  Time-sensitive  targeting  occurs  when  there  is  a  need  for  an  immediate  re- 
sponse because  of  a  threat  to  friendly  forces  or  in  cases  involving  important  lucrative  fleeting  tar- 
gets. AJP-3.9,  Allied  Joint  Doctrine  for  Targeting  (2008). 

85.  Troops  in  Contact,  supra  note  32,  at  29. 

86.  Id.  at  30. 

87.  Id. 

88.  Id.  A  life-pattern  analysis  looks  at  the  pattern  of  civilian  activity  in  the  target  area  in  an  ef- 
fort, for  instance,  to  determine  the  times  at  which  a  strike  will  risk  the  least  incidental  injuries  to 
civilians. 

89.  For  a  discussion  of  the  organization's  earlier  report  on  Iraq,  see  Schmitt,  supra  note  82. 

90.  Protocol  on  Prohibitions  or  Restrictions  on  Use  of  Mines,  Booby  Traps  and  Other  Devices 
art.  3(1),  Oct.  10,  1980,  as  amended  May  3,  1996,  2048  U.N.T.S.  133,  reprinted  in  DOCUMENTS 
ON  THE  LAWS  OF  WAR,  supra  note  1,  at  536. 

9 1 .  Mission  accomplishment  rules  of  engagement  are  guidelines  for  performing  an  assigned 
mission,  as  distinct  from  those  relating  to  defense  of  oneself  and  the  force.  For  instance,  mission 


337 


Targeting  and  International  Humanitarian  Law  in  Afghanistan 

accomplishment  rules  of  engagement  would  establish  guidelines  for  the  conduct  of  a  preplanned 
attack. 

92.  See  definitions  at  note  46  supra. 

93.  2  Lessons  Learned,  supra  note  50,  at  13 1,  citing,  for  Operation  Enduring  Freedom,  CJCS 
Message  (S)  212315Z  NOV  01,  para.  3.H,  and,  for  Operation  Iraqi  Freedom,  USCENTCOM 
Message  (S/REL  AUS/GBR/USA)  121917Z  MAR  03,  para.  3.J. 

94.  Troops  in  Contact,  supra  note  32,  at  31. 

95.  Id. 

96.  Id.  at  32,  citing  Human  Rights  Watch  interview  with  an  ambassador  (name  withheld)  in 
Kabul  (July  22,  2007). 

97.  St.  Petersburg  Declaration  Renouncing  the  Use,  in  Time  of  War,  of  Explosive  Projectiles 
Under  400  Grammes  Weight,  Nov.  29,  1868, 138  Consol.  T.S.  297,  reprinted  in  DOCUMENTS  ON 
THE  LAWS  OF  WAR,  supra  note  1,  at  54. 

98.  On  coercive  strategies,  also  labeled  compellance  strategies,  see  Michael  N.  Schmitt,  Tar- 
geting and  Humanitarian  Law:  Current  Issues,  34  ISRAEL  YEARBOOK  ON  HUMAN  RIGHTS  59,  60- 
69  (2004). 

99.  See,  e.g.,  Charles  J.  Dunlap  Jr.,  The  End  of  Innocence:  Rethinking  Noncombatancy  in  the 
Post-Kosovo  Era,  STRATEGIC  REVIEW,  Summer  2000,  at  14. 

100.  CIHLS,  supra  note  7,  at  xxxii.  This  approach  has  been  criticized  as  overbroad  by  the 
United  States.  Letter  from  John  B.  Bellinger  III,  Legal  Adviser,  US  Department  of  State,  and  Wil- 
liam J.  Haynes,  General  Counsel,  US  Department  of  Defense,  to  Dr.  Jacob  Kellenberger,  Presi- 
dent, International  Committee  of  the  Red  Cross  (Nov.  3,  2006),  46  INTERNATIONAL  LEGAL 
MATERIALS  514  (2007). 

101.  Article  38  of  the  Statute  of  the  International  Court  of  Justice  is  universally  accepted  as  a 
restatement  of  the  sources  of  international  law.  Paragraph  1(b)  includes  "international  custom, 
as  evidence  of  a  general  practice  accepted  as  law"  in  such  sources.  Statute  of  the  International 
Court  of  Justice  art.  38(  1),  June  26, 1945,  59  Stat.  1055,  33  U.N.T.S.  993.  According  to  the  Inter- 
national Court  of  Justice, 

[n]ot  only  must  the  acts  concerned  amount  to  a  settled  practice,  but  they  must  also  be 
such,  or  be  carried  out  in  such  a  way,  as  to  be  evidence  of  a  belief  that  this  practice  is 
rendered  obligatory  by  the  existence  of  a  rule  of  law  requiring  it.  The  need  for  such  a 
belief,  i.e.,  the  existence  of  a  subjective  element,  is  implicit  in  the  very  notion  of  the 
opinio  iuris  sive  necessitatis.  The  States  concerned  must  therefore  feel  that  they  are 
conforming  to  what  amounts  to  a  legal  obligation. 

North  Sea  Continental  Shelf  (F.R.G.  v.  Den.;  F.R.G.  v.  Neth.),  1969  I.C.J.  3, 44  (Feb.  20).  See  also 
Continental  Shelf  (Libya  v.  Tunis.),  1985  I.C.J.  13,  36  (June  3).  For  an  excellent  summary  of  the 
nature  and  sources  of  customary  international  humanitarian  law,  see  Jean-Marie  Henckaerts, 
Study  on  Customary  International  Humanitarian  Law:  A  Contribution  to  the  Understanding  and 
Respect  for  the  Rule  of  Law  in  Armed  Conflict,  87  INTERNATIONAL  REVIEW  OF  THE  RED  CROSS  1 75 
(2005).  On  customary  international  law  generally,  see  Yoram  Dinstein,  The  Interplay  between 
Customary  International  Law  and  Treaties,  ^ll  RECUEIL  DES  COURS  246  (2006). 

102.  On  the  law  relevant  to  precision  attacks,  see  Michael  N.  Schmitt,  Precision  Attack  and  In- 
ternational Humanitarian  Law,  87  INTERNATIONAL  REVIEW  OF  THE  RED  CROSS  445  (2005). 

103.  On  lawfare,  see  Charles  Dunlap  Jr.,  Law  and  Military  Interventions:  Preserving  Military 
Values  in  21st  Century  Conflicts  (Working  Paper,  Harvard  Kennedy  School,  Carr  Center  for 
Human  Rights  Policy,  2001),  available  at  http://www.hks.harvard.edu/cchrp/programareas/ 
nshr_publications.php  (follow  "Working  Papers  Volume  1  Part  1"  hyperlink).  In  Iraq,  for  in- 
stance, insurgents  quickly  learned  that  coalition  forces  employ  counter-battery  fire  against  mortar 

338 


Michael  N.  Schmitt 


attacks.  They,  thus,  adopted  a  "shoot  and  scoot"  tactic  in  which  they  fired  from  an  area  contain- 
ing civilians  (often  with  little  likelihood  of  hitting  coalition  forces),  hoping  the  coalition  re- 
sponse would  cause  civilian  deaths  and  injuries  that  would  generate  negative  public  and 
international  reaction.  Author  interviews  with  senior  US  Marine  Corps  and  Army  officers  (June 
2008).  Hezbollah  employed  the  same  tactics  in  Lebanon  in  2006,  firing  Katyusha  rockets  from 
populated  areas  in  the  hope  of  baiting  the  Israelis  into  a  response.  See  Israel  Ministry  of  Foreign 
Affairs,  Hizbullah's  Exploitation  of  Lebanese  Population  Centers  and  Civilians:  Photographic 
Evidence  (2006),  http://www.mfa.gov.il/MFA/MFAArchive/2000_2009/2006/Operation+Change 
+of+Direction+Video+Clips.htm. 


339 


PART  IV 


DETENTION  OPERATIONS 


XII 


The  Law  of  Armed  Conflict  and  Detention 
Operations  in  Afghanistan 

Matthew  C.  Waxman* 


In  reflecting  on  the  arc  of  US  and  coalition  detention  operations  in  Afghanistan, 
three  key  issues  related  to  the  law  of  armed  conflict  stand  out:  one  substantive, 
one  procedural  and  one  policy.  The  substantive  matter — what  are  the  minimum 
baseline  treatment  standards  required  as  a  matter  of  international  law? — has  clari- 
fied significantly  during  the  course  of  operations  there,  largely  as  a  result  of  the  US 
Supreme  Court's  holding  in  Hamdan  v.  Rumsfeld}  The  procedural  matter — what 
adjudicative  processes  does  international  law  require  for  determining  who  maybe 
detained? — eludes  consensus  and  has  become  more  controversial  the  longer  the 
Afghan  conflict  has  continued.  And  the  policy  matter — in  waging  counterinsur- 
gency  warfare,  how  do  foreign  military  forces  transition  military  detention  opera- 
tions to  effective  civilian  institutions? — has  emerged  as  a  critical  strategic  priority 
for  which  the  law  of  armed  conflict  provides  little  instructive  guidance. 

President  Barack  Obama's  determination  to  close  Guantanamo  while  expand- 
ing US  military  commitments  in  Afghanistan  will  draw  new  public  attention  to 
these  questions.  After  briefly  explaining  the  basis  of  US  and  coalition  detention  op- 
erations, this  article  addresses  each  of  these  issues  in  turn.  Viewing  them  together, 


*  Associate  Professor  of  Law,  Columbia  Law  School;  Adjunct  Senior  Fellow,  Council  on  Foreign 
Relations;  Member,  Hoover  Institution  Task  Force  on  National  Security  and  Law. 


The  Law  of  Armed  Conflict  and  Detention  Operations  in  Afghanistan 

it  concludes  with  some  general  observations  about  the  convergence  of  law  and 
strategy. 

US  and  Coalition  Detention  Operations  in  Operation  Enduring  Freedom 

In  late  2001,  the  United  States  launched  operations  in  Afghanistan,  and  almost  im- 
mediately began  capturing  and  holding  suspected  enemy  fighters.  The  US  legal  au- 
thority for  detention  operations  in  Afghanistan  began  from  the  propositions  that 

[t]he  United  States  and  its  coalition  partners  are  engaged  in  a  war  against  al-Qaida,  the 
Taliban,  and  their  affiliates  and  supporters.  There  is  no  question  that  under  the  law  of 
armed  conflict,  the  United  States  has  the  authority  to  detain  persons  who  have  engaged 
in  unlawful  belligerence  until  the  cessation  of  hostilities.  Like  other  wars,  when  they 
start  we  do  not  know  when  they  will  end.  Still,  we  may  detain  combatants  until  the  end 
of  the  war.2 

Although  many  US  allies  participated  in  military  operations,  US  forces  took  the 
lead  in  conducting  detention  operations  in  Afghanistan,3  eventually  consolidating 
theater  detention  operations  at  Bagram  air  force  base  facilities. 

As  explained  by  a  commander  of  US  detention  forces  in  Operation  Enduring 
Freedom  (OEF),  "[djuring  the  execution  of  this  campaign,  the  U.S.  Armed  Forces 
and  allied  forces  have  captured  or  procured  the  surrender  of  thousands  of  individ- 
uals believed  to  be  members  or  supporters  of  either  al  Qaeda  or  the  Taliban."4 
Detentions  were  intended  to 

[prevent]  them  from  returning  to  the  battlefield  and  engaging  in  further  armed  attacks 
against  innocent  civilians  and  U.S.  and  coalition  forces.  Detention  also  serves  as  a 
deterrent  against  future  attacks  by  denying  the  enemy  the  fighters  needed  to  conduct 
war.  Interrogations  during  detention  enable  the  United  States  to  gather  important 
intelligence  to  prevent  future  attacks.5 

Nearly  eight  years  after  the  initial  invasion,  US  detention  operations  go  on,  and  the  US 
military  is  modernizing  its  facilities  in  the  expectation  of  their  further  continuation.6 
In  some  respects  US  and  coalition  detention  operations  in  Afghanistan  are  a 
valuable  case  study  for  examining  contemporary  application  of  the  law  of  armed 
conflict.  Aside  from  the  thousands  of  individual  detentions,  the  "data"  include 
publicly  released  and  declassified  documents  of  internal  US  government  legal  and 
policy  decision-making,  as  well  as  litigation  that  has  pushed  the  US  government  to 
clarify  its  legal  positions  and  has  produced  judicial  interpretations  of  the  law  of 
armed  conflict. 


344 


Matthew  C.  Waxman 


In  other  respects,  however,  it  is  difficult  to  examine  the  law  of  armed  conflict  in 
the  Afghanistan  setting  because  of  some  peculiar  aspects  of  detention  operations 
there.  First,  most  US  allies  participating  in  coalition  operations  in  Afghanistan 
have  done  so  not  as  part  of  anti-Taliban  and  anti-al  Qaida  combat  operations  (Op- 
eration Enduring  Freedom)  but  as  part  of  the  International  Security  Assistance 
Force  (ISAF).  The  latter,  which  assists  the  Afghan  government  in  maintaining  se- 
curity in  certain  parts  of  the  country,  is  authorized  by  a  series  of  Chapter  VII  UN 
Security  Council  resolutions  that  authorize  participating  contingents  to  "take  all 
necessary  measures  to  fulfil  its  mandate."7  Participating  military  forces  therefore 
derive  authority  to  detain  certain  captured  militants  from  this  UN  Security  Coun- 
cil mandate  independent  of  the  law  of  armed  conflict.  Second,  US  allies  participat- 
ing in  both  OEF  and  ISAF  have  almost  entirely  "opted  out"  of  detention 
operations.  In  2005,  NATO  adopted  guidelines,  which  the  European  partners  fol- 
low, calling  for  transferring  detainees  to  the  Afghan  government  within  ninety- six 
hours  of  capture.8  As  explained  further  below,  this  has  meant  that  US  detentions 
form  the  only  significant  body  of  State  practice  in  Afghanistan  to  measure  against 
or  help  interpret  the  law  of  armed  conflict  related  to  detention. 

Detention  Treatment  Standards 

In  the  early  phases  of  military  operations  in  Afghanistan,  but  especially  after  the 
Abu  Ghraib  crisis  in  Iraq,  followed  by  exposure  of  detainee  abuses  in  Afghanistan 
and  Guantanamo,  the  most  intense  public  controversy  focused  on  the  issue  of 
treatment  standards.  Much  of  this  debate  centered  on  the  appropriate  classifica- 
tion of  captured  Taliban  and  al  Qaida  fighters,  because  most  protagonists  in  this 
debate  believed  that  the  appropriate  treatment  baseline  turned  in  part  on  captured 
individuals'  legal  statuses.9 

Shortly  before  conventional  combat  operations  began,  US  military  command- 
ers in  charge  of  Afghanistan  operations  issued  an  order  instructing  that  the  Geneva 
Conventions  were  to  be  applied  to  all  captured  individuals.  Belligerents  would  be 
screened  according  to  standard  doctrine  to  determine  whether  or  not  they  were  en- 
titled to  prisoner  of  war  status.10  This  was  consistent  with  existing  military  regula- 
tions and  recent  US  military  practice. 

On  February  7,  2002,  however,  the  President  determined  that  Taliban  and  al 
Qaida  detainees  were  "unlawful  combatants,"11  and  therefore  protected  by  neither 
the  custodial  standards  of  the  Third  Geneva  Convention  applicable  to  prisoners  of 
war  nor  Common  Article  3  of  the  Geneva  Conventions.12  Prisoner  of  war 
protections  did  not  cover  al  Qaida  detainees  because  al  Qaida  was  not  a  "High  Con- 
tracting Party"  to  the  Conventions,  and  they  did  not  cover  Taliban  because  those 

345 


The  Law  of  Armed  Conflict  and  Detention  Operations  in  Afghanistan 

forces  failed  the  tests  of  Article  4  of  the  Third  Convention,  which  stipulates  require- 
ments for  legitimate  military  forces.13  Common  Article  3  did  not  apply,  by  its  own 
terms,  because  this  was  believed  to  be  an  international  armed  conflict,  whereas  Com- 
mon Article  3  rules  apply  in  conflicts  "not  of  an  international  character."14 

The  President  further  directed  in  his  February  2002  instructions,  however,  that 
"[a]s  a  matter  of  policy,  the  United  States  Armed  Forces  shall  continue  to  treat  de- 
tainees humanely  and,  to  the  extent  appropriate  and  consistent  with  military  ne- 
cessity, in  a  manner  consistent  with  the  principles  of  Geneva."15  While  ostensibly 
protective,  this  directive  also  opened  holes  in  the  law  of  armed  conflict's  barriers. 
First,  it  applied  by  its  terms  only  to  armed  forces,  hinting  that  intelligence  services 
might  not  be  similarly  constrained.  Second,  by  emphasizing  humane  treatment  as 
a  matter  of  policy,  it  suggested  that  humane  treatment  was  not  required  as  a  matter 
of  law.  And,  third,  it  suggested  that  the  Geneva  Conventions'  principles  could  val- 
idly be  compromised  in  pursuit  of  security  requirements. 

Well  known  is  the  storm  of  criticism  that  erupted  over  the  initial  US  govern- 
ment position  that  the  Geneva  Conventions — and,  presumably,  customary  law  of 
armed  conflict — provided  no  legal  guarantee  of  minimum  treatment  standards  for 
enemy  combatants  captured  in  OEF.  Many  critics  have  attributed  detainee  abuses 
in  Afghanistan  to  these  foundational  legal  decisions.  Critics  of  the  US  position  con- 
sistently rejected  the  notion  that  unlawful  combatants  fall  into  a  "legal  gap"  in  pro- 
tection. They  asserted  a  range  of  alternatives,  including  that  captured  fighters  (at 
least  Taliban)  were  entitled  to  prisoner  of  war  status;  that  all  captured  fighters  are 
entitled  at  least  to  minimum  protections  of  Common  Article  3,  Article  75  of  the 
first  Additional  Protocol  to  the  Geneva  Conventions,16  and  the  customary  law  of 
armed  conflict;  and/or  that  any  detainees  are  protected  by  international  human 
rights  law,  including  prohibitions  on  "cruel,  inhuman  and  degrading"  treatment.17 

In  June  2006  the  US  Supreme  Court  resolved  much  of  this  debate,  at  least  as  a 
matter  of  international  law  incorporated  into  US  law.  It  held  in  Hamdan  v. 
Rumsfeld,  a  petition  brought  by  a  Yemeni  detained  during  OEF  and  transferred  to 
Guantanamo,  that  Common  Article  3  affords  minimal  protections  to  individuals 
captured  within  the  territory  of  a  signatory  but  engaged  in  a  conflict  not  between 
two  nations.  This  would  include  not  only  civil  wars  (as  Common  Article  3  is  more 
traditionally  understood)  but  also  conflicts  with  transnational  actors  like  al 
Qaida.18  Soon  after,  on  July  7,  2006,  the  Deputy  Secretary  of  Defense  directed  that 
"all  DoD  personnel  adhere  to  [Common  Article  3]  standards"  and  that  each  de- 
partment component  "review  all  relevant  directives,  regulations,  policies,  prac- 
tices, and  procedures  ...  to  ensure  that  they  comply  with  [them]."19 

Hamdan  s  holding  that  Common  Article  3's  minimum  treatment  standards 
apply  to  enemy  combatants  captured  in  Afghanistan  significantly  narrowed  the 

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Matthew  C.  Waxman 


scope  of  controversy  over  international  legal  constraints  on  US  detention  opera- 
tions. Common  Article  3  demands  that  detainees  "in  all  circumstances  be  treated 
humanely,"  and  it  prohibits,  among  other  things,  "cruel  treatment  and  torture"  as 
well  as  "outrages  upon  personal  dignity,  in  particular,  humiliating  and  degrading 
treatment."20  Although  vague,  these  provisions  contain  basic  care  and  custody  re- 
quirements that  match  closely  the  basic  treatment  standards  of  human  rights  law 
that  some  critics  argued  applied.  While  not  matching  the  enhanced  protections  af- 
forded prisoners  of  war,  this  holding  nevertheless  answered  the  criticism  of  those 
critics  who  argued  that  the  Geneva  Conventions  contain  no  "gaps"  in  their  cover- 
age of  individuals  detained  in  armed  conflict.  Perhaps  most  important,  this  hold- 
ing clarified  that  these  minimum  treatment  standards  apply  as  a  matter  of  treaty 
law  of  armed  conflict,  not  merely  policy. 

Detention  Adjudicatory  Process 

The  Hamdan  holding  helped  clarify  the  minimal  treatment  standards  applicable  to 
OEF  detention  operations  in  Afghanistan,  but  the  sparse  terms  of  Common  Article  3 
do  little  to  clarify  the  separate  issue  of  what  minimum  procedural  requirements 
govern  decisions  to  detain  or  continue  to  detain  individuals  in  Afghanistan.21  Proce- 
dural mechanisms  for  reviewing  detention  decisions  in  Afghanistan  have  received 
remarkably  little  public  scrutiny  compared  with  those  at  Guantanamo,  even  though 
in  many  respects — at  least  as  initially  characterized  by  the  US  government — the  de- 
tainees in  both  are  similarly  situated.  Thus  far  the  war  in  Afghanistan  does  more  to 
highlight  the  difficult  issue  of  procedural  safeguards  in  the  law  of  armed  conflict 
than  it  does  to  answer  it. 

In  the  early  phases  of  OEF  operations  in  Afghanistan,  much  of  the  legal  debate 
about  procedural  detention  issues  focused  on  Article  5  of  the  Third  Geneva  Con- 
vention, the  Prisoner  of  War  Convention.  It  provides  that  "[s]hould  any  doubt 
arise  as  to  whether  persons,  having  committed  a  belligerent  act  and  having  fallen 
into  the  hands  of  the  enemy,"  qualify  as  prisoners  of  war,  "such  persons  shall  enjoy 
the  protection  of  the  present  Convention  until  such  time  as  their  status  has  been 
determined  by  a  competent  tribunal."22  Then,  as  now,  however,  little  State  practice 
or  detailed  authoritative  commentary  existed  interpreting  these  terms.  US  military 
regulations  previously  called  for  a  three-officer  panel  that  would  take  testimony 
from  reasonably  available  witnesses,  including  the  detainee,  and  make  judgments.23 
And  US  military  forces  were  preparing  to  conduct  such  tribunals  for  individuals 
captured  in  Afghanistan  until  they  were  directed  otherwise,  eventually  by  the  Presi- 
dent's February  7, 2002  legal  determinations  which  rendered  any  captured  Taliban 


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The  Law  of  Armed  Conflict  and  Detention  Operations  in  Afghanistan 

and  al  Qaida  fighters  "unlawful  combatants"  as  a  matter  of  law;  hence  there  was 
not  "any  doubt"  as  to  their  status  for  Article  5  tribunals  to  adjudicate.24 

Many  critics  contested  this  claim,  arguing  that  Article  5  requires  case-by-case 
determinations;  that  group  designations  of  this  sort  are  impermissible.25  Others 
have  argued  that  this  provision  means  that  when  there  is  doubt  whether  a  captured 
individual  is  even  an  enemy  fighter  or  not,  he  is  entitled  to  a  hearing  before  a  tribu- 
nal; therefore,  the  argument  goes,  suspected  al  Qaida  and  Taliban  combatants  in 
US  custody  should  have  been  entitled  upon  capture  to  such  review.26  Article  5's 
language  begins  with  the  notion  that  a  subject  detainee  has  "committed  a  belliger- 
ent act,"  suggesting  that  the  drafters  intended  to  mandate  minimum  procedures 
for  resolving  factual  doubt  as  to  a  subject's  type  of  combatant  or  belligerent  act,  not 
the  prior  question  whether  he  is  or  is  not  a  combatant.  But  in  practice  any  process 
to  adjudicate  an  individual's  type  of  combatancy,  and  hence  the  Geneva  protec- 
tions to  which  he  is  entitled,  would  likely  uncover  some  cases  of  mistaken  identity 
or  otherwise  erroneous  detentions.27 

Regardless  of  its  precise  meaning,  it  is  quite  clear  that  Article  5  was  drafted  with 
very  different  circumstances  in  mind  from  those  of  the  Afghanistan  conflict.  In 
particular,  it  was  intended  for  a  conflict  pitting  professional  armies  and  of  limited 
duration.28  A  relatively  simple  front-end  adjudicatory  review  was  sufficient  in  such 
conflicts  because  sorting  combatants  from  noncombatants  (for  detention  purposes) 
was  relatively  easy  and  conflicts  would  likely  end  within  a  few  months  or  years, 
whereupon  any  remaining  captives  would  be  released.  Afghanistan,  by  contrast, 
involves  a  set  of  conflicts  already  lasting  almost  eight  years  and  likely  to  continue 
many  more,  and  an  enemy  force  (especially  al  Qaida  forces,  but  also  residual 
Taliban)  that  routinely  obscures  its  identity  among  civilian  populations.29 

In  contexts  such  as  this,  the  more  important  issue  than  appropriate  front-end 
status  screening  is  to  what  form  of  review  (and  perhaps  adversarial  process)  are  de- 
tainees entitled  to  contest  the  factual  basis  of  their  detention,  given  the  relatively 
high  probability  and  cost  of  errors.  Three  main  positions  have  emerged,  though 
there  are  many  sub-positions  within  each. 

The  US  government  has  generally  taken  the  position  that  the  law  of  armed  con- 
flict is  the  exclusive  body  of  international  law  dictating  procedural  constraints  on 
detention  of  captured  fighters  in  Afghanistan.  This  position  assumes  the  continued 
existence  of  armed  conflict  (in  the  US  view,  it  remains  an  international  armed  con- 
flict, though  Hamdan  at  least  adds  new  questions  to  this  view),  and  that  the  law  of 
armed  conflict  operates  as  lex  specialis,  displacing  otherwise  applicable  legal 
norms.30  Beyond  consistently  arguing  against  the  reach  of  judicial  habeas  corpus 
protections  to  Afghanistan,31  however,  the  US  government  has  not  articulated  any 
clear  procedural  mandates  imposed  by  the  law  of  armed  conflict  for  sorting  out 

348 


Matthew  C.  Waxman 


who  is  or  is  not  a  combatant.  Instead  it  has  sought  to  maintain  flexibility,  adopting 
procedural  protections  as  a  matter  of  policy. 

Some  human  rights  organizations  have  argued  that,  especially  since  the  estab- 
lishment of  the  new  Afghan  government  following  the  2002  Loya  Jirga,  interna- 
tional human  rights  law,  not  the  law  of  armed  conflict,  governs  procedural 
protections,  along  with  Afghan  domestic  law.32  This  view  generally  assumes  that 
the  war  in  Afghanistan  evolved  at  that  time  from  an  international  armed  conflict  to 
an  internal  armed  conflict  and  that  the  law  of  armed  conflict  provides  no  inde- 
pendent authorization  for  detention  in  the  latter  category.  Holders  of  this  view 
look  to,  among  other  sources,  the  International  Covenant  on  Civil  and  Political 
Rights,  which  states: 

No  one  shall  be  deprived  of  his  liberty  except  on  such  grounds  and  in  accordance  with 

such  procedure  as  are  established  by  law Anyone  who  is  deprived  of  his  liberty  by 

arrest  or  detention  shall  be  entitled  to  take  proceedings  before  a  court,  in  order  that  that 
court  may  decide  without  delay  on  the  lawfulness  of  his  detention  and  order  his  release 
if  the  detention  is  not  lawful.33 

Under  the  strictest  form  of  this  view,  any  long-term  detention  of  suspected  Taliban 
or  al  Qaida  fighters  in  Afghanistan  requires  criminal  trial  with  universally  recognized 
due  process  safeguards — a  standard  that  leaves  US  practice  in  Afghanistan  falling 
far  short.34 

A  third  view  holds  that  neither  the  law  of  armed  conflict  nor  human  rights  treaty 
law  provides  sufficiently  clear  or  comprehensive  procedural  safeguards  to  persons 
detained  for  security  reasons.  The  International  Committee  of  the  Red  Cross 
(ICRC)  has  developed  a  set  of  principles  and  safeguards  that  it  argues  should  gov- 
ern security  detention  in  all  circumstances,  i.e.,  both  in  armed  conflicts  and  outside 
of  them.  The  guidelines  are  based  on  law  of  armed  conflict  and  human  rights  treaty 
rules,  as  well  as  on  non-binding  standards  and  best  practice,  and  are  to  be  inter- 
preted on  a  case-by-case  basis.  According  to  the  ICRC  guidelines,  detainees  are 
entitled — among  other  things — to  challenge  the  lawfulness  of  their  detention  and 
to  have  an  independent  and  impartial  body  decide  on  continued  detention  or  re- 
lease.35 The  ICRC  considers  that  Afghanistan  is  a  situation  of  non-international 
armed  conflict:  it  would  argue  that  detainees  in  US  or  other  international- force 
hands  should  enjoy  far  more  robust  procedural  rights  than  currently  afforded  and 
that  detainees  in  Afghan  custody  should  be  granted  judicial  review.36 

Experience  in  Afghanistan  offers  intuitive  support  for  the  third  approach,  but 
it  does  little  to  resolve  the  difficult  issue  of  exactly  which  international  human 
rights  law  provisions  should  apply.  The  fact  that  the  nature  of  fighting  there — 


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The  Law  of  Armed  Conflict  and  Detention  Operations  in  Afghanistan 

against  an  enemy  that  deliberately  obscures  its  identity  and  moves  in  and  out  of 
local  communities — creates  a  high  likelihood  of  some  erroneous,  long-term 
detentions  supports  the  call  for  thorough  screening  procedures.37  But  combat 
conditions,  resource  constraints  and  the  weak  state  of  Afghan  justice  would  com- 
plicate efforts  to  establish  formal  judicial  mechanisms  by  either  coalition  or  the 
Afghan  governments.38 

Meanwhile,  the  US  Supreme  Court  recently  held  in  Boumediene  v.  Bush  that  en- 
emy combatants  at  Guantanamo  are  entitled  to  constitutional  habeas  corpus 
rights.39  The  issue  of  Boumediene  s  reach  beyond  Guantanamo,  especially  to  Af- 
ghanistan, will  be  litigated  for  some  time,  and  that  case  turned  on  interpretation 
and  application  of  US  domestic  law.  In  any  event,  the  Supreme  Court  did  not  clar- 
ify exactly  what  procedural  structures  and  protections  apply  even  in  habeas  cases 
for  Guantanamo  detainees,  and  the  Court  seemed  to  have  Afghanistan  in  mind 
when  it  cautiously  suggested  that  practical  considerations  and  exigencies  of  foreign 
combat  zones  might  limit  the  reach  of  constitutional  habeas  rights  to  enemy  com- 
batant detainees  held  outside  Guantanamo.40 

Legal  requirements  aside,  US  forces  have  gradually  instituted  more  formalized 
procedural  mechanisms  for  adjudicating  detention  decisions  as  time  has  gone  on. 
The  little  detail  on  review  processes  in  Afghanistan  shared  openly  by  the  US  gov- 
ernment appears  mostly  in  court  filings  in  habeas  corpus  actions  brought  by 
Bagram  detainees.  These  public  documents  explain  that  by  2006  all  individuals 
brought  to  theater  detention  facilities  for  long-term  confinement  have  their  cases 
reviewed  by  a  five-officer  panel,  sitting  as  an  Enemy  Combatant  Review  Board, 
usually  within  seventy- five  days  of  capture  and  thereafter  every  six  months.  The  re- 
view board  may  recommend  by  a  majority  vote  to  the  commanding  general  or  his 
designee  whether  the  individual  should  continue  to  be  detained.41  Although  the  US 
government  maintains  that  the  Fourth  Geneva  Convention  is  inapplicable  as  a 
matter  of  law  to  Afghanistan  detainees  because  that  Convention  applies  to  civil- 
ians, not  combatants,  the  processes  US  forces  eventually  put  in  place  roughly  track 
the  requirements  of  Article  78,  which  calls  for,  among  other  things,  regular  pro- 
cesses and  periodic  review  (at  least  every  six  months)  for  security  internees.42 

So  far,  the  Afghanistan  case  has  produced  little  legal  consensus  on  minimum 
procedural  requirements  in  part  because  the  spectrum  of  views  spans  differing 
judgments  on  such  basic  questions  as  what  type  of  conflict  exists  (international 
versus  internal),  what  body  of  law  applies  (law  of  armed  conflict  versus  human 
rights  law  versus  domestic  Afghan  law,  or  some  combination)  and  what  specific 
minimum  requirements  those  bodies  of  law  impose  (mandatory  provisions  versus 
a  sliding  scale  depending  on  practicability).  Meanwhile,  US  forces  have  adopted  in- 
creasingly robust  processes  for  adjudicating  cases,  suggesting  at  least  some — 

350 


Matthew  C.  Waxman 


though  still  far  from  complete — convergence  between  the  aspirations  of  restrictive 
legal  views  and  the  pragmatic  and  ethical  inclinations  of  those  charged  with  waging 
the  conflict. 

Transitioning  Detention  Operations  to  Local  Civilian  Institutions 

A  final  issue  to  consider  is  the  transition  from  a  military  detention  to  a  civilian 
justice  system  in  Afghanistan.  Unlike  the  substantive  and  procedural  issues  dis- 
cussed above,  this  is  not  a  law  of  armed  conflict  issue  in  a  strict  sense  (except  for 
Geneva  Convention  rules  governing  repatriation).  But  it  is  entwined  with  the  other 
legal  issues,  and  the  strategic  necessity  of  resolving  it  effectively  may  impact  the  fu- 
ture development  of  the  law  of  armed  conflict. 

The  law  of  armed  conflict  is  generally  designed  to  minimize  unnecessary  suffer- 
ing in  wartime  and  to  facilitate  a  return  to  peace  and  public  order.  In  the  context  of 
conventional  warfare,  the  law  of  armed  conflict's  detention  authorities  and  rules 
generally  serve  well  these  goals:  until  order  is  restored  through  victory  or  settle- 
ment of  the  conflict  they  allow — with  sparse  procedural  requirements  compared 
to  peacetime  justice  systems — the  incapacitation  of  captured  individuals  pre- 
sumed (or  assessed)  likely  to  fight  again  if  released  and  they  protect  those  individu- 
als from  mistreatment.  For  the  most  part,  the  rules  align  with  the  law's  policy 
objectives,  including  the  strategic  necessities  of  detention  during  combat. 

US  detention  operations  have  taken  place  in  Afghanistan  amid  a  more  complex 
strategic  environment.  Operations  have  evolved  to  include  a  major  counterinsur- 
gency  component  against  Taliban  and  al  Qaeda  forces  conducting  guerrilla-style 
and  terrorist  operations  aimed  to  undermine  the  new  Afghan  government.  Of 
course,  the  role  and  rules  of  detention  in  counterinsurgency  conflicts  are  not  new 
problems  or  unique  problems.  One  aspect  that  distinguishes  the  Afghanistan  case, 
however,  is  the  weakness  or  nascent  condition  of  State  institutions,  including  law 
and  order  systems,  which  needed  to  be  almost  completely  reconstituted  after  coali- 
tion and  Afghan  forces  overthrew  the  Taliban  in  2001.  Indeed,  the  collapse  or 
weakness  of  governance  in  many  parts  of  the  country  and  the  inability  of  the  State 
to  provide  basic  State  services  like  policing  and  criminal  justice  create  an  environ- 
ment hospitable  to  insurgent  forces.43  Moreover,  the  Afghan  government  lacks  ef- 
fective institutions  of  governance,  including  a  police  and  justice  sector  capable  of 
maintaining  order.  This  is  not  just  a  counterinsurgency  campaign  to  save  a  mature 
government;  it  is  a  counterinsurgency  campaign  while  building  a  new  government 
in  a  region  long  accustomed  to  internal  strife  and  warlordism. 

Amid  this  setting,  a  2004  Pentagon  inspection  and  assessment  of  US  detention 
operations  in  Afghanistan  concluded  that  "US  detainee  operations  can  only  be 

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The  Law  of  Armed  Conflict  and  Detention  Operations  in  Afghanistan 

normalized  by  the  emergence  of  an  Afghan  justice  and  corrections  system  that  can 
assume  the  responsibility  for  the  long-term  detention  of  low  level  enemy  combat- 
ants currently  held  by  the  US."44  The  report  continued: 

The  value  of  continuing  to  keep  low-level  enemy  combatants  in  custody  is  simply  to 
keep  individuals  that  represent  a  proven  threat  to  coalition  forces  off  the  battlefield. 
This  is  a  function  that  can  and  should  be  undertaken  by  the  Afghan  government. .  . . 
Despite  efforts  to  improve  the  process,  the  press  of  a  growing  detainee  population 
without  an  Afghan  solution  or  continued  transfer  to  [Guantanamo]  will  continue  to 
create  the  potential  for  bad  choices  to  be  made  at  several  points  in  that  process.45 

In  2005  the  governments  of  the  United  States  and  Afghanistan  reached 
diplomatic  agreements  to  "allow  for  the  gradual  transfer  of  Afghan  detainees  to  the 
exclusive  custody  and  control  of  the  Afghan  Government."46  But  this  gradual  tran- 
sition has  been  slowed  since  then  by  the  shakiness  of  Afghan  security  institutions 
and  inability  to  install  domestic  legal  authorities  and  processes  capable  of  handling 
or  prosecuting  captured  militants.47 

These  factors  raise  several  policy  questions  onto  which  the  law  of  armed  conflict 
no  longer  maps  so  neatly:  Does  the  long-term  reliance  on  foreign  military  deten- 
tion strengthen  versus  deplete  or  build  versus  undermine  public  confidence  in  do- 
mestic civilian  justice  institutions?  As  coalition  forces  turn  over  more  and  more 
security  and  governance  functions  to  Afghan  authorities,  how  should  responsibil- 
ity for  detaining  militants,  including  those  already  in  custody,  be  transferred? 
Many  features  of  this  conflict  are  unique  to  Afghanistan,  but  these  basic  problems 
resemble  those  faced  in  Iraq  and  could  likely  recur  in  other  areas  where  governance 
collapses,  such  as  Somalia. 

One  lesson  that  the  US  military  appears  to  have  drawn  in  Afghanistan,  as  well  as 
in  Iraq,  is  the  strategic  imperative  of  high  substantive  and  procedural  standards  of 
detainee  treatment,  especially  when  seeking  to  bolster  rule-of-law  institutions.48 
The  new  Army  and  Marine  Corps  Counterinsurgency  Field  Manual  emphasizes  this 
principle,  not  only  for  legal  and  ethical  reasons,  but  also  for  military  effectiveness.49 
After  noting,  for  example,  that  the  "nature  of  [counterinsurgency]  operations 
sometimes  makes  it  difficult  to  separate  potential  detainees  from  innocent  by- 
standers, since  insurgents  lack  distinctive  uniforms  and  deliberately  mingle  with 
the  local  populace,"50  the  manual  goes  on  to  warn  that  "treating  a  civilian  like  an 
insurgent  is  a  sure  recipe  for  failure."51  It  continues: 

[Counterinsurgency]  operations  strive  to  restore  order,  the  rule  of  law,  and  civil 
procedures  to  the  authority  of  the  [host  nation]  government.  .  .  .  Multinational  and 
U.S.  forces  brought  in  to  support  this  objective  must  remember  that  the  populace  will 

352 


Matthew  C.  Waxman 


scrutinize  their  actions.  People  will  watch  to  see  if  Soldiers  and  Marines  stay  consistent 
with  this  avowed  purpose.  Inconsistent  actions  furnish  insurgents  with  valuable  issues 
for  manipulation  and  propaganda.52 

Although  the  law  of  armed  conflict  has  little  to  say  directly  on  the  issue  of  transfer- 
ring detention  responsibilities  from  military  to  civilian  systems,  the  substantive 
and  procedural  legal  issues  described  earlier  affect  this  transition  process  insofar  as 
adherence  to  their  standards  helps  lay  a  foundation  of  support  and  legitimacy  upon 
which  local  rule  of  law  can  be  built. 

Conclusion 

The  operational  and  strategic  significance  of  detention  standards  imply  several 
conclusions  about  the  future  development  and  refinement  of  the  law  of  armed 
conflict,  returning  the  discussion  to  the  legal  controversies  discussed  earlier.  As  to 
substantive  treatment  standards,  the  strategic  rationale  is  likely  to  reinforce 
strongly  the  idea  of  universally  applicable  minimum  requirements,  despite  initial 
efforts  by  the  Bush  administration  to  reserve  greater  flexibility.  As  to  procedural  re- 
quirements, in  thinking  about  the  future  trajectory  of  the  law  of  armed  conflict  (or 
the  application  of  human  rights  law  in  armed  conflict),  the  more  that  rule-of-law 
promotion  features  as  a  strategic  objective,  the  more  robust  procedural  protections 
for  detainees  will  align  with  military  necessity,  rather  than  collide  with  it. 

Notes 

1.  Hamdan  v.  Rumsfeld,  548  U.S.  557  (2006). 

2.  UN  Committee  against  Torture,  Consideration  of  Reports  Submitted  by  States  Parties 
under  Article  19  of  the  Convention,  Second  Periodic  Reports  of  States  Parties  Due  in  1999,  Ad- 
dendum (United  States  of  America)  Annex  1,  at  47,  U.N.  Doc.  CAT/C/48/Add.3  (May  6,  2005), 
available  at  http://www.state.gOv/g/drl/rls/45738.htm#part_one;  see  also  Hamdi  v.  Rumsfeld, 
542  U.S.  507, 5 1 8-2 1  (2004)  (recognizing  the  executive  branch's  authority  to  detain  enemy  com- 
batants— at  least  those  captured  in  the  course  of  operations  in  Afghanistan — pursuant  to  the 
congressional  "Authorization  for  Use  of  Military  Force"  against  those  responsible  for  the  Sep- 
tember 11  attacks). 

3.  As  well  as  transferring  several  hundred  detainees  from  Afghanistan  to  Guantanamo, 
though  I  do  not  discuss  those  legal  issues  here. 

4.  Declaration  of  Colonel  Rose  M.  Miller  ^  8,  Ruzatullah  v.  Rumsfeld,  No.  06-CV-01707 
(GK)  (D.D.C.  Nov.  20,  2006). 

5.  Id. 

6.  Eric  Schmitt  &  Tim  Golden,  U.S.  Planning  Big  New  Prison  in  Afghanistan,  NEW  YORK 
TIMES,  May  17,  2008,  at  AOL 

7.  SeeS.C.  Res.  170742,  U.N.  Doc.  S/RES/ 1707  (Sept.  12,  2006);  S.C.  Res.  1386, 1 3,  U.N. 
Doc.  S/RES/1386  (Dec.  20,  2001). 

353 


The  Law  of  Armed  Conflict  and  Detention  Operations  in  Afghanistan 

8.  See  Ashley  S.  Deeks,  Starting  from  Here,  in  INTERNATIONAL  LAW  AND  MILITARY  OPERA- 
TIONS (Michael  D.  Carsten  ed.,  2008)  (Vol.  84,  US  Naval  War  College  International  Law 
Studies). 

9.  See  Adam  Roberts,  The  Prisoner  Question:  If  the  U.S.  Has  Acted  Lawfully,  What's  the  Furor 
About?,  Washington  Post,  Feb.  3, 2002,  at  Bi. 

10.  See  JAMES  R.  SCHLESINGER  ET  AL.,  FINAL  REPORT  OF  THE  INDEPENDENT  PANEL  TO 

Review  DoD  Detention  Operations  80  (2004),  available  at  http://news.fmdlaw.com/wp/ 
docs/dod/abughraibrpt.pdf. 

11.  See  Memorandum  from  George  Bush  to  Vice  President  et  al.,  Humane  Treatment  of  Al 
Qaeda  and  Taliban  Detainees  (Feb.  7,  2002),  reprinted  in  THE  TORTURE  PAPERS:  THE  ROAD  TO 
ABU  GHRAIB  134  (Karen  J.  Greenberg  &  Joshua  Dratel  eds.,  2005),  available  at  http:// 
www.washingtonpost.com/wp-srv/nation/documents/020702bush.pdf  [hereinafter  President's 
Memo]. 

12.  Article  3  is  referred  to  as  "Common"  because  it  is  found  identically  in  each  of  the  four 
Geneva  Conventions.  See  Convention  for  the  Amelioration  of  the  Condition  of  the  Wounded 
and  Sick  in  Armed  Forces  in  the  Field  art.  3,  Aug.  12,  1949,  6  U.S.T.  31 14,  75  U.N.T.S.  31;  Con- 
vention for  the  Amelioration  of  the  Condition  of  Wounded,  Sick  and  Shipwrecked  Members  of 
Armed  Forces  at  Sea  art.  3,  Aug.  12, 1949, 6  U.S.T.  3217,  75  U.N.T.S.  85;  Convention  Relative  to 
the  Treatment  of  Prisoners  of  War  art.  3,  Aug.  12, 1949, 6  U.S.T.  3316, 75  U.N.T.S.  135  [hereinaf- 
ter Geneva  III];  and  Convention  Relative  to  the  Protection  of  Civilian  Persons  in  Time  of  War 
art.  3,  Aug.  12, 1949, 6  U.S.T.  3516, 75  U.N.T.S  287  [hereinafter  Geneva  IV];  all  rep rintedin  DOC- 
UMENTS ON  THE  LAWS  OF  WAR  (Adam  Roberts  &  Richard  Guelff  eds.,  3d  ed.  2000)  at  197,  222, 
244  and  301,  respectively.  Article  3  applies  to  all  cases  ". . .  of  armed  conflict  not  of  an  interna- 
tional character  occurring  in  the  territory  of  one  of  the  High  Contacting  Parties 

13.  See  President's  Memo,  supra  note  1 1.  For  a  contrary  view,  see  Memorandum  from  Wil- 
liam H.  Taft  IV,  Legal  Adviser,  Department  of  State,  to  Counsel  to  the  President,  Comments  on 
Your  Paper  on  the  Geneva  Conventions  (Feb.  2, 2002),  reprinted  in  TORTURE  PAPERS,  supra  note 
1 1,  at  129,  available  at  http://www.nytimes.com/packages/html/politics/20040608_DOC.pdf. 

14.  See  President's  Memo,  supra  note  11. 

15.  Id. 

16.  Protocol  Additional  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  International  Armed  Conflicts  art.  4,  June  8, 1977, 1 125  U.N.T.S.  3,  re- 
printed in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  12,  at  422. 

17.  See  John  B.  Bellinger,  US  State  Department  Legal  Advisor,  Oxford  Leverhulme 
Programme  Lecture  on  the  Changing  Character  of  War  (Dec.  10,  2007). 

18.  Hamdan  v.  Rumsfeld,  548  U.S.  557,  629-31  (2006). 

1 9.  Memorandum  from  Gordon  England,  Deputy  Secretary  of  Defense,  to  the  Secretaries  of 
the  Military  Departments  et  al.,  Application  of  Common  Article  3  of  the  Geneva  Conventions  to 
the  Treatment  of  Detainees  in  the  Department  of  Defense  (July  7, 2006),  http://www.defenselink 
.mil/home/dodupdate/For-the-record/documents/200607 1 1  .html. 

20.  Supra  note  12. 

2 1 .  Some  of  the  sparse  State  practice  on  this  issue,  for  example,  US  practice  during  the  Viet- 
nam War  and  procedures  employed  by  Canadian  and  British  militaries,  is  described  in  Robert 
Chesney  &  Jack  Goldsmith,  Terrorism  and  the  Convergence  of  Criminal  and  Military  Detention 
Models,  60  STANFORD  LAW  REVIEW  1079,  1090-92  (2008). 

22.  Geneva  III,  supra  note  12,  art  5. 

23.  See  Headquarters,  Departments  of  the  Army,  the  Navy,  the  Air  Force  and  the  Marine 
Corps,  Army  Regulation  190-8/OPNAVINST  3461.6/AFJI  31-304/MCO  3461.1,  Enemy 


354 


Matthew  C.  Waxman 


Prisoners  of  War,  Retained  Personnel,  Civilian  Internees  and  Other  Detainees  §  l-6(a) 
(1997),  available  at  http://www.au.af.mil/au/awc/awcgate/law/arl90-8.pdf. 

24.  See  Katharine  Q.  Seelye,  Detainees  Are  Not  P.  O.  W.  's,  Cheney  and  Rumsfeld  Declare,  NEW 
YORK  TIMES,  Jan.  28,  2002,  at  A6. 

25.  See  Michael  Ratner,  Letter  to  the  Editor,  When  Are  Captives  Prisoners  of  War?,  NEW 
YORK  TIMES,  Jan.  16, 2002,  at  A 18. 

26.  See,  e.g.,  W.  Michael  Reisman,  Rasul  v.  Bush:  A  Failure  to  Apply  International  Law,  2 
Journal  of  International  Criminal  Justice  973  (2004). 

27.  In  the  1991  Persian  Gulf  War,  the  US  military  conducted  about  twelve  hundred  such 
hearings  for  captured  Iraqi  individuals  thought  to  be  pro-Saddam  fighters,  and  found  about  nine 
hundred  of  them  to  be  displaced  civilians,  who  were  promptly  released.  See  Department  of  De- 
fense, Conduct  of  the  Persian  Gulf  War  Final  Report  to  Congress  578  (2002). 

28.  Commentary  on  Geneva  Convention  III  Relative  to  the  Treatment  of  Pris- 
oners OF  WAR  (Jean  S.  Pictet  ed.,  1960)  [hereinafter  ICRC  COMMENTARY]. 

29.  See  Matthew  C.  Waxman,  Detention  as  Targeting:  Standards  of  Certainty  and  Detention  of 
Suspected  Terrorists,  108  COLUMBIA  LAW  REVIEW  1365  (2008). 

30.  See  John  B.  Bellinger,  US  State  Department  Legal  Advisor,  Remarks  to  the  Committee 
Against  Torture  (May  5, 2006),  available  at  http://www.state.gOv/g/drl/rls/68557.htm;  Bellinger, 
supra  note  17. 

31.  See,  e.g.,  Government's  Motion  to  Dismiss,  Al  Maqaleh  v.  Gates,  No.  06-CV-01669 
(JDB)  (D.D.C.  March  5,  2007);  Government's  Response  to  Order  to  Show  Cause  and  Motion  to 
Dismiss  for  Lack  of  Jurisdiction,  Ruzatullah  v.  Rumsfeld,  No.  06-CV-01707  (GK)  (D.D.C.  Nov. 
20,  2006). 

32.  See  Human  Rights  First,  Arbitrary  Justice:  Trials  ofBagram  and  Guantanamo  Detainees  in 
Afghanistan  (Apr.  2008),  available  at  http://www.humanrightsfirst.info/pdf/USLS-080409 
-arbitrary-justice-report.pdf;  Tim  Golden  &  David  Rohde,  Afghans  Hold  Secret  Trials  for  Men 
That  U.S.  Detained,  NEW  YORK  TIMES,  Apr.  10, 2008,  at  A6  (citing  criticisms  from  human  rights 
organizations). 

33.  International  Covenant  on  Civil  and  Political  Rights  art.  9,  Dec.  16, 1966,  999  U.N.T.S. 
171. 

34.  See,  e.g.,  US  Detentions  in  Afghanistan:  An  Aide-Memoire/or  Continued  Action  (Amnesty 
International),  June  7,  2005,  available  at  http://www.amnesty.org/en/library/asset/AMR51/093/ 
2005/en/dom-AMR5 10932005en.pdf  ("When  [the]  armed  conflict  ended  [in  2002],  those  who 
were  captured  by  the  USA  during  hostilities . . .  were  required  to  be  released,  unless  charged  with 
criminal  offences.  Civilians  detained  in  that  conflict .  .  .  too  were  required,  when  that  conflict 
ended,  to  be  released,  unless  charged  with  recognized  criminal  offences.") 

35.  See  ICRC,  International  Humanitarian  Law  and  the  Challenges  of  Contemporary  Armed 
Conflicts,  Official  Working  Document  of  the  30th  International  Conference  of  the  Red  Cross 
and  Red  Crescent,  Geneva,  Nov.  2007,  annex  1;  Jelena  Pejic,  Procedural  Principles  and  Safeguards 
for  Internment/Administrative  Detention  in  Armed  Conflict  and  Other  Situations  of  Violence,  87 
INTERNATIONAL  REVIEW  OF  THE  RED  CROSS  375  (2005). 

36.  See  ICRC,  US  Detention  Related  to  the  Events  of  1 1  September  200 1  and  Its  Aftermath  - 
The  Role  of  the  ICRC,  July  30,  2008,  available  at  http://icrc.org/web/eng/siteengO.nsf/htmlall/ 
usa-detention-update- 121 205?opendocument. 

37.  See  Waxman,  supra  note  29,  at  1402-29. 

38.  How  much  these  efforts  would  be  complicated  is  the  source  of  significant  debate  be- 
tween the  US  government  and  human  rights  organizations. 

39.  128S.  Ct.  2229(2008). 


355 


The  Law  of  Armed  Conflict  and  Detention  Operations  in  Afghanistan 

40.  See  id.  at  2259-62. 

41.  See  Declaration  of  Colonel  James  W.  Gray  ^  11-13,  Al  Maqaleh  v.  Gates,  No.  06-CV- 
01669  (JDB)  (D.D.C.  March  3,  2007)  (discussing  review  process  for  detainees  in  Afghanistan); 
Declaration  of  Colonel  Rose  M.  Miller  fflj  10-12,  Ruzatullah  v.  Rumsfeld,  No.  06-CV-01707 
(GK)  (D.D.C.  Nov.  19,  2006)  (discussing  detention  procedures  and  review  process  for  enemy 
combatants  detained  in  Afghanistan). 

42.  See  Geneva  IV,  supra  note  12,  art.  78. 

43.  See  Seth  G.  Jones,  The  Rise  of  Afghanistan's  Insurgency,  32  INTERNATIONAL  SECURITY  7 
(2008). 

44.  Combined  Forces  Command-Afghanistan  Area  of  Operations,  Detainee  Operations, 
Report  of  Inspection,  June  26,  2004,  at  20. 

45.  Id. 

46.  Press  Release,  US  Embassy,  Kabul,  Afghanistan,  Detainee  Transfers  to  Afghanistan  (Aug. 
4,  2005),  available  at  http://kabul.usembassy.gov/pr080405.html. 

47.  See  Human  Rights  First,  supra  note  32;  Schmitt  &  Golden,  supra  note  6. 

48.  See  Carlotta  Gall,  U.S.-Afghan  Foray  Reveals  Friction  on  Antirehel  Raids,  NEW  YORK 
TIMES,  July  3,  2006,  at  A9;  Alissa  Rubin,  U.S.  Remakes  Jails  in  Iraq,  but  Gains  Are  at  Risk,  NEW 
YORK  TIMES,  June  2,  2008,  at  Al. 

49.  Headquarters,  Department  of  the  Army  &  Headquarters,  Marine  Corps  Combat  Devel- 
opment Command,  FM  3-24/MCWP  3-33.5,  Counterinsurgency  1ffl  7-38,  7-40  (2006). 

50.  Id.,  H7-38. 

51.  Id.,  U7-40. 

52.  Id.,  H8-42. 


356 


XIII 


US  Detention  of  Taliban  Fighters: 
Some  Legal  Considerations 


Stephane  Ojeda 


* 


During  the  last  seven  years  detention  activities  by  US  forces  involved  in  the 
Afghanistan  conflict1  have  raised  numerous  questions  from  the  perspec- 
tive of  international  law,  in  particular  international  humanitarian  law  (IHL);2  this 
article  addresses  some  of  them.  The  focus  will  be  on  identifying  the  applicable  law 
throughout  the  various  stages  of  the  hostilities  (Part  I)  and  issues  related  to  the  depri- 
vation of  liberty  of  Taliban  fighters  that  entails  its  practical  application  (Part  II).3 

No  issues  pertaining  to  ius  ad  bellumy  i.e.,  related  to  the  lawfulness  of  the  use  of 
force,  are  discussed  in  this  article.  Given  that  there  is  often  some  confusion  as  to  the 
relationship  between  the  ius  ad  bellum  and  IHL  (ius  in  hello) ,  it  must  be  stressed 
that  IHL  applies  equally  to  all  parties  to  an  armed  conflict,  and  that  this  is  inde- 
pendent of  whether  the  use  of  force  has  been  lawful  or  not  under  the  ius  ad  bellum.4 

IHL  only  applies  in  situations  of  armed  conflict.  Treaty  law  has  traditionally  dis- 
tinguished between  international  armed  conflicts  and  non-international  armed 
conflicts,  the  former  being  regulated  in  far  more  detail  than  the  latter  as  can  be  seen 
in  the  core  IHL  treaties,  the  1949  Geneva  Conventions5  and  their  two  1977  Addi- 
tional Protocols.6  The  last  years  have,  however,  seen  a  growing  tendency  to  regulate 


*  Legal  Adviser  to  the  Operations  at  the  Legal  Division  of  the  International  Committee  of  the 
Red  Cross  (ICRC)  in  Geneva.  The  article  reflects  the  views  of  the  author  alone  and  not 


necessarily  those  of  the  ICRC. 


US  Detention  of  Taliban  Fighters:  Some  Legal  Considerations 

international  and  non-international  armed  conflicts  in  the  same  way  in  treaty  law, 
and  customary  international  law  has  developed  in  a  way  as  to  largely  apply  the 
same  rules  in  both  types  of  conflicts.7  However,  there  are  still  important  differences 
between  the  two  situations  concerning  the  applicable  law.  To  give  two  examples, 
the  concept  of  combatant  status,  which  entails,  inter  aliay  the  privilege  of  exclusion 
from  criminal  prosecution  for  lawful  acts  of  war,  and  prisoner  of  war  (POW)  status 
only  exist  in  international  armed  conflicts. 

Following  the  terrorist  acts  of  September  11,  2001  (9/11),  President  Bush  de- 
clared that  the  United  States  was  at  "war  against  terrorism."8  On  October  7,  the 
United  States  led  a  military  campaign  against  the  de  facto  government  of  Afghani- 
stan— the  Taliban — accused  of  harboring  the  al-Qaeda  group,  which  was  held  re- 
sponsible for  9/11.  Since  the  commencement  of  this  military  campaign,  the  United 
States  has  detained  thousands  of  people.  Some  suspected  Taliban  and  al-Qaeda 
members,  as  well  as  other  individuals  suspected  of  supporting  them  or  of  being  as- 
sociated with  them,  were  transferred  beginning  in  January  2002  to  the  US  intern- 
ment facilities  at  Guantanamo  Bay,  Cuba.  Between  2002  and  2005,  the  United 
States  brought  about  eight  hundred  individuals  to  Guantanamo.  For  various  rea- 
sons those  transfers  almost  completely  ceased  by  the  end  of  2004.  Since  that  time, 
the  great  majority  of  persons  captured  have  been  held  in  Afghanistan,  mainly  in  the 
Bagram  Theatre  Internment  Facility;9  the  United  States  has  brought  only  about 
twenty  individuals  to  Guantanamo.10 

At  the  time  this  is  written,  about  240  persons  are  held  at  Guantanamo  Bay  and 
about  600  at  Bagram.  The  closure  of  Guantanamo  is  due  to  take  place  no  later  than 
January  22,  20 10,11  while  the  building  of  a  new  Bagram  facility  in  Afghanistan  with 
a  greater  detention  capacity  has  been  reported  in  the  media.12 

I.  The  Law  Applicable  to  the  Situation  in  Afghanistan 

In  order  to  determine  the  applicable  law  and  standards  governing  any  military  ac- 
tivity, such  as  deprivation  of  liberty,  a  legal  determination  of  the  situation  existing 
at  the  time  the  persons  were  captured  is  necessary.  From  October  7,  2001  to  date, 
two  phases  in  the  Afghanistan  situation  can  clearly  be  identified:  a  first  phase  in 
which  the  US-led  coalition  forces  fought  against  the  Afghan  authorities  and  non- 
State  armed  groups,  followed  by  a  phase  in  which  the  US  and  other  foreign  forces 
assisted  the  Afghan  authorities  in  fighting  non-State  armed  groups.13 

A.  The  Situation  from  October  7, 2001  to  June  18, 2002 

Even  though  only  recognized  by  a  few  States14  as  the  legitimate  authorities  of  Af- 
ghanistan, the  Taliban  were  controlling  and  ruling  over  about  95  percent  of  the 

358 


Stephane  Ojeda 


Afghan  territory  in  October  2001.  Afghanistan  clearly  had  a  functioning  Taliban 
government  and  its  armed  wing  was  the  country's  regular  armed  forces.  The 
airstrikes  by  the  US-led  coalition  that  started  on  October  7,  2001  thus  clearly  con- 
stituted an  international  armed  conflict  between  the  coalition  States  and 
Afghanistan. 

An  international  armed  conflict  is  generally  defined  as  "any  difference  arising 
between  two  States  and  leading  to  intervention  of  members  of  the  armed  forces,"15 
or,  as  the  International  Criminal  Tribunal  for  the  former  Yugoslavia  has  put  it,  as  a 
situation  where  "there  is  a  resort  to  armed  force  between  States."16 

The  four  Geneva  Conventions  of  1949  were  thus  applicable,  but  not  Additional 
Protocol  I  (AP  I)  to  which  neither  the  United  States  nor  Afghanistan  was  a  State 
party.  While  the  Geneva  Conventions  focus  almost  entirely  on  the  protection  of 
persons  in  the  hands  of  the  enemy,  AP  I  contains  detailed  rules  on  the  conduct  of 
hostilities,  including  air-to-ground  operations.  Consequently,  the  airstrikes,  which 
were  the  predominant  feature  at  the  beginning  of  the  military  operations,  were  es- 
sentially subject  to  the  rules  of  customary  international  law.  However,  these  rules 
of  customary  international  law  now  correspond  largely  to  those  of  AP  I.  These  in- 
clude the  principle  of  distinction  and  the  fundamental  rules  derived  from  it,  such  as 

•  the  prohibition  of  direct  attacks  on  civilians  or  civilian  objects; 

•  the  prohibition  of  indiscriminate  attacks,  including  those  that  may  be 
expected  to  cause  excessive  incidental  civilian  casualties  or  damages  (principle  of 
proportionality); 

•  the  prohibition  on  attacking  objects  indispensable  for  the  survival  of  the 
civilian  population; 

•  the  prohibition  on  attacking  cultural  property; 

•  the  obligation  to  take  precautions  in  attacks; 

•  the  obligation  to  take  precautions  against  attacks;  and 

•  the  prohibition  on  the  use  of  human  shields.17 

In  addition,  the  rules  contained  in  the  1907  Hague  Regulations,18  which  are  con- 
sidered as  reflecting  customary  international  law,19  have  also  been  of  primary  im- 
portance to  the  international  armed  conflict  in  Afghanistan. 

B.  The  Situation  from  June  19, 2002  to  Date 

The  fall  of  the  Taliban  did  not  necessarily  mean  the  cessation  of  active  armed  hos- 
tilities. There  are  certainly  still  active  armed  hostilities  in  Afghanistan;  however,  the 
nature  of  the  armed  conflict  has  changed. 


359 


US  Detention  of  Taliban  Fighters:  Some  Legal  Considerations 

Following  the  convening  of  the  Loya  Jirga.  in  Kabul  in  June  2002,  an  Afghan 
transitional  government  was  established  on  June  19,  2002.  It  received  unanimous 
recognition  by  the  international  community  of  States  and  could  also  claim  broad- 
based  recognition  within  Afghanistan  through  the  Loya  Jirga  process.  This  new 
government  of  Afghanistan  has  been  leading  an  armed  struggle  against  an  insur- 
gency (i.e.,  the  remnants  of  the  Taliban  and  other  non-State  armed  groups),  which 
can  be  qualified  as  a  non-international  armed  conflict.  Indeed,  the  criteria  usually 
used  in  IHL  to  define  non-international  armed  conflicts  seem  to  be  met:  the  hostil- 
ities have  reached  a  minimum  level  of  intensity,  and  non-governmental  groups  in- 
volved in  the  conflict  can  be  considered  as  "parties  to  the  conflict"  since  they 
possess  organized  armed  forces,  operate  under  a  certain  command  structure  and 
have  the  capacity  to  sustain  military  operations.20 

This  non-international  armed  conflict  is  "internationalized"  by  the  participa- 
tion of  foreign  forces,  including  those  of  the  United  States,  but  because  those  for- 
eign forces  are  assisting  the  Afghan  government,  it  still  cannot  be  characterized  as 
an  international  armed  conflict  since  it  does  not  involve  opposing  States. 

Recent  developments  in  the  conduct  of  the  hostilities,  in  particular  the  US 
cross-border  operations  into  Pakistan,  might  raise  further  questions  about  the  le- 
gal qualification  of  the  nature  of  the  situation,  i.e.,  is  there  an  international  armed 
conflict  between  the  United  States  and  Pakistan?  According  to  the  information 
available  at  the  time  of  writing,  it  is  the  author's  opinion  that  those  operations  rep- 
resent a  "spill-over"  of  the  armed  hostilities  in  the  Afghan  non-international 
armed  conflict  into  Pakistan  and  do  not  represent  a  separate  armed  conflict. 

Common  Article  3  (CA3)  of  the  four  Geneva  Conventions  of  1949  and  custom- 
ary IHL  rules  are  thus  applicable  to  this  situation,21  but  not  Additional  Protocol  II 
(AP  II)  to  which  neither  the  United  States  nor  Afghanistan  are  State  parties. 

II.  Deprivation  of  Liberty  of  Taliban  Fighters 

The  two  phases  in  the  Afghanistan  conflict  have  direct  consequences  on  the  status 
given  to  the  Taliban  deprived  of  liberty  and  the  legal  standards  governing  their  de- 
privation of  liberty. 

A.  Taliban  Captured  before  June  19, 2002 

In  an  international  armed  conflict  governed  by  the  Geneva  Conventions,  such  as 
the  one  in  Afghanistan  between  October  2001  and  June  2002,  there  are  two  main 
categories  of  persons  deprived  of  liberty:  either  they  are  captured  combatants  en- 
titled to  POW  status  and  protected  by  the  Third  Geneva  Convention  (GC  III),22  or 


360 


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they  are  civilians  interned  or  detained  and  protected  by  the  Fourth  Geneva  Con- 
vention (GC  IV).23 

Article  4,  GC  III  identifies  several  groups  of  persons  that,  having  fallen  into  the 
power  of  the  enemy,  are  to  be  considered  POWs.  The  first  group  of  persons  in- 
cludes members  of  the  armed  forces  of  a  party  to  the  conflict.  As  stated  earlier, 
given  that  the  Taliban  government  was  not  recognized  by  a  large  part  of  the  inter- 
national community,  including  the  United  States,  members  of  the  Taliban  regular 
armed  forces  fell  into  the  category  of  persons  described  in  Article  4(A)(3)  of  GC  III, 
i.e.,  "members  of  regular  armed  forces  who  profess  allegiance  to  a  government  or 
an  authority  not  recognized  by  the  Detaining  Power."  These  "members  of  regular 
armed  forces"  differ  from  those  referred  to  in  Article  4(A)(1)  ("members  of  the 
armed  forces  of  a  Party  to  the  conflict")  in  one  respect  only:  the  authority  to  which 
they  profess  allegiance  is  not  recognized  by  the  adversary  as  a  party  to  the  conflict. 

As  pointed  out  in  the  International  Committee  of  the  Red  Cross  (ICRC)  Com- 
mentary, the  "regular  armed  forces" — be  they  of  recognized  or  unrecognized  gov- 
ernments— are  assumed  to  have  all  the  material  characteristics  and  all  the 
attributes  of  the  armed  forces  falling  within  Article  4(A)(1),  GC  III:  they  wear  uni- 
forms, they  have  an  organized  hierarchy,  and  they  know  and  respect  the  laws  and 
customs  of  war.24  Therefore,  the  delegates  to  the  1949  Diplomatic  Conference 
thought  that  it  was  not  necessary  to  expressly  specify  that  such  armed  forces  had  to 
satisfy  the  requirements  laid  down  in  Article  4(A)  (2)  (a),  (b),  (c)  and  (d):  that  of  be- 
ing commanded  by  a  person  responsible  for  his  subordinates,  that  of  having  a  fixed 
distinctive  sign  recognizable  at  a  distance,  that  of  carrying  arms  openly  and  that  of 
conducting  operations  in  compliance  with  IHL.25  It  was  presumed  that  States'  reg- 
ular armed  forces  complied  with  these  requirements.26 

While  it  recognized  the  application  of  GC  III  in  the  conduct  of  armed  hostilities 
against  the  Taliban,  the  US  administration  reached  the  conclusion,  as  set  forth  in  a 
2002  White  House  memorandum,  that  the  Taliban  collectively  were  not  entitled  to 
POW  status  because  they  were  not  fulfilling  the  necessary  criteria  under  Article  4  of 
GC  III.27  This  collective  denial  of  POW  status  for  the  adversary  armed  forces  is 
highly  problematic.  The  main  reasons  invoked  were  that  the  Taliban  did  not  dis- 
tinguish themselves  from  the  general  population  and  did  not  obey  the  laws  and 
customs  of  war.28 

It  is  highly  unlikely  that  none  of  the  Taliban  fighters  complied  with  these  re- 
quirements. This  is  particularly  evident  with  regard  to  the  obligation  to  distinguish 
oneself  during  an  attack.  Indeed,  it  has  been  argued  that  the  Taliban  fighters  were 
clearly  distinguishable  from  the  civilian  population  because  they  wore  black  tur- 
bans and  had  scarves  indicating  to  which  force  they  belonged.29  Thus,  the  require- 
ment to  distinguish  oneself  could  not  be  assessed  in  a  generalized  manner,  but  had 

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US  Detention  of  Taliban  Fighters:  Some  Legal  Considerations 

to  be  decided  for  each  captured  person.  According  to  Article  5,  GC  III,30  a  "compe- 
tent tribunal"  is  to  decide  in  each  individual  case  whether  a  person  was  indeed  dis- 
tinguishing her/himself.  An  individualized  factual  assessment  was  also  necessary 
for  the  other  requirements.  Given  that  there  was  debate  about  whether  these  con- 
ditions were  fulfilled,  there  was  reason  for  doubt  and  thus  a  competent  tribunal — 
and  not  the  executive  authorities  in  Washington — should  have  made  a  finding  on 
the  facts  and  ruled  on  whether  the  person  in  question  was  or  was  not  a  PO W.  This 
competent  tribunal  could  have  been  either  civilian  or  military.31  Until  the  tribunal 
has  given  its  ruling,  the  person  deprived  of  his  or  her  liberty  must  be  treated  as  a 
POW. 

Because  of  the  position  enunciated  in  the  2002  White  House  memorandum 
competent  tribunals  were  never  established  in  Afghanistan.  But  in  response  to  a 
US  Supreme  Court  decision  in  June  2004,  according  to  which  US  courts  have  ju- 
risdiction to  hear  legal  challenges  on  behalf  of  persons  detained  at  Guantanamo,32 
the  US  Department  of  Defense  (DoD)  established  administrative  hearings,  called 
Combatant  Status  Review  Tribunals  (CSRTs).33  The  purpose  of  the  CSRTs  is  to 
review  whether  each  person  meets  the  criteria  to  be  designated  as  an  enemy  com- 
batant and  to  allow  those  persons  to  contest  such  designation.34  US  authorities 
have  stated  that  CSRT  procedures  provide  a  process  similar  to  that  of  a  competent 
tribunal  under  Article  5,  GC  III.35  In  this  regard,  it  must  be  argued  that  the  CSRT 
and  Article  5  hearings  serve  different  purposes  and  operate  under  different  cir- 
cumstances. Article  5  hearings  are  meant  to  take  place  on  or  near  the  zone  of  com- 
bat, immediately  after  capture,  thereby  maximizing  availability  of  witnesses  and 
evidence.  They  are  designed  to  swiftly  determine  a  detainee's  legal  status,  i.e.,  if  he 
or  she  is  entitled  to  POW  status.  In  contrast,  CSRTs  started  to  operate  in  July  2004, 
two  and  a  half  years  after  the  arrival  of  the  first  detainees  at  Guantanamo  from  Af- 
ghanistan and  thousands  of  miles  from  the  combat  zone.  Moreover,  CSRTs  may 
only  confirm  the  enemy  combatant  designation  or  conclude  it  was  an  error;  they 
do  not  have  the  authority  or  the  option  of  declaring  a  detainee  a  lawful  combatant, 
i.e.,  a  POW. 

What  would  be  the  main  consequences  if  a  Taliban  fighter  had  received  POW 
status  after  an  Article  5  hearing?  In  those  circumstances,  he  could  lawfully  be  de- 
prived of  liberty  until  the  end  of  active  hostilities  of  the  international  armed  con- 
flict.36 He  could  not  be  prosecuted  for  his  mere  participation  in  hostilities,  unless 
he  had  committed  a  war  crime.  If  prosecuted  for  war  crimes,  the  concerned  POW 
should  be  sentenced  by  the  same  courts  and  according  to  the  same  procedures  as  in 
the  case  of  members  of  the  armed  forces  of  the  detaining  power,  i.e.,  by  "court  mar- 
tial" if  prosecuted  by  the  United  States.37 


362 


Stephane  Ojeda 


An  Article  5  tribunal  could  also  have  decided  that  an  individual  was  not  entitled 
to  POW  status.  In  that  scenario,  the  concerned  Taliban  fighter  would  then  be  pro- 
tected by  GC IV  as  a  detainee  or  internee38  (if  he  fulfilled  the  criteria  of  nationality 
found  in  Article  4,  GC  IV).39  A  person  protected  by  GC  IV  may  be  detained  until 
the  end  of  active  hostilities  unless  released  earlier  because  this  person  is  deemed  to 
no  longer  pose  a  security  threat.  He  maybe  deprived  of  certain  rights  and  privileges 
while  in  detention  (but  must  be  humanely  treated),  and  may  be  prosecuted  for  the 
mere  fact  of  having  taken  up  arms  under  the  domestic  law  of  the  United  States. 

For  the  individuals  who  did  not  fulfill  the  criteria  of  GC  III  or  GC  IV  to  benefit 
from  their  respective  protections,  they  would  still  benefit  from  the  rules  of  existing 
customary  IHL  as  reflected  in  CA340  and  Article  75,  AP  I,41  which  lay  down  funda- 
mental guarantees.  Thus,  there  is  no  category  of  persons  affected  by  or  involved  in 
international  armed  conflict  that  fall  outside  the  scope  of  IHL  protection. 

B.  Taliban  Captured  before  June  19, 2002  and  Still  Held  by  the  United  States 

Taliban  captured  during  the  period  of  the  international  armed  conflict  in  Afghani- 
stan and  still  in  the  power  of  the  United  States  are  not  held  in  Afghanistan  but  in 
Guantanamo.  With  the  end  of  the  international  armed  conflict,  GC  III  and  IV  no 
longer  provide  a  valid  legal  basis  for  continuing  to  hold,  without  charge,  persons 
captured  before  June  19,  2002.  Because  armed  hostilities  are  ongoing  in  Afghani- 
stan, it  would  not  be  realistic  to  require  that  every  person  held  by  the  United  States 
in  Guantanamo  who  is  not  facing  a  criminal  proceeding  be  released;  such  a  per- 
son might  still  constitute  a  security  threat  to  the  United  States  in  the  context  of 
the  ongoing  non-international  armed  conflict  in  Afghanistan.  The  United  States 
could,  therefore,  continue  to  hold  these  persons  for  the  same  reason(s)  that  it  cur- 
rently interns  persons  in  connection  with  the  non-international  armed  conflict  in 
Afghanistan  (see  Part  C  below).  As  GC  III  and  IV  no  longer  provide  a  legal  basis  for 
continuing  to  hold  them,  these  persons  should  be  placed  within  another  legal 
framework  to  regulate  their  internment,  including,  in  particular,  a  regular,  inde- 
pendent and  impartial  review  of  the  reasons  for  their  continued  deprivation  of 
liberty.42  In  its  June  2008  decision  concerning  those  held  at  Guantanamo,  the  US 
Supreme  Court  granted  internees  access  to  US  civilian  courts.43  This  access  would 
allow  the  concerned  individuals  to  benefit  from  judicial  supervision  of  the  law- 
fulness of  their  continued  deprivation  of  liberty.  Such  judicial  supervision  seems 
to  be  the  most  adequate  means  of  ensuring  a  genuine  independent  and  impartial 
review  process. 

Those  who  are  suspected  of  having  committed  war  crimes  or  other  criminal  of- 
fenses can  and  should  be  prosecuted.  Some  have  argued  that  the  US  federal  crimi- 
nal justice  system  has  proven  itself  highly  adequate  and  adaptable  to  the  challenges 

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US  Detention  of  Taliban  Fighters:  Some  Legal  Considerations 

of  prosecuting  complex  terrorism  cases,  while  the  possible  use  of  "new"  military 
commissions  on  US  soil  has  been  reported  in  the  media.44  But  whatever  system  is 
eventually  used,  those  prosecuted  must  be  afforded  essential  judicial  guarantees  such 
as  the  presumption  of  innocence,  the  right  to  be  tried  by  an  impartial  and  independ- 
ent tribunal,  the  right  to  effective  legal  counsel  and  the  exclusion  of  any  evidence  ob- 
tained as  a  result  of  torture  or  other  cruel,  inhumane  or  degrading  treatment. 

An  appropriate  approach  would  be  to  consider  that  these  persons  are  now  pro- 
tected by  CA3,  customary  rules  applicable  to  non-international  armed  conflict  and 
relevant  rules  of  human  rights  law  since  their  deprivation  of  liberty  is  no  longer 
linked  to  the  former  international  armed  conflict  but  rather  to  the  current  non- 
international  one.  From  an  analytical  perspective,  these  persons  would  be  viewed 
as  though  they  had  been  released  at  the  end  of  the  international  armed  conflict  and 
simultaneously  re-arrested  at  the  beginning  of  the  non-international  conflict,  with 
the  legitimacy  and  conditions  of  their  continued  detention  reevaluated  in  accor- 
dance with  this  approach. 

C.  Taliban  Captured  after  June  19, 2002  and  Still  Held  by  the  United  States 

Combatant  status,  which  entails  the  right  to  participate  directly  in  hostilities,  and 
POW  status  do  not  exist  in  non-international  armed  conflict,  such  as  the  one  that 
began  on  June  19,  2002  and  is  ongoing.  Therefore,  upon  capture  the  Taliban  do 
not,  as  a  matter  of  law,  enjoy  POW  status  and  may  be  prosecuted  by  US  authorities 
under  domestic  law  for  any  acts  of  violence  committed  during  the  conflict,  includ- 
ing, of  course,  war  crimes.  In  terms  of  IHL,  their  rights  and  treatment  during  de- 
tention are  governed  by  CA3  and  customary  rules  applicable  to  non-international 
armed  conflicts. 

Following  the  June  2006  Hamdan  decision,45  the  DoD  issued  a  memorandum 
requiring  all  DoD  personnel  to  adhere  to  the  standards  of  CA3  with  regard  to  the 
treatment  of  detainees  and  that  all  relevant  directives,  regulations,  policies,  prac- 
tices and  procedures  be  reviewed  "no  later  than  three  weeks  from  the  date  of  this 
memorandum"  in  order  to  comply  with  the  CA3  standards.46  In  January  2009  the 
Secretary  of  Defense  was  tasked  with  undertaking  a  review  of  the  conditions  of 
confinement  of  those  held  at  Guantanamo  to  ensure  they  meet  humane  standards, 
notably  those  required  by  CA3.47 

The  vast  majority  of  the  Taliban  captured  after  June  2002  are  held  in  Afghani- 
stan, but  almost  none  of  them  have  been  charged  with  any  crime.  Therefore,  they 
must  be  considered  as  internees.  As  for  those  interned  in  Guantanamo  (see  Part  II 
B  above),  a  wide  range  of  procedural  principles  and  safeguards  should  be  imple- 
mented by  the  US  detaining  authorities,  including  a  regular  independent  and  im- 
partial review  of  the  reasons  for  their  continued  deprivation  of  liberty. 

364 


Stephane  Ojeda 


One  particular  issue  that  needs  to  be  tackled  and  clarified  by  US  authorities  is 
the  legal  basis  for  their  internment  activities  at  Bagram  for  individuals  detained  by 
US  forces  operating  as  part  of  Operation  Enduring  Freedom.  Indeed,  there  is  no 
UN  Security  Council  resolution  (unlike  in  Iraq  until  December  31,  2008),  no 
agreement  with  the  Afghan  authorities  and  no  US  domestic  legislation  or  executive 
order  governing  this  type  of  deprivation  of  liberty.48 

While  internment  is  clearly  a  measure  that  can  be  taken  in  a  non- international 
armed  conflict,  as  evidenced  by  the  language  of  AP II,  which  mentions  internment 
in  Articles  5  and  6,49  CA3  contains  no  provisions  regulating  internment  apart  from 
the  requirement  of  humane  treatment.  Therefore,  reliance  on  international  hu- 
man rights  law  as  a  complementary  source  of  law  in  situations  of  non-international 
armed  conflict  is  necessary.  Moreover,  even  though  not  applicable  per  se,  the  prin- 
ciples and  rules  of  GC  IV  might  serve  as  guidance.50 

It  can  be  argued  that  the  basis  for  the  detention/internment  activities  of  US 
forces  assigned  to  the  International  Security  Assistance  Force  (ISAF)  can  be  found 
in  UN  Security  Council  Resolution  1386  of  December  20,  2001  and  subsequent 
resolutions.  Those  resolutions  authorize  the  ISAF  to  assist  Afghan  authorities  in 
the  maintenance  of  security  and  ISAF-participating  States  to  take  "all  necessary 
measures  to  fulfil  its  mandate."51  The  wording  "necessary  measures"  could  be  in- 
terpreted as  encompassing  deprivation  of  liberty  activities.  However,  this  wording 
remains  vague  and  definitely  needs  more  details  regarding  the  grounds  and  process 
governing  the  use  of  internment  as  a  form  of  deprivation  of  liberty. 

Conclusions 

In  the  aftermath  of  9/1 1,  the  armed  conflict  in  Afghanistan  has  raised  many  ques- 
tions concerning  the  application  of  IHL,  in  particular  with  regard  to  deprivation  of 
liberty.  Nothing  in  existing  IHL  prevents  US  authorities  from  capturing,  detaining 
or  interning  persons  in  the  fight  against  terrorism,  or  from  prosecuting  persons 
suspected  of  having  committed  criminal  offenses  when  appropriate.  Thus,  it  is  the 
author's  opinion  that,  if  properly  implemented,  the  existing  conventional  and  cus- 
tomary rules  of  IHL  adequately  address  most,  if  not  all,  of  these  questions.  Seven 
years  after  the  beginning  of  the  conflict,  and  on  the  verge  of  the  closure  of 
Guantanamo,  it  is  time  to  think  on  how  better  compliance  can  be  achieved.  The 
January  2009  White  House  executive  order  establishing  a  special  task  force  to  iden- 
tify "lawful  options  for  the  disposition  of  individuals  captured  or  apprehended  in 
connection  with  armed  conflicts  and  counterterrorism  operations"52  seems  to  be  a 
significant  step  in  the  right  direction. 


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US  Detention  of  Taliban  Fighters:  Some  Legal  Considerations 

Notes 

1 .  US  forces  have  been  deployed  in  Afghanistan  under  the  banner  of  Operation  Enduring 
Freedom  since  2001  and  under  the  NATO-led  International  Security  Assistance  Force  operation 
since  2002. 

2.  The  term  "IHL"  is  used  as  synonymous  with  the  "law  of  armed  conflict"  and  the  "laws 
and  customs  of  war." 

3.  It  is  not  the  aim  of  the  author  to  identify  and  attribute  specific  violations  that  may  have 
been  committed  by  the  parties  to  the  conflict. 

4.  See  Yoram  Dinstein,  Jus  in  Bello  Issues  Arising  in  the  Hostilities  in  Iraq  in  2003,  33  ISRAEL 

Yearbook  on  Human  Rights  2  (2003). 

5.  Convention  for  the  Amelioration  of  the  Condition  of  the  Wounded  and  Sick  in  Armed 
Forces  in  the  Field,  Aug.  12, 1949,  6  U.S.T.  31 14,  75  U.N.T.S.  31;  Convention  for  the  Ameliora- 
tion of  the  Condition  of  Wounded,  Sick  and  Shipwrecked  Members  of  Armed  Forces  at  Sea, 
Aug.  12, 1949, 6  U.S.T.  3217,  75  U.N.T.S.  85;  Convention  Relative  to  the  Treatment  of  Prisoners 
of  War,  Aug.  12, 1949, 6  U.S.T.  3316,  75  U.N.T.S.  135  [hereinafter  GC  III];  Convention  Relative 
to  the  Protection  of  Civilian  Persons  in  Time  of  War,  Aug.  12,  1949,  6  U.S.T.  3516,  75  U.N.T.S. 
287;  all  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR  (Adam  Roberts  &  Richard  Guelff  eds., 
3d  ed.  2000)  at  197,  222,  244  and  301,  respectively. 

6.  Protocol  Additional  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  International  Armed  Conflicts,  June  8, 1977, 1 125  U.N.T.S.  3  [hereinaf- 
ter AP  I];  Protocol  Additional  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  Non-International  Armed  Conflicts,  June  8,  1977,  1125  U.N.T.S.  609 
[hereinafter  AP  II];  both  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  5,  at  422 
and  483,  respectively. 

7.  See  Jean-Marie  Henckaerts,  Binding  Armed  Groups  Through  Humanitarian  Treaty  Law 
and  Customary  Law,  in  RELEVANCE  OF  INTERNATIONAL  HUMANITARIAN  LAW  TO  NON-STATE 
ACTORS  132  (Marc  Vuijlsteke,  Christine  Reh  &  Christopher  Reynolds  eds.,  2003),  available  at 
http://www.coleurop.be/content/publications/pdf/Collegium27.pdf;  Jean-Marie  Henckaerts, 
The  Conduct  of  Hostilities:  Target  Selection,  Proportionality,  and  Precautionary  Measures  under 
International  Humanitarian  Law,  in  PROTECTING  CIVILIANS  IN  2 1ST  CENTURY  WARFARE:  TAR- 
GET Selection,  Proportionality  and  Precautionary  Measures  in  Law  and  Practice 
1 1-12  (Mireille  Hector  &  Martine  Jellema  eds.,  2006). 

8.  See  President  George  W.  Bush,  Address  to  the  Nation  (Sept.  11, 2001 ),  available  at  http:// 
www.nationalcenter.org/BushGW91101Address.html. 

9.  Bagram  is  a  place  of  detention  located  on  the  US  military  base  in  the  ancient  city  of 
Bagram,  north  of  Kabul.  The  US  base  was  originally  built  and  used  by  the  Soviet  Union  during  its 
war  in  Afghanistan  in  1979-89.  The  detention  center  was  set  up  at  the  end  of  2001  and  was  used 
by  the  US  military  as  a  temporary  screening  facility  until  the  end  of  2004.  Detainees  were  either 
released,  or  sent  to  US  places  of  detention  at  Kandahar,  Afghanistan  or  at  Guantanamo  Bay,  Cuba. 

10.  For  a  list  of  US  detainee  transfers  to  and  from  Guantanamo,  see  http://www 
.globalsecurity.org/military/facility/guantanamo-bay_detainees.htm  (last  visited  Feb.  24, 2009). 

11.  See  Exec.  Order  No.  13492,  §  3,  74  Fed.  Reg.  4897  (Jan.  27,  2009)  (Review  and  Disposi- 
tion of  Individuals  Detained  at  the  Guantanamo  Bay  Naval  Base  and  Closure  of  Detention  Facil- 
ities) [hereinafter  White  House  Executive  Order]. 

12.  See  Eric  Schmitt,  Two  Prisons,  Similar  Issues  for  President,  NEW  YORK  TIMES,  Jan.  27, 
2009,  at  Al. 


366 


Stephane  Ojeda 


13.  While  not  of  direct  interest  for  this  article,  at  the  time  of  the  launching  of  the  coalition 
military  campaign,  years  of  armed  hostilities  in  Afghanistan  between  the  Northern  Alliance 
armed  group  and  the  Taliban  constituted  a  non-international  armed  conflict,  thus  were  subject 
to  the  rules  of  IHL. 

14.  Pakistan,  Saudi  Arabia  and  the  United  Arab  Emirates. 

15.  COMMENTARY  IV  RELATIVE  TO  THE  PROTECTION  OF  CIVILIAN  PERSONS  IN  TIME  OF 
WAR  20  (Jean  S.  Pictet  ed.,  1958). 

16.  Prosecutor  v.  Tadic,  Case  No.  IT-94- 1  -A,  Decision  on  Defence  Motion  for  Interlocutory 
Appeal  on  Jurisdiction,  |  70  (Oct.  2,  1995).  This  definition  has  been  adopted  by  other  interna- 
tional bodies  since  then. 

17.  See  AP  I,  supra  note  6,  arts.  48,  51,  53,  54,  57  &  58. 

18.  Regulations  Respecting  the  Laws  and  Customs  of  War  on  Land,  annex  to  Hague 
Convention  No.  IV  Respecting  the  Laws  and  Customs  of  War  on  Land,  Oct.  18,  1907,  36  Stat. 
2227,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  5,  at  69. 

19.  Legal  Consequences  of  the  Construction  of  a  Wall  in  the  Occupied  Palestinian  Territory, 
Advisory  Opinion,  2004  I.C.J.  136,  If  89  (July  9);  1  Trial  of  the  Major  War  Criminals  Before  the  Inter- 
national Military  Tribunal  at  Nuremberg,  14  November  1945-1  October  1946,  at  253-54  (1947). 

20.  See  ICRC  Opinion  Paper,  How  is  the  term  "armed  conflict"  defined  in  International  Hu- 
manitarian Law  (Mar.  2008),  http://www.icrc.org/web/eng/siteengO.nsf/htmlall/armed-conflict 
-article- 1 70308/$file/Opinion-paper-armed-conflict.pdf 

21.  For  more  information  on  customary  law  and  for  a  complete  description  of  the  rules  of 
IHL  applicable  in  non-international  armed  conflict  as  a  matter  of  customary  law,  see  the  ICRC 
study  on  customary  international  humanitarian  law.  JEAN-MARIE  HENCKAERTS  &  LOUISE 
Doswald-Beck,  Customary  International  Humanitarian  Law  (2005)  (2  volumes:  Vol- 
ume I,  Rules;  Volume  II,  Practice  (2  Parts)). 

22.  There  are  some  exceptions  such  as  Article  46  of  AP  I,  which  is  of  customary  nature.  It 
provides  that  combatants  who  engage  in  espionage  do  not  have  the  right  to  POW  status. 

23.  There  are  some  categories  of  persons  who  are  not  combatants  but  who  are  granted  POW 
status  (e.g.,  war  correspondents  as  provided  in  Article  4,  GC  III). 

24.  Commentary  III  Relative  to  the  Treatment  of  Prisoners  of  War  63  (Jean  S. 
Pictet  ed.,  1958)  [hereinafter  ICRC  COMMENTARY  III]. 

25.  Id.  at  59-61. 

26.  Whether  these  criteria  must  also  be  met  by  a  State's  regular  armed  forces  has  generated 
some  controversy  in  literature  with  arguments  based  on  textual  logic,  i.e.,  the  conditions  are  only 
mentioned  in  Article  4(A)(2)  and  not  in  Article  4(A)(1)  and  (3)  of  GC  III.  See,  e.g.,  George  H. 
Aldrich,  The  Taliban,  Al  Qaeda,  and  the  Determination  of  Illegal  Combatants,  96  AMERICAN 
JOURNAL  OF  INTERNATIONAL  LAW  895  (2002);  Yoram  Dinstein,  Unlawful  Combatancy,  32  IS- 
RAEL Yearbook  on  Human  Rights  255  (2002). 

27.  See  Memorandum  from  George  Bush  to  Vice  President  et  al.,  Humane  Treatment  of  Al 
Qaeda  and  Taliban  Detainees  (Feb.  7,  2002),  reprinted  in  THE  TORTURE  PAPERS:  THE  ROAD  TO 
ABU  GHRAIB  134  (Karen  J.  Greenberg  &  Joshua  Dratel  eds.,  2005);  Press  Release,  Office  of  the 
Press  Secretary,  White  House  Fact  Sheet:  Status  of  Detainees  at  Guantanamo  (Feb.  7,  2002), 
available  at  http://www.aiipowmia.com/wh/wh06_07feb02.html. 

28.  See,  e.g.,  Posting  of  John  B.  Bellinger,  Unlawful  Enemy  Combatants  (paras.  6  &  7  of  Jan. 
17,  2007  posting),  to  http://opiniojuris.org/author/john-bellinger/. 

29.  See  Rudiger  Wolfrum  &  Christiane  E.  Philipp,  The  Status  of  the  Taliban:  Their  Obliga- 
tions and  Rights  under  International  Law,  6  MAX  PLANCK  YEARBOOK  OF  UNITED  NATIONS  LAW 
559  (2002). 


367 


175  Detention  of  Taliban  Fighters:  Some  Legal  Considerations 

30.  Article  5(2)  of  GC  III  states  that 

[s]hould  any  doubt  arise  as  to  whether  persons  having  committed  a  belligerent  act  and 
having  fallen  into  the  hands  of  the  enemy  belong  to  any  of  the  categories  enumerated  in 
Article  4,  such  persons  shall  enjoy  the  protection  of  the  present  Convention  until  such 
time  as  their  status  has  been  determined  by  a  competent  tribunal. 

31.  ICRC  COMMENTARY  III,  supra  note  24,  at  77. 

32.  Rasul  v.  Bush,  542  U.S.  466  (2004). 

33.  See  Memorandum  from  the  Deputy  Secretary  of  Defense  to  the  Secretary  of  the  Navy, 
Order  Establishing  Combatant  Status  Review  Tribunal  (July  7,  2004),  available  at  http:// 
www.defenselink.mil/news/Jul2004/d20040707review.pdf. 

34.  See  Memorandum  from  the  Secretary  of  the  Navy  to  Distribution,  Implementation  of 
Combatant  Status  Review  Procedures  for  Enemy  Combatants  at  Guantanamo  Bay  Naval  Base, 
Cuba  (July  9,  2004),  available  at  http://www.dod.mil/news/Jul2004/d20040730comb.pdf. 

35.  See,  e.g.,  Brief  for  the  Respondents  at  50,  Boumediene  v.  Bush,  No.  06-1 195  (U.S.  Oct.  9, 
2007). 

36.  See  GC  III,  supra  note  5,  art.  118. 

37.  See  id.,  art.  102. 

38.  Internment  is  defined  as  the  deprivation  of  liberty  of  a  person  that  has  been  initiated/or- 
dered by  the  executive  branch,  not  the  judiciary,  without  criminal  charges  being  brought  against 
the  internee. 

39.  For  more  details,  see  Knut  Dormann,  The  Legal  Situation  of  "Unlawful/Unprivileged 
Combatants,"  85  INTERNATIONAL  REVIEW  OF  THE  RED  CROSS  45  (2003). 

40.  The  International  Court  of  Justice  recognized  the  customary  nature  of  CA3  not  only  in 
non-international  armed  conflict  but  also  in  the  event  of  international  armed  conflict.  Military 
and  Paramilitary  Activities  (Nicar.  v.  U.S.),  1986  I.C.J.  14  (June  27). 

4 1 .  See  Christopher  Greenwood,  International  Law  and  the  "War  Against  Terrorism, "  78  IN- 
TERNATIONAL Affairs  316  (2002). 

42.  For  an  elaboration  on  the  procedural  principles  and  safeguards  governing  internment,  see 
INTERNATIONAL  COMMITTEE  OF  THE  RED  CROSS,  IHL  AND  THE  CHALLENGES  OF  CONTEMPORARY 
ARMED  CONFLICTS  Annex  1  (2007),  available  at  http://www.icrc.org/Web/eng/siteengO.nsf/ 
htmlall/ihl-30-international-conference-101207/$File/IHL-challenges-30th-International 
-Conference-ENG.pdf  [hereinafter  ICRC  Report]. 

43.  Boumediene  v.  Bush,  553  U.S.  7  (2008). 

44.  See  Richard  B.  Zabel  &  James  J.  Benjamin,  Jr.,  Human  Rights  First,  In  Pursuit  of  Justice: 
Prosecuting  Terrorism  Cases  in  Federal  Court  (2008),  available  athttp://www.humanrightsfirst 
.info/pdf/08052  l-USLS-pursuit-justice.pdf.  See  also  Peter  Finn,  Obama  Set  to  Revive  Military 
Commissions,  Changes  Would  Boost  Detainee  Rights,  WASHINGTON  POST,  May  9,  2009. 

45.  Hamdan  v.  Rumsfeld,  548  U.S.  557  (2006). 

46.  Memorandum  from  the  Deputy  Secretary  of  Defense  to  the  Secretaries  of  the  Military 
Departments  et  al.,  Application  of  Common  Article  3  of  the  Geneva  Conventions  to  the  Treat- 
ment of  Detainees  in  the  Department  of  Defense  (July  7,  2006),  available  at  http://www.fas.org/ 
sgp/othergov/dod/geneva070606.pdf. 

47.  See  White  House  Executive  Order,  supra  note  1 1,  §  6.  See  the  outcome  of  this  review  in  Re- 
view of  Department  Compliance  with  President's  Executive  Order  on  Detainee  Conditions  of  Con- 
finement (2009),  available  at  htto://www.defenselink.mil/pubs/pdfs/REVIEW_OF_DEPARTMENT 
_COMPLIANCE_WITH_PRESIDENTS_EXECUTIVE_ORDER_ON_DETAINEE_CONDITIONS 
_OF_CONFINEMENTa.pdf. 


368 


Stephane  Ojeda 


48.  It  is  arguable  whether  the  Authorization  for  the  Use  of  Military  Force  (Pub.  L.  No.  107- 
40,  (codified  at  50  U.S.C.  §  1514),  which  authorizes  the  President  to  use  "all  necessary  and  ap- 
propriate force"  against  "nations,  organizations,  or  persons"  associated  with  9/11,  provides  an 
adequate  basis  for  US  detention  abroad.  In  this  regard,  see  Hamdi  v.  Rumsfeld,  542  U.S.  507 
(2004).  See  also  the  Respondents'  Memorandum  Regarding  the  Government's  Detention  Au- 
thority Relative  to  Detainees  Held  at  Guantanamo  Bay,  in  Re:  Guantanamo  Bay  Detainee  Litiga- 
tion, filed  by  the  US  Department  of  Justice  on  March  13,  2009.  At  the  time  this  is  written,  it  is 
unclear  whether  the  US  administration  would  rely  on  the  Authorization  for  the  Use  of  Military 
Force  authority  with  regard  to  detention  in  Afghanistan. 

49.  AP II,  supra  note  6,  art.  5(1)  ("the  following  provisions  shall  be  respected  as  a  minimum 
with  regards  to  persons  deprived  of  their  liberty  for  reasons  related  to  the  armed  conflict, 
whether  they  are  interned  or  detained");  id.,  art.  6(5)  ("At  the  end  of  hostilities,  the  authorities  in 
power  shall  endeavour  to  grant  the  broadest  possible  amnesty  to  persons  who  have  participated 
in  the  armed  conflict,  or  those  deprived  of  liberty  for  reasons  related  to  the  armed  conflict, 
whether  they  are  interned  or  detained"). 

50.  For  more  details,  see  ICRC  Report,  supra  note  42. 

51.  S.C.  Res.  1386,  If  3,  U.N.  Doc.  S/RES/1386  (Dec.  20,  2001). 

52.  Exec.  Order  No.  13493,  §  1,  74  Fed.  Reg.  4901  (Jan.  27, 2009)  (Review  of  Detention  Pol- 
icy Options). 


369 


XIV 


Rationales  for  Detention:  Security  Threats 
and  Intelligence  Value 

Ryan  Goodman* 


In  the  armed  conflict  with  Al  Qaeda  inside  and  outside  Afghanistan,1  the  US 
government  has  had  to  grapple  with  difficult  legal  issues  concerning  who  can 
be  detained.  In  this  brief  essay,  I  discuss  whether  US  practices  have  been  consistent 
with  the  law  of  armed  conflict  (LOAC).  Three  specific  issues  are  considered.  The 
first  is  a  threshold  question:  Does  LOAC  regulate  who  can  be  detained  in  a  non- 
international  armed  conflict?  After  concluding  that  it  does,  I  address  two  questions 
that  implicate  the  substantive  criteria  for  detention.  First,  is  it  lawful  to  detain  civil- 
ians who  have  not  directly  participated  in  hostilities?  Second,  is  it  lawful  to  detain 
individuals  for  a  long  or  indefinite  period  for  the  purpose  of  gathering  intelligence? 
Since  September  11,  the  US  government  has  adjusted  its  detention  practices  to 
overcome  various  legal  defects.  These  three  issues  remain  among  the  fundamental 
challenges  to  the  detention  regime. 

It  is  not  obvious  that  LOAC  regulates  the  substantive  grounds  for  detention  in 
non-international  armed  conflict.  Neither  Common  Article  3  nor  Additional  Pro- 
tocol II  explicitly  addresses  the  subject.  They  contain  no  language  expressly  pro- 
hibiting arbitrary  detention  or  unlawful  confinement.  Similarly,  the  Rome  Statute 
for  the  International  Criminal  Court  includes  "unlawful  confinement"  in  a  list  of 


*  Rita  E.  Hauser  Professor  of  Human  Rights  and  Humanitarian  Law,  Harvard  Law  School. 


Rationales  for  Detention:  Security  Threats  and  Intelligence  Value 

war  crimes  in  international  armed  conflict.2  Unlawful  confinement,  however,  is 
conspicuously  absent  from  the  Statute's  list  of  war  crimes  in  non-international 
armed  conflict.  Additionally,  a  2004  expert  meeting — which  included  Louise 
Doswald-Beck,  Knut  Dormann,  Robert  Goldman,  Walter  Kalin,  Judge  Theodore 
Meron,  Sir  Nigel  Rodley  and  Jelena  Pejic — concludes  that  LOAC  does  not  contain 
rules  precluding  unlawful  confinement  in  non-international  armed  conflicts: 

Non-International  Armed  Conflicts 

The  experts  noted  that  there  are  no  provisions  requiring  certain  reasons  for  detention, 
nor  any  procedures  to  prevent  unnecessary  detention.  It  was  further  observed  that 
there  are  no  specific  supervisory  mechanisms  other  than  the  minimal  requirement  that 
the  ICRC  [International  Committee  of  the  Red  Cross]  be  allowed  to  offer  its  services.  It 
was  stated,  therefore,  that  only  national  law  is  relevant,  as  well  as  international  human 
rights  law-3 

Some  legal  advisers  at  the  International  Committee  of  the  Red  Cross  (ICRC) 
have  helped  support  this  view.  A  presentation  at  the  2004  meeting  by  Dormann, 
Deputy  Head  of  the  Legal  Division  of  the  ICRC,  states:  "International  humanitar- 
ian law  applicable  to  non-international  armed  conflicts  contains  no  provisions  re- 
quiring certain  grounds  for  detention/internment  nor  are  there  any  procedures 
defined  to  check  the  need  for  such  detention."4  An  important  article  in  the  Interna- 
tional Review  of  the  Red  Cross  by  Jelena  Pejic,  Legal  Adviser  in  the  ICRC  Legal  Divi- 
sion, is  more  equivocal.  She  states: 

In  non-international  armed  conflicts  there  is  even  less  clarity  as  to  how  administrative 
detention  is  to  be  organized.  Article  3  common  to  the  Geneva  Conventions,  which  is 
applicable  as  a  minimum  standard  to  all  non-international  armed  conflicts,  contains 
no  provisions  regulating  internment,  i.e.  administrative  detention  for  security  reasons, 
apart  from  the  requirement  of  humane  treatment.5 

Pejic  does  not  elaborate  whether  or  to  what  extent  the  requirement  of  humane 
treatment  might  directly  regulate  the  use  of  security  rationales  or  other  grounds  for 
confinement. 

Many  of  these  experts  find  some  solace  in  the  notion  that  gaps  in  LOAC  are  in- 
tolerable (else  a  legal  black  hole)  and  that  those  gaps  would  be  filled  by  interna- 
tional human  rights  law.  The  2004  expert  meeting,  in  which  Pejic,  Dormann  and 
others  participated,  concludes: 

The  experts  stated  that  as  IHL  does  not  provide  procedural  guarantees  to  persons 
detained  during  non-international  armed  conflict,  human  rights  standards  must 
always  apply ....  The  general  view  was  that  instead  of  trying  to  amend  humanitarian 

372 


Ryan  Goodman 


law  to  remedy  its  failings,  the  standards  applicable  to  non-international  armed  conflict 
should  be  those  of  human  rights  law  and  subject  to  human  rights  remedies.6 

International  human  rights  law,  however,  is  not  accorded  the  same  legal  (or  sym- 
bolic) weight  in  US  law  and  practice  as  the  Geneva  Conventions  or  customary  in- 
ternational humanitarian  law.  Hence,  the  exclusion  of  LOAC  from  this  domain 
would  leave  a  substantial  void  in  the  definition  and  regulation  of  impermissible 
behavior. 

According  to  the  weight  of  legal  authority,  however,  no  such  gap  exists.  Unlaw- 
ful confinement  is  prohibited  by  Common  Article  3  (e.g.,  as  a  form  of  inhumane 
treatment)  and  by  customary  international  humanitarian  law.  Under  the  frame- 
work set  forth  in  Common  Article  3,  the  power  to  detain  is  subject  to  a  number  of 
substantive  constraints.  First,  individuals  cannot  be  detained  on  discriminatory 
grounds  such  as  "race,  color,  religion  or  faith,  sex,  birth  or  wealth,  or  any  other 
similar  criteria."7  Second,  parties  to  a  conflict  are  prohibited  from  taking  hostages. 
According  to  the  ICRC  Commentary,  that  prohibition  is  based  on  a  fundamental 
principle  of  justice: 

The  taking  of  hostages,  like  reprisals,  to  which  it  is  often  the  prelude,  is  contrary  to  the 
modern  idea  of  justice  in  that  it  is  based  on  the  principle  of  collective  responsibility  for 
crime.  Both  strike  at  persons  who  are  innocent  of  the  crime  which  it  is  intended  to 
prevent  or  punish.8 

In  other  words,  if  a  person  does  not  bear  individual  responsibility  for  a  security 
threat  to  the  State,  he  should  not  be  deprived  of  his  liberty,  even  if  confining  him 
could  prevent  the  threat  from  materializing.  Third,  Common  Article  3  prohibits 
the  passing  of  a  sentence  without  affording  fundamental  judicial  guarantees,  and 
that  provision  implicitly  restricts  the  use  of  administrative  detention  for  punitive 
purposes. 

More  generally,  unlawful  confinement  is  prohibited  by  a  broad-based  obliga- 
tion under  Common  Article  3:  hors  de  combat  "shall  in  all  circumstances  be  treated 
humanely."9  Indeed,  the  recent  2005  ICRC  study  on  customary  international  hu- 
manitarian law  states  that,  as  a  matter  of  treaty  law,  "arbitrary  deprivation  of  liberty 
is  not  compatible"  with  humane  treatment  under  Common  Article  3.10  Joanna 
Dingwall  argues  persuasively  that  Common  Article  3  prohibits  unlawful  confine- 
ment as  a  form  of  "cruel  treatment."11  And,  the  overriding  obligation  of  humane 
treatment  is  even  more  clearly  and  directly  connected  to  the  sources  that  Dingwall 
invokes.12  As  an  analytic  matter,  these  interpretations  of  humane  treatment  are  not 
precluded  by  the  existence  of  text  explicitly  prohibiting  unlawful  confine- 
ment in  international  conflicts,  but  the  absence  of  text  referring  to  unlawful 

373 


Rationales  for  Detention:  Security  Threats  and  Intelligence  Value 

confinement  in  Common  Article  3.  Rape  is  not  explicitly  prohibited  by  Common 
Article  3  either;  yet  it  is  well  understood  that  rape  is  covered  by  the  article.13  The 
protections  codified  in  Common  Article  3  are  simply  written  in  broader  terms. 

International  authorities  also  suggest  that  unlawful  confinement  is  prohibited 
in  non-international  armed  conflict  as  a  matter  of  customary  international  law.  In 
considering  the  practices  of  armed  opposition  groups  in  Colombia's  civil  war,  the 
Inter- American  Commission  on  Human  Rights  stated:  "International  humanitar- 
ian law  also  prohibits  the  detention  or  internment  of  civilians  except  where  neces- 
sary for  imperative  reasons  of  security."14  Liesbeth  Zegveld  also  reports  that  the 
UN  Commission  on  Human  Rights  drew  from  international  humanitarian  law  ap- 
plicable to  international  armed  conflicts  in  demanding  armed  opposition  groups 
refrain  from  arbitrary  detention  in  Afghanistan  (1993)  and  in  the  Sudan  (1995).15 
In  addition,  Article  3  of  the  Turku  Declaration  of  Minimum  Humanitarian  Stan- 
dards proscribes  the  disappearance  of  individuals,  "including  their  abduction  or 
unacknowledged  detention."16  And  Article  11  of  the  Turku  Declaration  includes 
an  implicit  restriction  on  substantive  grounds  for  detention:  "If  it  is  considered 
necessary  for  imperative  reasons  of  security  to  subject  any  person  to  assigned  resi- 
dence, internment  or  administrative  detention,  such  decisions  shall  be  subject  to  a 
regular  procedure  prescribed  by  law  . . .  .",7 

Once  the  question  whether  LOAC  prohibits  arbitrary  detention  is  resolved  in 
the  affirmative,  a  second-order  question  is  whether  LOAC  permits  the  administra- 
tive detention  of  civilians,  including  civilians  who  do  not  directly  participate  in 
hostilities.18  That  question  has  arisen  in  recent  litigation,  and  federal  judges  have 
been  divided  on  the  issue.19  The  Fourth  Geneva  Convention  rules  on  internment 
are  the  most  directly  relevant  in  this  regard.20  And,  in  accordance  with  Articles  5, 
27,  41-43  and  78  of  the  Civilians  Convention,  States  are  permitted  to  detain  not 
only  civilians  who  directly  participate  in  hostilities  (e.g.,  unlawful  combatants)  but 
also  civilians  whose  indirect  participation  in  hostilities  poses  a  security  threat.  At 
first  blush,  US  practices  in  the  conflict  with  Al  Qaeda  do  not  necessitate  making 
such  distinctions.  The  US  government  has  formally  claimed  the  authority,  in 
legislation21  and  in  executive  action,22  to  detain  only  "unlawful  combatants."  How- 
ever, the  government's  peculiar  definition  of  "combatants"  and  its  actual  deten- 
tion decisions  betray  a  contrary  policy  of  detaining  civilians  who  have,  at  most, 
indirectly  participated  in  hostilities.23 

Although  LOAC  does  not  forbid  the  detention  of  this  broader  class  of  civilians, 
domestic  law  might.  For  example,  an  important  constitutional  distinction  may  ex- 
ist with  respect  to  classes  of  individuals  who  can  be  subject  to  military  jurisdiction. 
The  constitutional  line  may  be  drawn  between  "combatants"  (including  direct 
participants  in  hostilities)  and  civilians,  and  LOAC  should  help  define  the 

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Ryan  Goodman 


boundaries  of  those  groups  for  constitutional  purposes.  Indeed,  if  the  government 
wishes  to  detain  individuals  in  the  latter  group,  it  maybe  required  to  adopt  laws  ex- 
plicitly subjecting  "civilians"  to  detention.  The  basis  for  that  clear  statement  rule 
would  derive  from  domestic  law,  however,  and  not  LOAC  itself. 

A  remaining  question  is  whether  the  United  States  can  detain  individuals,  on  a 
long-term  or  indefinite  basis,  for  the  purpose  of  gathering  intelligence.  Before  ana- 
lyzing that  question  of  law,  first  consider  the  record  of  US  detention  practices  fol- 
lowing September  11.  The  government  has  used  intelligence  value  as  a  ground  for 
initial  internment  decisions,  as  well  as  for  denying  release.  Former  Deputy  Assis- 
tant Secretary  of  Defense  for  Detainee  Affairs  Professor  Matthew  Waxman  recently 
wrote:  "Intelligence  gathering  through  questioning  of  those  in  custody  constitutes 
another  important  reason  for  detention  in  warfare,  and  especially  in  fighting  ter- 
rorist networks."24  With  respect  to  the  global  sphere  of  operations,  the  2006  Coun- 
terinsurgency  Field  Manual  states  that  information  gathering  provides  a  reason  for 
detaining  two  classes  of  individuals:  (1)  "persons  who  have  engaged  in,  or  assisted 
those  who  engage  in,  terrorist  or  insurgent  activities"  and  (2)  "persons  who  have 
incidentally  obtained  knowledge  regarding  insurgent  and  terrorist  activity,  but 
who  are  not  guilty  of  associating  with  such  groups."25  Notably,  information  gath- 
ering appears  to  be  an  independent  basis  for  detaining  the  first  category  of  individ- 
uals even  if  they  no  longer  pose  a  security  threat.26  However,  for  the  second 
category,  the  Counterinsurgency  manual  states:  "Since  persons  in  the  second  cate- 
gory have  not  engaged  in  criminal  or  insurgent  activities,  they  must  be  released, 
even  if  they  refuse  to  provide  information."27  It  stands  to  reason  that  individuals  in 
the  first  category  could  be  denied  release  if  they  refuse  to  provide  information.  As 
another  component  of  global  operations,  President  George  Bush  announced  that 
under  the  CIA's  secret  detention  program  "[m]any  are  released  after  questioning, 
or  turned  over  to  local  authorities — if  we  determine  that  they  do  not  pose  a  contin- 
uing threat  and  no  longer  have  significant  intelligence  value."28 

With  respect  to  detention  in  Guantanamo  specifically,  in  determining  whether 
a  detainee  should  be  transferred  to  the  base,  US  military  screening  teams  and  the 
combatant  commander  must  consider  "the  possible  intelligence  that  may  be 
gained  from  the  detainee."29  And  administrative  review  boards  (ARB)  may  con- 
sider whether  a  detainee  "is  of  continuing  intelligence  value"  in  deciding  whether 
to  recommend  release.30  That  standard  appears  to  regularize  practices  that  pre- 
dated the  ARB  process.31  Although  stated  in  a  summary  fashion,  a  joint  report  by 
UN  human  rights  officials  concerning  Guantanamo  concludes  "that  the  objective 
of  the  ongoing  detention  is  not  primarily  to  prevent  combatants  from  taking  up 
arms  against  the  United  States  again,  but  to  obtain  information  and  gather  intelli- 
gence on  the  Al-Qaeda  network."32 

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Rationales  for  Detention:  Security  Threats  and  Intelligence  Value 

Within  the  United  States,  the  cases  of  individuals  such  as  Jose  Padilla  and  Ali 
Saleh  Kahlah  al-Marri  suggest  that  intelligence  value  may  constitute  a  dominant 
rationale  for  detention.  In  Padilla's  case,  the  Solicitor  General  argued  before  the 
Supreme  Court  that  "[t]he  detention  of  enemy  combatants  serves  two  vital  pur- 
poses directly  connected  to  prosecuting  the  war.  First,  detention  prevents  captured 
combatants  from  rejoining  the  enemy  and  continuing  the  fight.  Second,  detention 
enables  the  military  to  gather  critical  intelligence  from  captured  combatants  con- 
cerning the  capabilities  and  intentions  of  the  enemy."33  For  the  latter  proposition, 
the  Solicitor  General  cited  and  included,  as  an  appendix  to  his  brief,  a  declaration 
by  Vice  Admiral  Lowell  Jacoby,  Director  of  the  Defense  Intelligence  Agency.34  The 
Jacoby  Declaration  focuses  on  the  need  to  obtain  information  from  the  detainee  as 
the  basis  for  military  confinement  outside  of  the  criminal  justice  system.35  In  al- 
Marri's  case,  federal  judges  expressed  concern  over  the  apparent  interrogation- 
based  reasons  for  transferring  the  petitioner  from  criminal  jurisdiction  to  military 
administrative  detention: 

[N]ot  only  has  the  Government  offered  no  other  explanation  [than  interrogation 
purposes]  for  abandoning  al-Marri's  prosecution,  it  has  even  propounded  an  affidavit 
in  support  of  al-Marri's  continued  military  detention,  stating  that  he  "possesses 
information  of  high  intelligence  value."  See  Rapp.  Declaration.  Moreover,  former 
Attorney  General  John  Ashcroft  has  explained  that  the  Government  decided  to  declare 
al-Marri  an  enemy  combatant  only  after  he  became  a  "hard  case"  by  "reject  [ing] 
numerous  offers  to  improve  his  lot  by  .  .  .  providing  information."  John  Ashcroft, 
Never  Again:  Securing  America  and  Restoring  Justice  168-69  (2006).36 

Professor  Marty  Lederman,  a  leading  expert  on  US  detention  policy  since  September 
11,  summarizes  his  view  of  the  overall  scheme:  "Unlike  in  past  conflicts,  when  the 
purpose  of  detention  was  incapacitation  of  actual  combatants  so  that  they  could  not 
fight  against  us,  the  dominant  purpose  of  this  detention  regime  is  intelligence- 
gathering."37 

It  is  important  to  recognize  that  intelligence  value  has  also  constituted  an  inde- 
pendent basis  for  administrative  detention  in  Iraq.38  Consider  Lieutenant  Andru 
Wall's  account  of  detainee  operations: 

Officially,  individuals  could  be  detained  for  their  intelligence  value  for  no  more  than  72 
hours;  however,  anecdotal  evidence  suggested  that  longer  intelligence  detentions  were 
common.  The  argument  in  favor  of  intelligence  detentions  was  that,  for  example,  if  an 
individual  knew  who  was  responsible  for  carrying  out  attacks  on  Coalition  Forces  . . . 
then  withholding  [this  information]  constituted  an  imperative  threat  to  the  security  of 
Coalition  Forces  ....  The  argument  against  such  detentions  was  that  the  individual 
himself  did  not  pose  an  imperative  security  threat . . .  .39 

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Ryan  Goodman 


Other  reports  also  find  that  intelligence  value  constituted  a — formal  and  infor- 
mal— ground  for  detention  in  Iraq.40 

Three  arguments  might  be  raised  to  support  the  legality  of  US  practice.  First,  the 
Geneva  Conventions  contain  no  express  prohibition  on  the  use  of  detention  for 
intelligence-gathering  purposes.  Second,  detention  is  permitted  if  obtaining  the 
relevant  information  serves  an  imperative  security  interest.  Third,  if  a  State  has  the 
authority  to  detain  an  individual  until  the  cessation  of  hostilities,  the  State  has  the 
prerogative  to  release  her  earlier  if  she  provides  valuable  intelligence  information. 

At  the  outset  in  addressing  these  arguments  we  should  note  that  an  express  pro- 
vision of  the  Geneva  Conventions  may  not  be  necessary  if  the  regime  implicitly 
contemplates  that  the  only  basis  for  detention  is  to  prevent  individuals  returning  to 
the  fight.  A  customary  norm  may  also  suffice  if  treaties  do  not.  And,  even  if  LOAC 
permits  interrogation  incidental  to  detention,  it  does  not  necessarily  permit  deten- 
tion for  the  purpose  of  interrogation.  Nor  does  it  permit  coercive  interrogation. 
Let's  turn  to  an  elaboration  of  some  of  these  points  and  other  points  as  well. 

First,  all  three  arguments  are  contradicted  by  legal  authorities  that  have  ad- 
dressed the  subject  with  respect  to  the  general  LOAC  regime.  The  ICRC  publicly 
criticized  the  use  of  Guantanamo  for  interrogation  purposes.41  The  joint  report  of 
UN  officials  declared:  "The  indefinite  detention  of  prisoners  of  war  and  civilian  in- 
ternees for  purposes  of  continued  interrogation  is  inconsistent  with  the  provisions 
of  the  Geneva  Conventions."42  And  a  plurality  of  the  US  Supreme  Court  stated  in 
dicta:  "Certainly,  we  agree  that  indefinite  detention  for  the  purpose  of  interroga- 
tion is  not  authorized."43  Some  commentators  have  suggested  that  the  plurality's 
statement  is  conclusory  and  without  citation  to  legal  authority.  However,  in  earlier 
passages,  the  opinion  references  authorities  suggesting  that  detention  is  permitted 
exclusively  to  prevent  individuals  returning  to  the  battlefield.44  US  policy,  accord- 
ingly, contradicts  the  collective  judgment  of  the  US  Supreme  Court  (in  a  plurality 
opinion),  the  ICRC  and  UN  human  rights  officials. 

Second,  other  provisions  of  the  Geneva  Conventions  indirectly  support  the 
conclusion  that  indefinite  or  long-term  detention  is  permitted  only  to  prevent  in- 
dividuals returning  to  the  battlefield.  In  general,  detaining  powers  argue  against 
early  release  of  prisoners  of  war  on  the  ground  that  the  individuals  might  return  to 
the  fight.  However,  some  detainees  are  too  sick  or  wounded  to  return  to  the  battle- 
field.45 A  valuable  question  for  our  purposes  is  whether  the  detaining  power  could 
nevertheless  hold  the  individual  to  gather  intelligence.  The  Prisoner  of  War 
(POW)  Convention  is  clear;  it  places  a  categorical  obligation  to  repatriate  such  in- 
dividuals to  their  home  countries.46  There  is  no  exception  for  detaining  or  preclud- 
ing release  of  individuals  on  any  other  grounds  such  as  intelligence  value. 


377 


Rationales  for  Detention:  Security  Threats  and  Intelligence  Value 

Third,  the  most  relevant  rules  may  not  be  found  directly  in  provisions  regulat- 
ing detention.  The  most  relevant  source  may  be  found  in  rules  governing  interro- 
gation. And  those  interrogation  rules  preclude  the  initial  decision  to  detain  an 
individual,  as  well  as  the  purported  prerogative  to  order  release  of  a  detainee  who 
provides  information.  More  specifically,  the  use  of  intelligence  value  violates  Arti- 
cle 17  of  the  POW  Convention  and  Article  31  of  the  Civilians  Convention.  Both  ar- 
ticles strictly  prohibit  physical  and  moral  coercion  to  obtain  information  from 
detainees.47  Accordingly,  individuals  who  are  interrogated  should  not  receive 
better  treatment  (release  from  detention)  or  worse  treatment  (continued  confine- 
ment) on  the  basis  of  whether  they  provide  or  withhold  information.  In  short,  the 
relevant  LOAC  rules  are  found  more  directly  in  provisions  regulating  methods  of 
interrogations,  rather  than  provisions  regulating  grounds  for  detention.  Notably, 
the  former  constitutes  an  independent  basis  for  the  application  of  LOAC  in  non- 
international  armed  conflicts.  That  is,  even  if  LOAC  does  not  regulate  unlawful 
confinement  in  non-international  armed  conflict,  it  undoubtedly  regulates  coer- 
cive interrogations. 

Fourth,  an  individual's  possession  of  information  does  not  constitute  a  valid  se- 
curity rationale  for  internment  under  the  Civilians  Convention.  According  to  the 
ICRC  Commentary,  States  have  significant  discretion  to  define  activities  that 
threaten  their  security.48  The  Commentary,  however,  also  suggests  that  the  individ- 
uals must  themselves  directly  pose  the  threat.  The  paradigmatic  examples  provided 
by  the  Commentary  include  "[sjubversive  activity  carried  on  inside  the  territory  of 
a  Party  to  the  conflict  or  actions  which  are  of  direct  assistance  to  an  enemy 
Power."49  More  specific  examples  include  "members  of  organizations  whose  ob- 
ject is  to  cause  disturbances,  or . . .  [individuals  who]  may  seriously  prejudice  its  se- 
curity by  other  means,  such  as  sabotage  or  espionage."50  Moreover,  as  described 
above,  various  authorities,  including  the  ICRC,  UN  human  rights  officials  and  the 
Supreme  Court,  have  repudiated  intelligence-based  grounds  for  detention.  Those 
rejections  were  absolute  and  were  issued  in  the  context  of  security-based  reasons 
for  gathering  intelligence. 

Finally,  the  implications  of  allowing  intelligence  value  as  an  independent 
ground  for  long-term  or  indefinite  detention  are  intolerable.  Doing  so  might  per- 
mit the  confinement  of  individuals,  such  as  the  children  or  other  family  members 
of  combatants,  who  have  no  engagement  in  hostilities  but  have  personal  knowl- 
edge about  the  combatants.  It  might  also  permit  the  confinement  of  innocent  de- 
tainees who  do  not  have  information  themselves  but  are  held  as  bargaining  chips  to 
coerce  other  individuals  to  provide  information.  And,  a  further  implication  is  sug- 
gested by  the  declaration  of  Admiral  Jacoby.  He  contends  that  "the  intelligence  cy- 
cle is  continuous.  This  dynamic  is  especially  important  in  the  War  on  Terrorism. 

378 


Ryan  Goodman 


There  is  a  constant  need  to  ask  detainees  new  lines  of  questions  as  additional  de- 
tainees are  taken  into  custody  and  new  information  is  obtained  from  them  and 
from  other  intelligence-gathering  methods."51  That  justification  essentially  pro- 
vides for  continuing  to  hold  individuals  even  if  they  have  exhausted  their  current 
intelligence  value.  In  sum,  it  is  not  too  much  of  a  stretch  to  suggest  that  "detaining 
individuals  on  the  basis  of  what  they  were  believed  to  know  could  be  a  slippery 
slope  leading  to  mass,  unwarranted  detentions."52 

Since  September  11,  the  United  States  has  adjusted  its  detention  practices  in  re- 
sponse to  powerful  objections.  Some  of  the  remaining  objections  are  valid  and  oth- 
ers not.  As  a  threshold  matter,  an  important  point  is  that  the  laws  of  war  prohibit 
unlawful  confinement  in  non-international  armed  conflict.  The  Obama  adminis- 
tration provides  a  new  opportunity  to  reassess  detention  policy  through  that  legal 
framework. 

Notes 

1 .  I  work  with  the  assumption  that  since  September  1 1 ,  200 1 ,  the  United  States  has  been  en- 
gaged in  an  armed  conflict  with  Al  Qaeda — a  proposition  that  all  three  branches  of  the  US  gov- 
ernment now  accept.  See,  e.g.,  Hamdan  v.  Rumsfeld,  548  U.S.  557,  630-31  (2006); 
Memorandum  from  Gordon  England,  Deputy  Secretary  of  Defense,  to  the  Secretaries  of  the 
Military  Departments  et  al.,  Application  of  Common  Article  3  of  the  Geneva  Conventions 
to  the  Treatment  of  Detainees  in  the  Department  of  Defense  (July  7,  2006),  http:// 
www.defenselink.mil/home/dodupdate/For-the-record/documents/200607 1 1  .html;  Military 
Commissions  Act  of  2006  §  948a(l),  Pub.  L.  No.  109-366,  120  Stat.  2600  (Oct.  17,  2006)  (codi- 
fied in  10  USC  47(A)).  See  also  Derek  Jinks,  September  1 1  and  the  Laws  of  War,  28  YALE  JOURNAL 
of  International  Law  l  (2003). 

2.  Statute  of  the  International  Criminal  Court  art.  8,  July  17,  1998,  2187  U.N.T.S.  90. 

3.  Expert  Meeting  on  the  Supervision  of  the  Lawfulness  of  Detention  during 
ARMED  CONFLICT  17  (The  Graduate  Institute  of  International  Studies,  2004),  available  at  http:// 
www.ruig-gian.org/ressources/communication_colloque_rapport04.pdf  [hereinafter  2004  Ex- 
pert Meeting], 

4.  Id.  at  15. 

5.  Jelena  Pejic,  Procedural  Principles  and  Safeguards  for  Internment/Administrative  Deten- 
tion in  Armed  Conflict  and  Other  Situations  of  Violence,  858  INTERNATIONAL  REVIEW  OF  THE  RED 

Cross  375  (2005). 

6.  2004  Expert  Meeting,  supra  note  3,  at  41. 

7.  Convention  Relative  to  the  Protection  of  Civilian  Persons  in  Time  of  War  art.  3(1),  Aug. 
12,  1949,  6  U.S.T.  3516,  75  U.N.T.S.  287,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR  301 
(Adam  Roberts  &  Richard  Guelff  eds.,  3d  ed.  2000)  [hereinafter  Civilians  Convention]. 

8.  COMMENTARY:  IV  GENEVA  CONVENTION  RELATIVE  TO  THE  TREATMENT  OF  CIVILIANS 
IN  TIME  OF  WAR  39  (Jean  S.  Pictet  ed.,  1958)  [hereinafter  ICRC  COMMENTARY  IV]. 

9.  Civilians  Convention,  supra  note  7,  art.  3(1). 

10.  I  CUSTOMARY  INTERNATIONAL  HUMANITARIAN  LAW  344  (Jean-Marie  Henckaerts  & 
Louise  Doswald-Beck  eds.,  2005);  cf.  James  G.  Stewart,  Rethinking  Guantdnamo:  Unlawful 


379 


Rationales  for  Detention:  Security  Threats  and  Intelligence  Value 

Confinement  as  Applied  in  International  Criminal  Law,  4  JOURNAL  OF  INTERNATIONAL 
CRIMINAL  JUSTICE  12  (2006);  ICRC,  US  Detention  Related  to  the  Events  ofl  1  September  2001  and 
Its  Aftermath — The  Role  of  the  ICRC,  July  30,  2008,  http://www.icrc.org/web/eng/siteengO.nsf/ 
htmlall/usa-detention-update-121205?opendocument  [hereinafter  Role  of  the  ICRC]. 

11.  Joanna  Dingwall,  Unlawful  Confinement  as  a  War  Crime:  The  Jurisprudence  of  the  Yugo- 
slav Tribunal  and  the  Common  Core  of  International  Humanitarian  Law  Applicable  to  Contempo- 
rary Armed  Conflicts,  9  JOURNAL  OF  CONFLICT  AND  SECURITY  LAW  133  (2004). 

12.  Id.  For  an  argument  that  Article  5  of  the  Civilians  Convention  provides  evidence  that 
"humane  treatment"  includes  a  prohibition  on  unlawful  confinement,  see  DEREK  JINKS,  THE 
Rules  of  War:  The  Geneva  Conventions  in  the  Age  of  Terror  (forthcoming  2009). 

13.  Dingwall,  supra  note  1 1,  at  159. 

14.  Inter- American  Commission  on  Human  Rights,  Third  Special  Report  on  the  Human 
Rights  Situation  in  Colombia,  OEA/Ser.L/V/II.102,  Doc.  9,  rev.  1  (1999),  1 122;  id.,  If  U  128-29 
("The  Commission  notes  that  the  vast  majority  of  these  detentions  relating  to  the  election  boy- 
cott constituted  breaches  of  international  humanitarian  law.  The  armed  dissident  groups  repeat- 
edly captured  and  held  civilians,  although  they  did  not  pose  any  direct  threat  to  the  military 
operations  of  the  guerrillas Armed  dissident  groups  are  also  responsible  for  arbitrary  depri- 
vations of  liberty  carried  out  against  civilians,  outside  of  the  context  of  the  elections."). 

15.  See  LIESBETH  ZEGVELD,  THE  ACCOUNTABILITY  OF  ARMED  OPPOSITION  GROUPS  IN  IN- 
TERNATIONAL LAW  65-66  (2002);  see  also  I  CUSTOMARY  INTERNATIONAL  HUMANITARIAN  LAW, 
supra  note  10,  at  348-49. 

16.  Turku  Declaration,  art.  3,  U.N.  Doc.  E/CN.4/Sub.2/1991/55  (1990). 

17.  Id.,  art.  11. 

18.  See  Ryan  Goodman,  The  Detention  of  Civilians  in  Armed  Conflict,  103  AMERICAN  JOUR- 
NAL OF  INTERNATIONAL  LAW  48  (2009). 

19.  See,  e.g.,  al-Marri  v.  Pucciarelli,  534  F.3d  213  (4th  Cir.  2008)  (en  banc),  cert,  granted,  77 
U.S.L.W.  3148  (U.S.  Dec.  5,  2008)  (No.  08-368). 

20.  One  reason  to  examine  the  rules  that  apply  in  international  conflict  is  due  to  their  use  as 
an  analogy.  It  is  commonplace  for  commentators  to  draw  implicitly  and  explicitly  on  the  Third 
and  Fourth  Conventions  in  discussing  the  conflict  with  Al  Qaeda  (e.g.,  with  respect  to  detaining 
fighters  and  holding  them  until  the  cessation  of  hostilities).  We  must,  therefore,  understand  the 
referent — the  rules  governing  international  conflict — simply  to  assess  those  types  of  claims.  A 
stronger  reason  is  that  the  Fourth  Geneva  Convention,  indeed,  generally  constitutes  the  most 
closely  analogous  rules  concerning  detention  of  civilians.  It  thus  provides  the  best  approxima- 
tion of  LOAC  rules  when  interpretive  gaps  arise. 

More  fundamentally,  LOAC  in  international  armed  conflict  is  directly  relevant  because  it 
establishes  an  outer  boundary  of  permissive  action.  If  States  have  authority  to  engage  in 
particular  actions  in  an  international  armed  conflict,  they  a  fortiori  possess  the  authority  to 
engage  in  those  actions  in  non-international  conflict.  That  proposition  results  from  the  general 
relationship  between  State  sovereignty  and  international  law.  And  LOAC  is  no  exception.  The 
scope  of  LOAC  is  uniformly  less  restrictive  in  internal  armed  conflicts  (where  State  sovereignty  is 
stronger)  than  in  international  armed  conflicts  (where  State  sovereignty  is  weaker).  Hence,  if 
LOAC  permits  States  to  detain  civilians  in  international  armed  conflicts,  LOAC  surely  permits 
States  to  take  those  actions  in  non-international  conflicts. 

21.  Military  Commissions  Act  of  2006  §  948  a(l),  Pub.  L.  No.  109-366,  120  Stat.  2600  (Oct. 
17,  2006)  (codified  in  10  USC  47(A)). 


380 


Ryan  Goodman 


22.  Memorandum  from  Deputy  Secretary  of  Defense  Paul  Wolfowitz  to  the  Secretary  of  the 
Navy,  Order  Establishing  Combatant  Status  Review  Tribunals  1  (July  7,  2004),  available  at  http:// 
www.defenselink.mil/news/Jul2004/d20040707review.pdf. 

23.  Department  of  Defense,  Fact  Sheet:  Guantanamo  Detainees  2  (Feb.  13, 2004)  (including 
among  "representative  examples"  of  detained  combatants  individuals  "involved  in  terrorist  fi- 
nancing," "with  links  to  a  financier  of  the  September  1 1th  plots,"  and  "who  served  as  an  al  Qaida 
translator  and  managed  operating  funds"),  available  at  http://www.defenselink.mil/news/ 
Apr2004/d20040406gua.pdf;  see  also  News  Release,  Office  of  the  Assistant  Secretary  of  Defense 
(Public  Affairs),  Guantanamo  Provides  Valuable  Information  (June  12,  2005),  available  at 
www.defenselink.mil/releases/release.aspx?releaseid=8583  ("Guantanamo  houses  enemy  com- 
batants ranging  from  terrorist  trainers  and  recruiters  to  bomb  makers,  would-be  suicide  bomb- 
ers and  terrorist  financiers").  Also  consider  the  principal  charges  against  individuals  held  at 
Guantanamo  and  later  designated  for  prosecution  before  military  commissions.  According  to 
the  initial  charge  sheets,  one  detainee  allegedly  served  as  an  "accountant  and  treasurer"  and 
"provided  logistical  support  such  as  food,  shelter  and  clothing;"  he  also  "assisted  in  loading  and 
transporting"  weapons  and  ammunition.  Charge  Sheet  at  3-4,  United  States  v.  al  Qosi  (US  Mili- 
tary Commission),  available  at  http://www.defenselink.mil/news/Feb2008/d20080208qosi.pdf 
(last  visited  Feb.  10, 2009).  A  second  detainee  "created  several  instructional  and  motivational  re- 
cruiting video  tapes."  Charge  Sheet  at  3,  United  States  v.  al  Bahlul  (US  Military  Commission), 
available  at  http://www.defenselink.mil/news/Jun2004/d20040629ABCO.pdf  (last  visited  Feb. 
10,  2009).  These  allegations  alone  clearly  would  not  support  a  finding  of  "direct  participation" 
under  LOAC.  Instead,  these  facts  fall  squarely  within  expressly  identified  examples  of  indirect 
participation  or  nonparticipation.  See  MICHAEL  BOTHE  ET  AL.,  NEW  RULES  FOR  VICTIMS  OF 
ARMED  CONFLICTS  672  (1982)  (noting  that  "transporting  supplies,  serving  as  messengers  or  dis- 
seminating propaganda"  does  not  constitute  direct  participation).  See  also  Ryan  Goodman  8c 
Derek  Jinks,  International  Law,  U.S.  War  Powers,  and  the  Global  War  on  Terror,  118  HARVARD 
LAW  REVIEW  2653  (2005). 

24.  Matthew  C.  Waxman,  Detention  as  Targeting:  Standards  of  Certainty  and  Detention  of 
Suspected  Terrorists,  108  COLUMBIA  LAW  REVIEW  1365,  1375  (2008). 

25.  Headquarters,  Department  of  the  Army  8c  Headquarters,  Marine  Corps  Combat  Devel- 
opment Command,  FM  3-24/MCWP  3-33.5,  Counterinsurgency  J  7-40  (2006). 

26.  See  also  Department  of  Defense,  Fact  Sheet:  Guantanamo  Detainees,  supra  note  23,  at  6 
("The  commander  of  US  Southern  Command,  or  his  designee,  then  makes  a  recommendation 
in  each  individual  case  ....  Continued  detention  of  enemy  combatants  is  appropriate  not  only 
when  a  detainee  is  identified  as  posing  a  significant  threat  if  released,  but  also  when . . .  there  is  a 
substantial  law  enforcement  or  intelligence  interest"). 

27.  Counterinsurgency,  supra  note  25. 

28.  President  George  W.  Bush,  Remarks  on  the  War  on  Terror,  42  WEEKLY  COMPILATION 
OF  PRESIDENTIAL  DOCUMENTS  1569  (Sept.  6,  2006);  see  also  id.  at  1573  ("[0]nce  we've  de- 
termined that  the  terrorists  held  by  the  CIA  have  little  or  no  additional  intelligence  value,  many 
of  them  have  been  returned  to  their  home  countries  for  prosecution  or  detention  by  their 
governments"). 

29.  Deputy  Secretary  of  Defense  Paul  Wolfowitz,  OSD  Order  06942-04,  Administrative 
Review  Procedures  for  Enemy  Combatants  in  the  Control  of  the  Dep't  of  Def.  at  Guantanamo 
Bay,  Cuba  (May  11,  2004),  at  1-2,  available  at  http://www.defenselink.mil/news/May2004/ 
d200405 1 8gtmoreview.pdf. 

30.  Administrative  Review  Board  Process  §  3(f)(1)(c)  (attached  to  Memorandum  from 
Gordon  England,  Deputy  Secretary  of  Defense,  to  the  Secretary  of  State  et  al.,  Implementation  of 


381 


Rationales  for  Detention:  Security  Threats  and  Intelligence  Value 

Administrative  Review  Procedures  for  Enemy  Combatants  Detained  at  US  Naval  Base 
Guantanamo  Bay,  Cuba  (Sept.  14,  2004),  available  at  http://www.defenselink.mil/news/ 
Sep2004/d200409 1 4adminreview.pdf) . 

31.  General  Tommy  Franks,  Press  Conference  in  Tampa,  Florida  (Jan.  18,  2002),  http:// 
www.globalsecurity.org/military/library/news/2002/01/mil-0201 18-dod01. htm  ("When  we 

have  them  in  Guantanamo  Bay,  that  sort  of  interrogation  will  continue,  and  then  determina- 
tions will  be  made  as  to  whether  these — a  given  detainee  may  be  retained  for  intelligence  value  or 
may  be  handed  over  for  prosecution  within  legal  channels.");  Neil  A.  Lewis,  Red  Cross  Criticizes 
Indefinite  Detention  in  Guantanamo  Bay,  NEW  YORK  TIMES,  Oct.  10,  2003,  at  Al  ("General 
[Geoffrey]  Miller[,  Commander  of  Joint  Task  Force  Guantanamo  Bay,]  said  the  inmates  had 
been  kept  in  custody  because  they  had  valuable  information  to  impart."). 

32.  U.N.  Economic  and  Social  Counsel,  Commission  on  Human  Rights,  Situation  of  De- 
tainees at  Guantanamo  Bay,  Report  of  the  Chairperson-Rapporteur  of  the  Working  Group  on 
Arbitrary  Detention;  the  Special  Rapporteur  on  the  independence  of  judges  and  lawyers;  the  Spe- 
cial Rapporteur  on  torture  and  other  cruel,  inhuman  or  degrading  treatment  or  punishment;  the 
Special  Rapporteur  on  freedom  of  religion  or  belief;  and  the  Special  Rapporteur  on  the  right  of 
everyone  to  the  enjoyment  of  the  highest  attainable  standard  of  physical  and  mental  health,  ^  23, 
U.N.  Doc.  E/CN.4/2006/120  (Feb.  2006),  available  at  http://daccessdds.un.org/doc/UNDOC/ 
GEN/G06/112/76/PDF/G0611276.pdf?OpenElement  [hereinafter  Joint  Report  on  Situation  of 
Detainees  at  Guantanamo  Bay]. 

33.  Brief  for  the  Petitioner  at  28-29,  Rumsfeld  v.  Padilla,  542  U.S.  426  (2004)  (No.  03-1027). 

34.  Declaration  of  Vice  Admiral  Lowell  E.  Jacoby,  id.,  available  at  http://www.pegc.us/ 
archive/Padilla_vs_Rumsfeld/ Jacoby_declaration_20030 1 09.pdf. 

35.  For  further  analysis  on  this  point,  see  Marty  Lederman,  The  Rosetta  Stone  of  the  Detention/ 
Interrogation  Scandal,  http://balkin.blogspot.com/2007/08/rosetta-stone-of-detentioninterrogation 
.html  (Aug.  14,  2007,  1 1:32  EDT). 

36.  al-Marri  v.  Pucciarelli,  534  F.3d  213,  237  n.19  (2008)  (Motz,  J.,  concurring  in  part  and 
dissenting  in  part). 

37.  Lederman,  supra  note  35. 

38.  On  the  theory  that  the  US  conflict  with  Al  Qaeda  extends  into  Iraq,  US  detention  prac- 
tices in  that  area  are  relevant  to  our  discussion. 

39.  See  Andru  E.  Wall,  Civilian  Detentions  in  Iraq,  in  INTERNATIONAL  LAW  AND  ARMED 
CONFLICT:  EXPLORING  THE  FAULTLINES:  ESSAYS  IN  HONOUR  OF  YORAM  DlNSTEIN  413,  431 
(Michael  N.  Schmitt  &  Jelena  Pejic  eds.,  2007). 

40.  See,  e.g.,  JAMES  R.  SCHLESINGER  ET  AL.,  FINAL  REPORT  OF  THE  INDEPENDENT  PANEL  TO 
REVIEW  DETENTION  OPERATIONS  60  (2004),  available  at  http://news.findlaw.com/wp/docs/ 
dod/abughraibrpt.pdf  ("The  security  detainees  were  either  held  for  their  intelligence  value  or 
presented  a  continuing  threat  to  Coalition  Forces.");  id.  at  61  ("Interviews  indicated  area  com- 
manders were  reluctant  to  concur  with  release  decisions  out  of  concern  that  potential  combat- 
ants would  be  reintroduced  into  the  areas  of  operation  or  that  the  detainees  had  continuing 
intelligence  value."). 

41.  Lewis,  supra  note  31  (Christophe  Girod,  senior  Red  Cross  official  in  Washington,  "said 
that  it  was  intolerable  that  the  [Guantanamo]  complex  was  used  as  'an  investigation  center,  not  a 
detention  center.'"). 

42.  Joint  Report  on  Situation  of  Detainees  at  Guantanamo  Bay,  supra  note  32,  J  23;  cf.  Role 
of  the  ICRC,  supra  note  10  ("Persons  detained  in  relation  to  an  armed  conflict  may  be  detained 
for  either  imperative  reasons  of  security  or  on  suspicion  of  having  committed  a  crime."). 

43.  Hamdi  v.  Rumsfeld,  542  U.S.  507,  521  (2004). 


382 


Ryan  Goodman 


44.  Mat  518. 

45.  COMMENTARY:  III  GENEVA  CONVENTION  RELATIVE  TO  THE  TREATMENT  OF  PRISONERS 
OF  WAR  515  (Jean  S.  Pictet  ed.,  1960)  (explaining  in  similar  terms  the  categorical  obligation  to 
repatriate). 

46.  Convention  Relative  to  the  Treatment  of  Prisoners  of  War  art.  110,  Aug.  12,  1949,  6 
U.S.T.  3316,  75  U.N.T.S.  135,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  7,  at 
244. 

47.  Id.,  art.  17(3)  ("No  physical  or  mental  torture,  nor  any  other  form  of  coercion,  may  be 
inflicted  on  prisoners  of  war  to  secure  from  them  information  of  any  kind  whatever.  Prisoners  of 
war  who  refuse  to  answer  may  not  be  threatened,  insulted,  or  exposed  to  unpleasant  or  disadvan- 
tageous treatment  of  any  kind.");  Civilians  Convention,  supra  note  7,  art.  31  ("No  physical  or 
moral  coercion  shall  be  exercised  against  protected  persons,  in  particular  to  obtain  information 
from  them  or  from  third  parties."). 

48.  ICRC  COMMENTARY  IV,  supra  note  8,  at  257. 

49.  Id.  There  is  a  possible  exception  with  respect  to  information,  but  of  a  wholly  different 
character.  An  individual  may  possess  information  which  makes  her  a  danger  to  the  detaining 
power  (e.g.,  knowledge  of  vulnerabilities  in  the  detaining  power's  defense  system).  A  plausible 
reading  of  Commentary  IV  would  permit  the  employment  of  administrative  detention — if  it  is 
absolutely  necessary — to  prevent  her  directly  assisting  the  enemy  with  that  type  of  knowledge. 
See  id.  at  258  ("To  justify  recourse  to  such  measures  the  State  must  have  good  reason  to  think  that 
the  person  concerned,  by  his  activities,  knowledge  or  qualifications,  represents  a  real  threat  to  its 
present  or  future  security."). 

50.  Id.  at  258.  See  also  Prosecutor  v.  Delalic  et  al.,  ICTY  Trial  Chamber,  Case  No.  IT-96-21, 
Judgment,  J  568  (Nov.  16, 1998),  upheld  by  Prosecutor  v.  Delalic  et  al.,  ICTY  Appeals  Chamber, 
Case  No.  IT-96-21 -A,  Judgment  (Feb.  20, 2001);  Prosecutor  v.  Kordic  and  Cerkez,  Case  No.  IT- 
95-14/2-T,  Judgment,  If  280  (Feb.  26,  2001),  upheld  by  Prosecutor  v.  Kordic  and  Cerkez,  ICTY 
Appeals  Chamber,  Case  No.  IT-95-14/2-A,  Judgment,^  72-73,  620  (Dec.  17,  2004). 

51.  Declaration  of  Vice  Admiral  Jacoby,  supra  note  34,  at  5. 

52.  Wall,  supra  note  39,  at  431. 


383 


PARTV 


STABILITY  OPERATIONS 


XV 


Jus  ad  Pacem  in  Bellol  Afghanistan,  Stability 

Operations  and  the  International  Laws 

Relating  to  Armed  Conflict 


David  Turns* 

Introduction 

One  of  the  more  notorious  quotations  widely  attributed  to  George  W.  Bush, 
when  he  was  campaigning  for  the  presidency  of  the  United  States  in  2000, 
was  something  to  the  effect  that "  [w]e  don't  do  nation-building."  As  with  many  at- 
tributed quotations,  the  actual  remark  he  made  was  less  curt  and  slightly  more 
nuanced.  What  actually  happened  was  that  in  the  course  of  a  presidential  debate 
with  his  opponent,  Vice  President  Al  Gore,  Bush  was  asked  if  he  would  have  sup- 
ported US  military  involvement  in  the  ill-fated  expanded  United  Nations  Opera- 
tion in  Somalia  (UNOSOM II)  in  1993-941  had  he  been  president  at  the  time.  This 
is  what  he  actually  said  in  reply: 

[Somalia]  [sjtarted  off  as  a  humanitarian  mission  and  it  changed  into  a  nation- 
building  mission,  and  that's  where  the  mission  went  wrong.  The  mission  was  changed. 
And  as  a  result,  our  nation  paid  a  price.  And  so  I  don't  think  our  troops  ought  to  be 
used  for  what's  called  nation-building.  I  think  our  troops  ought  to  be  used  to  fight  and 


*  Senior  Lecturer  in  International  Laws  of  Armed  Conflict,  Defence  Academy  of  the  United 
Kingdom  (Cranfield  University).  All  opinions  stated  herein  are  personal  to  the  author  and  are  in 
no  way  to  be  taken  as  necessarily  representing  the  official  views  of  the  government,  Ministry  of 
Defence  or  Armed  Forces  of  the  United  Kingdom.  Responsibility  for  any  errors  is  mine  alone. 


Stability  Operations  and  Public  International  Law 

win  war.  I  think  our  troops  ought  to  be  used  to  help  overthrow  the  dictator  when  it's  in 
our  best  interests.  But  in  this  case  [i.e.,  Somalia]  it  was  a  nation-building  exercise,  and 
same  with  Haiti. [2]  I  wouldn't  have  supported  either.3 

This  antipathy  notwithstanding,  and  despite  former  President  Bush's  best  ef- 
forts amid  the  rhetoric  of  the  "Global  War  on  Terror,"  the  realities  of  the  transna- 
tional military  operational  environment  in  the  first  decade  of  the  twenty-first 
century  have  produced  an  exponential  growth  in  the  importance  of  what  are  now 
generally  termed  stability  (or  stabilization)  operations,  to  such  an  extent  that  even 
US  military  doctrine  now  acknowledges  such  operations  as  "a  core  U.S.  military 
mission . . .  [to]  be  given  priority  comparable  to  combat  operations."4  The  Ministry 
of  Defence  in  the  United  Kingdom,  whose  long  experience  with  so-called  "small 
wars"  in  the  postcolonial  context  during  the  withdrawal  from  Empire  (approxi- 
mately during  the  period  1945-65,  including  conflicts  in  Palestine,  Malaya,  Cy- 
prus, Kenya  and  Aden)  has  led  some  foreign  observers  to  suggest  a  particular 
mastery  of  nation-building  and  counterinsurgency  campaigns,5  has  only  recently — 
in  January  2009 — circulated  a  working  draft  of  what  will  eventually  become  the 
first  promulgation  of  a  British  doctrine  on  such  operations.6 

The  current  campaign  in  Afghanistan  has  been  described  as  "a  test  case  for  in- 
ternational development  assistance  and  bi-  and  multilateral  cooperation"7  even  in 
the  midst  of  sustained  combat  operations  in  substantial  parts  of  the  country, 
whereby  "the  main  problems . . .  are  restoring  security  and  establishing  a  function- 
ing state."8  Stability  operations  seem  to  have  become  the  catchphrase  for  a  new 
generation  of  military  actions:  indeed,  they  have  come  to  be  viewed  as  an  essential 
stage  in  the  type  of  conflicts  most  prevalent  today,  namely,  asymmetric  conflicts 
between  State  and  non-State  actors.  In  order  to  win  the  war  it  has  become  essential, 
in  places  like  Iraq  and  Afghanistan,  to  win  the  peace,  and  that  is  done  by  stabilizing 
the  situation  in  theater  after  the  initial  opposition  has  been  defeated  or  at  least  con- 
tained.9 The  moment  of  hubris,  when  President  Bush  landed  on  the  aircraft  carrier 
USS  Abraham  Lincoln  on  May  1,  2003  and  declared  that  major  combat  operations 
in  Iraq  had  ended,  did  not  in  fact  herald  the  conclusion  of  hostilities  in  Iraq:  the  co- 
alition merely  swapped  one  enemy  (the  State  armed  forces  of  the  defeated  Saddam 
Hussein  regime)  for  another  (various  assorted  non-State  militias  representing  dif- 
ferent sectors  of  Iraqi  society,  along  with  groups  affiliated  with  Al  Qaeda).  In  Af- 
ghanistan, by  way  of  contrast,  the  main  enemy  has  stayed  the  same — i.e.,  the 
Taliban — but  its  status  changed  from  being  the  de  facto  government  in  control  of 
up  to  90  percent  of  Afghan  territory  in  September  2001,  to  that  of  an  insurgency 
dispersed  in  (mainly)  the  southern  provinces  of  Kandahar  and  Helmand.  Al- 
though intensive  military  operations  against  the  Taliban  continue,  international 


388 


David  Turns 


coalition  forces  in  Afghanistan,  acting  in  concert  with  the  Afghan  government  of 
President  Hamid  Karzai,  are  attempting  at  the  same  time  to  continue  apace  with 
the  reconstruction  and  development  of  the  country:  in  a  word,  nation-building.10 

Military  operations  in  circumstances  such  as  those  prevailing  in  Afghanistan  are 
situated  at  the  intersections  of  two  major  fault  lines  in  public  international  law: 
namely,  they  are  at  the  junction  of  the  jws  ad  helium  and  the  jus  in  hello,  and  simulta- 
neously (within  the  jus  in  hello)  at  the  junction  of  international  and  non-international 
armed  conflicts.  This  article  will,  first,  define  stability  operations  in  doctrinal  terms 
and  situate  them  within  an  international  legal  context.  The  significance  of  their  legit- 
imacy under  the  jws  ad  helium  will  be  briefly  considered  and  related  to  the  context  of 
Afghanistan  before  their  classification  in  terms  of  the  international  law  of  armed 
conflict  (LOAC)  will  be  analyzed.  The  application  of  the  jus  in  hello  to  such  opera- 
tions will  then  be  discussed,  with  reference  to  some  specific  operational  problems 
such  as  the  status  and  treatment  of  insurgents  captured  by  coalition  forces  in  Af- 
ghanistan, and  the  targeting  of  such  insurgents.  Finally,  some  tentative  conclusions 
will  be  suggested  as  to  the  international  law  applicable  to  stability  operations. 

From  Peacekeeping  to  Stability  Operations 

The  phrase  "stability  operations"  may  represent,  to  some  extent,  new  terminology; 
but  it  does  emphatically  not  refer  to  a  new  phenomenon  in  the  continuum  of  mili- 
tary operations.  The  military  doctrinal  term  previously  applied  in  the  United  States 
and  United  Kingdom  was  "military  operations  other  than  war"  (MOOTW),  a  term 
that  somehow  always  seemed  to  carry  a  faint  hint  of  derision  but  nevertheless  was 
undeniably  useful  as  a  catch-all  phrase:  in  effect,  it  covered  practically  the  entire 
spectrum  of  military  operations,  excluding  only  all-out  "war."11  From  the  mid- 
1950s  until  the  early  1990s  the  principal  manifestation  of  MOOTW  was  in  "classic" 
peacekeeping  operations  undertaken  pursuant  to  UN  mandates. 

Starting  in  1992  with  the  situation  in  Somalia,  the  United  Nations  began  to  use 
two  new  terms — "peace  enforcement"  and  "peace  building" — which  were  distin- 
guished from  traditional  peacekeeping.  While  peacekeeping  involved  the  interpo- 
sition of  a  military  force  with  host  State  consent  in  order  to  supervise  ceasefire  or 
peace  agreements  already  in  place,  typically  with  very  restrictive  rules  of  engage- 
ment that  extended  no  further  than  authorizing  the  use  of  force  in  self-defense, 
peace  enforcement  came  to  be  used  to  refer  to  what  might  be  described  as  a 
"beefed-up  peacekeeping  operation,"  namely  one  in  which  the  situation  re- 
mained unstable  enough  to  allow  for  an  expansion  of  the  permitted  use  of  force 
in  order  to  maintain  the  peace.  This  would  generally  occur  in  situations  where  the 
parties  to  the  conflict  might  have  reached  a  ceasefire  or  interim  peace  accord,  but 

389 


Stability  Operations  and  Public  International  Law 

its  observance  was  too  fragile  for  the  interpositional  force  to  preserve  a  passive 
role.  Peace  enforcement,  in  other  words,  was  proactive  and  essentially  involved 
the  international  force  taking  sides  in  the  enforcement  of  obligations  already  en- 
tered into  by  the  belligerents.12  Peace  building,  on  the  other  hand,  encompassed  a 
much  wider  range  of  activities  designed  to  prevent  the  resumption  or  prolifera- 
tion of  a  particular  conflict,  from  disarmament  and  demobilization  of  the  warring 
parties  to  election  monitoring,  from  the  strengthening  of  State  institutions  to  the 
promotion  of  human  rights  and  from  the  repatriation  of  refugees  to  the  provision 
of  humanitarian  aid.13  UN-mandated  missions  throughout  the  1990s  in  Somalia, 
Haiti,  Bosnia  and  Herzegovina,  and  Kosovo  all  had  various  combinations  of  the 
above  list  of  activities  taking  place  simultaneously.  Their  salient  feature  for  the 
purposes  of  this  discussion  was  that  they  all  took  place  in  conditions  of  continu- 
ing armed  conflict  or,  at  the  very  least,  serious  civil  unrest. 

Strangely,  however,  although  the  range  of  activities  being  assigned  to  these  mis- 
sions grew  and  although  there  was  often  manifestly  no  peace  to  keep,  few  outside 
the  United  Nations  adopted  the  new  terminologies  outlined  above:  within  the  US 
government,  for  example,  Congress  continued  to  use  the  generic  term  "peacekeep- 
ing" to  refer  to  all  such  operations,  while  the  executive  branch  adopted  the  simi- 
larly generic  "peace  operations."  In  both  cases,  the  inclusion  of  the  word  "peace" 
was  manifestly  misplaced  since  it  created  the  misleading  impression  that  such  op- 
erations involved  comparatively  little  risk  for  the  military  personnel  assigned  to 
them,  whereas  in  fact  they  often  saw  soldiers  in  what  amounted  to  full-scale 
warfighting  operations.  This,  coupled  with  the  stigma  of  failure  that  came  in  many 
circles  to  be  attached  to  "peace  operations"  in  1990s,  contributed — at  least  on  a 
psychological  level — to  the  shift  in  language  away  from  peace  and  toward  stability. 
Peace  became  the  endgame,  the  ultimate  objective  to  be  achieved;  hence,  jus  ad 
pacem.  But  the  realities  on  the  ground  in  places  like  Iraq  and  Afghanistan,  with  all 
their  complexities  and  ambiguities,  forced  a  general  recognition  that  in  order  to 
have  peace,  it  is  necessary  to  have  stability. 

The  US  Department  of  Defense  currently  characterizes  stability  operations  as 
"[military  and  civilian  activities  conducted  across  the  spectrum  from  peace  to 
conflict  to  establish  or  maintain  order  in  States  and  regions."14  The  US  doctrinal 
definition  of  stability  operations  ("missions,  tasks  and  activities  [that]  seek  to  main- 
tain or  reestablish  a  safe  and  secure  environment  and  provide  essential  government 
services,  emergency  infrastructure  reconstruction,  or  humanitarian  relief'15)  is  situ- 
ated within  the  following  contemporary  context: 

The  character  of  this  conflict  [i.e.,  the  post-2001  security  environment]  is  unlike  any 
other  in  recent  American  history,  where  military  forces  operating  among  the  people  of 


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David  Turns 


[the]  world  will  decide  the  major  battles  and  engagements.  The  greatest  threats  to  our 
national  security  will  not  come  from  emerging  ambitious  states  but  from  nations 
unable  or  unwilling  to  meet  the  basic  needs  and  aspirations  of  their  people.  Here,  the 
margin  of  victory  will  be  measured  in  far  different  terms  from  the  wars  of  our  past. 
However,  time  maybe  the  ultimate  arbiter  of  success:  time  to  bring  safety  and  security 
to  an  embattled  populace;  time  to  provide  for  the  essential,  immediate  humanitarian 
needs  of  the  people;  time  to  restore  basic  public  order  and  a  semblance  of  normalcy  to 
life;  and  time  to  rebuild  the  institutions  of  government  and  market  economy  that 
provide  the  foundations  for  enduring  peace  and  stability.  This  is  the  essence  of  stability 
operations.16 

It  is  very  telling — and  very  relevant  for  the  assumption  of  this  author,  that  the 
conduct  of  stability  operations  must  be  subject  to  the  international  law  of  armed 
conflict — that  this  description  of  the  context  for  stability  operations  explicitly 
places  them  within  a  continuum  of  military  operations,  that  is  to  say,  in  a  spectrum 
of  activity  that  in  itself  is  closer  to  war  than  to  peace. 

In  the  United  Kingdom,  despite  the  lack  at  present  of  a  formally  promulgated 
doctrine  on  stability  operations,  military  thinking  is  very  much  on  the  same  lines  as 
that  of  our  US  counterparts.  Stability  operations  are  understood  to  be  those  that 
impose  security  and  control  in  a  defined  area  while  restoring  and  developing  infra- 
structure and  services,  in  collaboration  with  appropriate  civilian  agencies.  They 
may  involve  kinetic  or  non-kinetic  applications  of  force  and  may  occur  before, 
during  or  after  major  combat  operations;  or  indeed,  they  may  in  themselves  be  the 
primary  objective  of  a  campaign.  Their  desired  endgame,  ultimately,  is  always  to 
secure  a  transition  of  power  and  control  to  the  civilian  authorities  of  the  host  State. 
Recently  the  Chief  of  the  UK  General  Staff  characterized  stability  operations  as 
involving  "several  different  lines  of  operation — ensuring  security,  rebuilding  es- 
sential services,  promoting  good  governance  and  facilitating  economic  regenera- 
tion."17 Discussing  future  trends  for  the  British  armed  forces,  he  said: 

Instead  of  adapting  each  time  we  deploy,  it  is  clear  from  recent  experiences  that  we 
should  be  structured  and  trained  to  conduct  an  Intervention  and  Stabilisation 
operation  almost  as  the  default  setting,  with  the  right  forces  and  the  correctly  qualified 
personnel  with  the  right  training  to  deliver  the  right  effect  from  the  outset. 

And  this  will  require  both  kinetic  and  non-kinetic  means — there  will  always  be  a  need 
for  soldiers  who  are  trained  to  fight  a  hostile  and  implacable  enemy,  but  there  will  also 
be  a  need  for  soldiers  who  are  trained  to  deliver  essential  services  until  the  situation  is 
safe  enough  for  civil  agencies  to  engage;  so  there  will  be  a  need  for  soldiers  trained  to 
deliver  humanitarian  assistance,  to  assist  with  the  delivery  of  local  governance[,]  and 
for  soldiers  who  are  experts  in  the  local  politics  and  culture  of  the  area,  and  who  can 
therefore  initiate  the  early  stages  of  reconciliation  and  peace-building.18 

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Stability  Operations  and  Public  International  Law 

Perhaps  the  most  significant  aspect  of  General  Dannatt's  remarks  is  his  sugges- 
tion that  stability  operations  be  regarded  "almost  as  the  default  setting"  for  future 
British  military  capabilities.  This  reflects  the  British  view  that  "major  combat  oper- 
ations"— full-scale  inter-State  armed  conflicts  which  have  as  their  objective  the  to- 
tal defeat  of  a  governmental  enemy,  leading  to  its  removal  from  power — are  very 
much  the  exception  in  the  contemporary  paradigm  of  "fourth-generation  war- 
fare." In  both  the  Afghanistan  (2001)  and  Iraq  (2003)  campaigns,  operations  di- 
rected against  the  State  (the  Taliban  in  the  former  case,  Saddam's  armed  forces  in 
the  latter)  were  over  remarkably  quickly;  yet  counterinsurgency  fighting  continues 
to  this  day,  alongside  attempts  to  transform  the  institutions  and  infrastructure  of 
these  failing  States  into  stable,  functioning  authorities  that  are  able  to  maintain  law 
and  order.  Whether  or  not  one  accepts  in  abstracto  the  Bush  administration's  char- 
acterization of  the  contemporary  security  environment  for  America  and  her  allies 
as  a  "long  war,"19  ongoing  stability  operations  in  Afghanistan  and  Iraq  have  aspects 
that  definitely  amount  in  effect  to  "war,"  even  while  the  stated  objective  is  peace. 

Stability  operations  are  nowhere  mentioned  in  international  law;  neither  the  jws 
ad  helium  nor  the  jus  in  hello  explicitly  recognizes  the  concept.  Nevertheless,  in 
light  of  the  foregoing,  it  must  be  stated  categorically  that  a  key  feature  of  contem- 
porary stability  operations  is  international  legitimacy  (as  will  be  seen  in  the  next 
section  with  specific  reference  to  Afghanistan).  While  legitimacy  is  not  the  same 
thing  as  legality,  the  prevalent  view  in  both  the  United  States  and  the  United  King- 
dom is  that  the  main  framework  for  international  legitimacy  is  international  legal- 
ity: stability  operations  must  take  place  on  the  basis  of  sound  authority  in 
international  law,  and  must  be  conducted  (in  their  specifically  military  aspects)  in 
accordance  with  the  international  law  of  armed  conflict. 

Stability  Operations  and  the  Legality  of  the  Use  of  Force 

Two  salient  features  of  contemporary  stability  operations  are  that  they  tend  to  be 
(1)  multilateral,  i.e.,  conducted  by  coalitions,  whether  ad  hoc  or  (preferably) 
within  the  framework  of  an  established  military  alliance,  like  the  North  Atlantic 
Treaty  Organization  (NATO);  and  (2)  legitimate,  i.e.,  constituting  a  lawful  use  of 
force  under  either  the  UN  Charter  or  customary  international  law — normally  the 
former,  since  no  stability  operations  as  presently  understood  have  taken  place  on 
such  a  controversial  legal  basis  as  the  doctrine  of  humanitarian  intervention,  for 
instance.  Current  operations  in  Afghanistan  will  hereinafter  be  taken  as  the  case 
study  for  discussion  of  stability  operations  and  international  law. 

Although  US  and  coalition  forces  first  commenced  military  action  against  the 
Taliban  militia  and  Al  Qaeda  elements  in  Afghanistan  in  Operation  Enduring 

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David  Turns 


Freedom  (OEF)  on  October  7,  2001  pursuant  to  the  right  of  individual  and  collec- 
tive self-defense  as  recognized  in  Article  51  of  the  UN  Charter  (for  which  no  Secu- 
rity Council  mandate  is  legally  required),  and  OEF  continues  to  this  day  primarily 
in  southern  and  eastern  Afghanistan,  internationally-mandated  forces  were  first 
deployed  to  the  country  only  in  December  2001,  after  the  Taliban  had  been  ejected 
from  its  seats  of  power.  The  last  main  Taliban  urban  stronghold,  Kandahar,  was 
captured  by  coalition  forces  on  December  7,  two  days  after  the  signing  of  the  Bonn 
Agreement,  in  which  delegations  of  various  Afghan  political  factions  committed 
themselves  to  cooperation  in  the  establishment  of  an  Interim  Authority  that  would 
rebuild  the  Afghan  State  after  decades  of  conflict.20  The  Bonn  Agreement  specifi- 
cally requested  the  Security  Council 

to  consider  authorizing  the  early  deployment  to  Afghanistan  of  a  United  Nations 
mandated  force.  This  force  will  assist  in  the  maintenance  of  security  for  Kabul  and  its 
surrounding  areas.  Such  a  force  could,  as  appropriate,  be  progressively  expanded  to 

other  urban  centres  and  other  areas It  would  also  be  desirable  if  such  a  force  were  to 

assist  in  the  rehabilitation  of  Afghanistan's  infrastructure.21 

On  December  19  two  letters  arrived  at  UN  headquarters:  one  from  the  Afghan 
Minister  for  Foreign  Affairs  and  the  other  from  his  British  counterpart.  The  for- 
mer stated  somewhat  opaquely  that  the  envisaged  international  security  force 
"could  be  deployed  under  Chapter  VI  or  VII  of  the  Charter."22  The  latter  expressed 
the  UK's  willingness  to  serve  as  the  initial  lead  nation  for  the  proposed  deploy- 
ment, known  as  the  International  Security  Assistance  Force  (ISAF),  with  the  core 
missions  of  ( 1 )  assisting  the  establishment  of  the  Interim  Administration  of  Af- 
ghanistan in  liaison  with  the  UN  Secretary- General's  Special  Representative  in 
Kabul;  (2)  providing  advice  and  support  to  the  Afghan  administration  and  the 
United  Nations  in  Kabul  on  security  issues;  and  (3)  preparing  for  the  establishment 
and  training  of  new  Afghan  national  armed  and  security  forces,  key  infrastructure 
development  "and  possible  future  expanded  security  assistance  in  other  parts  of 
Afghanistan."23  The  British  letter  did  not  refer  to  specific  chapters  or  articles  of  the 
UN  Charter  as  the  legal  basis  for  the  proposed  deployment,  but  stated  that  it  would 
be  "based  on  the  willingness  expressed  [on  the  part  of  the  Afghan  administration] 
to  receive  such  a  force  and  an  authorizing  Security  Council  resolution."24  The  letter 
also  emphasized  that  the  proposed  international  force  "will  have  a  particular  mis- 
sion authorized  by  a  Security  Council  resolution  that  is  distinct  from  Operation 
Enduring  Freedom."25  One  day  later,  the  Security  Council,  acting  under  Chapter  VII 
of  the  Charter,  passed  the  resolution  referred  to  in  the  British  letter  and  authorized 
the  establishment,  for  an  initial  six  months,  of  ISAF.26  Apart  from  assisting  in  the 


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Stability  Operations  and  Public  International  Law 

maintenance  of  security  in  Kabul  and  surrounding  areas,27  the  only  other  task  ex- 
pressly mandated  to  ISAF  at  this  stage  was  "to  provide  assistance  to  help  the  Afghan 
Interim  Authority  in  the  establishment  and  training  of  new  Afghan  security  and 
armed  forces."28  As  far  as  the  use  of  force  by  the  mission  was  concerned,  the  Reso- 
lution authorized  ISAF  troop-contributing  nations  (TCNs)  to  take  "all  necessary 
measures  to  fulfil  its  mandate."29 

At  this  stage,  therefore,  ISAF  was  clearly  an  ad  hoc  "coalition  of  the  willing" 
formed  by  mandate  of  the  Security  Council  under  Chapter  VII  of  the  Charter,  with 
the  use  of  force  authorized  in  terms  whose  broad  ambit  recalls  Article  42  of  the 
Charter  ("such  action  ...  as  may  be  necessary").  The  emphasis  by  the  British — and 
other  TCNs — on  Afghan  consent  to  the  operation,  however,  would  seem  to  mili- 
tate against  ISAF  being  an  Article  42  enforcement  action,  since  such  actions  are 
mandatory  in  nature  and  do  not  require  host  State  consent.  It  would  plainly  be  ab- 
surd to  classify  the  ISAF  mission  as  classic  peacekeeping,  because  of  the  extent  of 
actual  fighting  that  was  taking  place  in  Afghanistan  at  the  time  of  the  force's  initial 
deployment  and  that  continues  to  this  day.  Perhaps  better — albeit  still  imperfect — 
analogies  might  be  the  UN's  enforcement  actions  in  respect  to  Korea  (1950),  the 
Congo  (1960)  and  Haiti  (2004).  The  first  case,  that  of  Korea,  was  in  fact  the  first  in- 
stance in  which  the  phrase  "coalition  of  the  willing"  came  to  be  used  in  the  context 
of  UN  enforcement  actions.  Following  the  invasion  of  the  Republic  of  Korea 
(ROK)  by  the  forces  of  the  Democratic  People's  Republic  and  the  ROK's  appeal  to 
the  UN  for  help,  Resolution  83  of  the  Security  Council  recommended  "that  the 
Members  of  the  United  Nations  furnish  such  assistance  to  the  Republic  of  Korea  as 
maybe  necessary  to  repel  the  [North  Korean]  armed  attack  and  to  restore  interna- 
tional peace  and  security  in  the  area."30  The  result  was  three  years  of  intensive  hos- 
tilities, but  the  UN-ROK  forces  were  not  organized  into  a  UN  mission  as  such,  nor 
was  their  contribution  mandatory:  it  should  be  remembered  that  Resolution  83 
merely  recommended  that  UN  member  States  provide  military  assistance  to  the 
ROK.  Moreover,  there  was  no  civilian  component  and  the  operation  was  a  classic 
warfighting  campaign,  with  none  of  the  reconstruction  and  development  activities 
associated  with  stability  operations. 

In  the  second  case  the  United  Nations,  having  received  a  request  for  military  as- 
sistance from  the  Prime  Minister  of  the  newly-independent  Congo  in  the  face  of 
Belgian  military  intervention  and  the  attempted  secession  of  the  province  of 
Katanga,  authorized  the  Secretary-General  "to  take  the  necessary  steps  ...  to  pro- 
vide the  Government  with  such  military  assistance  as  may  be  necessary  until . . .  the 
[Congolese]  national  security  forces  maybe  able,  in  the  opinion  of  the  [Congolese] 
Government,  to  meet  fully  their  tasks."31  A  subsequent  resolution  on  the  same 
matter  urged  "that  the  United  Nations  take  immediately  all  appropriate  measures 

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David  Turns 


to  prevent  the  occurrence  of  civil  war  in  the  Congo,  including  arrangements  for 
cease-fires,  the  halting  of  all  military  operations,  the  prevention  of  clashes,  and  the 
use  of  force,  if  necessary,  in  the  last  resort."32  Although  the  resulting  force,  the  Or- 
ganisation des  Nations  Unies  au  Congo,  was  officially  a  peacekeeping  mission,  it  did 
become  involved  in  actively  suppressing  the  Katangese  secessionists,  thereby  tak- 
ing sides  in  a  way  that  peacekeeping  missions  do  not  normally  do.  A  remarkably 
complex  operation  for  the  time,  with  large  civilian  and  technical  components 
alongside  military  troops,  it  eventually  came  to  number  some  twenty  thousand  of- 
ficers and  men. 

The  third  case  is  perhaps  the  closest  analogy  to  the  deployment  of  ISAF:  the  Se- 
curity Council  created  the  Mission  des  Nations  Unies  pour  la  stabilisation  en  Haiti 
(MINUSTAH)  in  2004,33  a  decade  after  authorizing  a  multinational  force  to  inter- 
vene and  effect  "regime  change."  MINUSTAH  is  Brazilian-led  and  comprises  some 
nine  thousand  personnel,  with  both  military  and  civilian  components;  its  wide- 
ranging  tasks  include  ensuring  a  secure  and  stable  environment  (including  reform- 
ing the  Haitian  National  Police  and  protecting  civilians  from  imminent  threat  of 
physical  violence),  supporting  the  constitutional  and  political  process  (including 
the  administration  of  elections  and  the  extension  of  State  authority  and  good  gov- 
ernance at  all  levels  throughout  Haiti),  the  promotion  and  protection  of  human 
rights34  and  the  facilitation  of  humanitarian  assistance.35  Within  that  framework, 
in  2004-05  MINUSTAH  personnel  executed  large-scale  military  raids,  using  lethal 
force,  on  the  slum  of  Cite  Soleil  in  the  capital  city  of  Port-au-Prince  (an  anarchic 
area  in  which  armed  gangs  roam  the  streets  shooting,  looting,  raping  and  kidnap- 
ping), with  subsequent  allegations  of  excessive  collateral  damage;36  MINUSTAH 
soldiers  have  been  killed,  also. 

In  Afghanistan,  strategic  command,  control  and  coordination  of  ISAF  was  as- 
sumed unilaterally  by  NATO  on  August  11, 2003,37  and  it  remains  a  NATO  opera- 
tion to  the  present  time — still  separate  from  the  American-led  OEF,  which  has  a  far 
smaller  number  of  TCNs  and  is  not  being  executed  within  the  framework  of  an  in- 
ternational organization.  The  Afghan  government  immediately  approved  of 
NATO's  assumption  of  the  ISAF  mandate  and,  indeed,  addressed  a  formal  request 
to  the  Security  Council  to  expand  the  mandate  so  as  to  permit  deployments  of  ISAF 
outside  the  Kabul  area;38  thus  host  State  consent  has  continued  to  be  a  crucial  ele- 
ment of  the  legal  basis  for  stability  operations  in  Afghanistan.  This  was  then  ac- 
knowledged and  formalized  by  the  Security  Council  in  Resolution  1510,  which 
authorized  the  expansion  of  ISAF's  mandate  and  the  continued  use  of  all  necessary 
measures  to  fulfill  that  mandate.39  The  ISAF  mandate  is  renewable  at  yearly  inter- 
vals, the  latest  Security  Council  authorization  at  the  time  of  writing  dating  from 
September  22, 2008.40  Current  troop  levels  are  approximately  55,100,  supplied  by  a 

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Stability  Operations  and  Public  International  Law 

total  of  forty-one  States  under  NATO  leadership.41  Particularly  prominent  among 
ISAF's  activities  for  some  years  have  been  the  Provincial  Reconstruction  Teams 
(PRTs),  which  operate  at  a  local  level  to  rebuild  infrastructure.42  With  the  increas- 
ing emphasis  on  the  need  to  transfer  more  and  more  capability  and  power  in  the 
field  of  security  to  the  Afghan  National  Army  (ANA),  a  major  aspect  of  ISAF's  op- 
erations now  is  the  Operational  Mentor  and  Liaison  Teams,  which  are  deployed  to 
ANA  partner-units  across  the  country,  with  the  objective  of  training  and 
mentoring  the  ANA  in  its  capability  for  independent  operational  deployments,  co- 
ordinating ISAF-ANA  liaison  and  ensuring  the  provision  of  enabling  support  to 
ANA  units.43 

The  basis  of  ISAF's  stability  operations  in  international  law  appears  uncertain  to 
the  extent  that  such  operations  are  nowhere  mentioned  in  the  UN  Charter,  nor  do 
they  exist  as  a  clear  concept  recognized  by  customary  international  law.  Rather, 
they  are  a  military  doctrinal  construct  that  reflects  the  realities  of  the  types  of  oper- 
ations being  carried  out  in  environments  like  that  of  Afghanistan,  where  conflicts 
are  ongoing  but  international  efforts  are  being  made  to  shore  up  the  legitimate 
government  and  increase  its  capabilities.  ISAF  is  characterized  by  NATO  as  deriv- 
ing from  a  peace-enforcement  mandate  under  Chapter  VII  of  the  Charter,  despite 
the  fact  that  it  is  a  "coalition  of  the  willing"  rather  than  a  UN  force.44  In  that  sense, 
it  is  quite  different  from  the  operations  mandated  in  Congo  and  Haiti  discussed 
earlier.  Comparisons  with  the  UN-ROK  forces  fighting  in  Korea,  the  original  "co- 
alition of  the  willing,"  would  be  more  helpful  were  it  not  for  the  fact  that  the  latter 
had  no  element  of  stabilization,  but  were  simply  charged  with  fighting  a  full-scale 
war  against  external  aggression  by  other  States:  the  intra-State,  asymmetric  and 
counterinsurgency  aspects  so  prominent  in  Afghanistan  were  entirely  absent  in 
Korea.  Official  British  pronouncements  on  the  legal  authority  for  ISAF  are  sparse, 
but  emphasize  the  combination  of  an  invitation  from  the  democratically  elected 
government  of  Afghanistan  and  the  mandate  provided  by  the  UN  Security  Council 
in  Resolution  15 10.45 

We  may  surmise  from  the  above  that  stability  operations  are  an  emerging  con- 
cept in  the  international  law  governing  the  use  of  force  and  are  thus  effectively  sui 
generis:  they  have  not  been  previously  recognized  in  customary  law  and  have  no  ex- 
plicit basis  in  the  UN  Charter  or  other  treaties — except  for  ad  hoc  specific  cases  like 
(in  relation  to  Afghanistan)  the  Bonn  Agreement.  However,  appreciation  of  their 
legitimacy,  through  a  combination  of  post-conflict  morality  and  executive  legal 
authority,  is  regarded  as  essential  by  States  that  participate  in  such  operations.46 
They  in  fact  represent  a  peculiar  combination  of  what  might  be  termed  "invited  in- 
tervention" and  "authorized  intervention" — invited  by  the  host  State  and  autho- 
rized by  an  international  organization.  Therefore,  we  may  suggest  that  the  jus  ad 

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David  Turns 


bellum  legal  basis  of  stability  operations  will  differ  from  case  to  case,  but  will  nor- 
mally have  in  common  the  following  features:  ( 1)  an  invitation  by  the  internation- 
ally legitimate  government  of  the  host  State;  (2)  a  mandate  (even  if  postdating  the 
actual  start  of  the  operation)  from  an  international  organization,  ideally  the 
United  Nations;  and  (3)  a  multilateral  coalition,  either  within  the  framework  of  an 
existing  military  alliance  such  as  NATO,  or  on  an  ad  hoc  basis. 

Whether  stability  operations  could  eventually  take  place  absent  one  or  more  of 
the  above  features  must  be  a  matter  of  some  legal  uncertainty.  In  Operation  Palliser 
in  May  2000,  the  United  Kingdom  unilaterally  planned  and  executed  a  limited  mil- 
itary intervention  in  Sierra  Leone,  initially  for  the  purpose  of  evacuating  British, 
Commonwealth  and  European  Union  citizens  at  risk  from  the  escalating  threat  to 
the  capital,  Freetown,  from  the  advancing  insurgent  forces  of  the  Revolutionary 
United  Front  (RUF).  The  noncombatant  evacuation  operation  having  been  suc- 
cessfully accomplished,  the  British  government  then  expanded  the  operation — 
again,  unilaterally — and  the  troops  retained  control  of  the  international  airport, 
enabled  the  safe  delivery  of  UN  humanitarian  aid  into  Sierra  Leone,  and  provided 
security  and  stability  in  Freetown  by  patrolling  the  capital.47  Operation  Palliser  was 
terminated  on  June  15,  2000,  although  the  United  Kingdom  continued  extensive 
involvement  in  ongoing  multinational  UN  efforts  to  bring  peace  and  security  to 
Sierra  Leone. 

The  government  of  Sierra  Leone  did  not  comment  publicly  on  the  British  ac- 
tion; neither  did  the  subsequent  debates  in  the  British  House  of  Commons48  and 
the  House  of  Lords,49  nor  in  the  UN  Security  Council,50  make  any  overt  reference 
to  the  legality  of  the  British  intervention.  Aside  from  the  United  Kingdom,  eight 
States  expressed  approval  of  the  British  action  in  the  Security  Council,51  as  did 
Secretary-General  Kofi  Annan,  although  he  made  an  oblique  reference  to  the  "lim- 
ited mandate"  of  the  British  troops.52  Following  its  last  meeting  to  discuss  the  esca- 
lating crisis  in  Sierra  Leone  prior  to  the  British  deployment,  the  Security  Council 
had  issued  a  presidential  statement  in  which  it  "call[ed]  upon  all  States  in  a  posi- 
tion to  do  so  to  assist"  the  UN  forces  already  present  in  Sierra  Leone,  which  might 
arguably  have  been  a  code  that  could  reasonably  have  been  interpreted  as  permit- 
ting State  intervention  without  the  need  for  any  further  authority  from  the  UN,53 
although  neither  the  Secretary- General  nor  any  of  the  States  in  the  Council  ex- 
pressed any  views  to  that  effect.  None  of  the  Council  members  that  failed  explicitly 
to  endorse  the  British  intervention  actually  commented  on  it  at  all  publicly,  so  their 
real  views  on  the  matter  must  remain  a  subject  of  debate;  but  they  clearly  acqui- 
esced in  it.  It  should  be  noted  that  Operation  Palliser  was  not  a  stability  operation 
ab  initio,  although  it  did  acquire  characteristics  thereof  in  the  course  of  its  execu- 
tion. It  was  not  requested  by  the  host  State,  nor  did  it  have  a  mandate  from  the 

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Stability  Operations  and  Public  International  Law 

United  Nations,  although  it  was  made  in  support  of  the  UN  peacekeeping  mission 
already  present  in  Sierra  Leone  (many  of  whose  personnel  were  at  the  time  being 
held  hostage  by  the  RUF).  The  element  of  morality — or  perceived  legitimacy — was 
undoubtedly  present,  and  the  operation  was  lawful  on  the  basis  that  it  was  a  limited 
humanitarian  intervention  for  the  protection  of  UK  nationals  and  others  for 
whom  the  United  Kingdom  had  consular  responsibilities;  but  its  legality  qua  stabil- 
ity operation  cannot  be  conclusively  affirmed. 

Stability  Operations  and  the  International  Law  of  Armed  Conflict 

Just  as  stability  operations  are  not  mentioned  in  the  international  law  governing 
the  use  of  force,  so,  as  a  military  doctrinal  concept  rather  than  a  legal  construct  as 
such,  they  are  equally  absent  from  the  international  LOAC.  To  the  extent  that  sta- 
bility operations  do  not  involve  any  actual  armed  hostilities,  in  their  peaceful  and 
civilian  aspects,  they  evidently  are  not  governed  by  the  LOAC  at  all.  The  LOAC  ap- 
plies only  in  armed  conflicts,  which  are  generically  defined  in  customary  interna- 
tional law  as  existing 

whenever  there  is  a  resort  to  armed  force  between  States  or  protracted  armed  violence 
between  governmental  authorities  and  organized  armed  groups  or  between  such 
groups  within  a  State.  International  humanitarian  law  applies  from  the  initiation  of 
such  armed  conflicts  and  extends  beyond  the  cessation  of  hostilities  until  a  general 
conclusion  of  peace  is  reached;  or,  in  the  case  of  internal  conflicts,  a  peaceful  settlement 
is  achieved.  Until  that  moment,  international  humanitarian  law  continues  to  apply  in 
the  whole  territory  of  the  warring  States  or,  in  the  case  of  internal  conflicts,  the  whole 
territory  under  the  control  of  a  party  [to  the  conflict],  whether  or  not  actual  combat 
takes  place  there.54 

It  would  seem  very  clear,  from  the  above  descriptors,  that  an  armed  conflict 
continues  to  take  place  in  certain  parts  of  Afghanistan  (primarily  the  south  and  east 
of  the  country)  between  the  ANA  and  ISAF  on  the  one  hand,  and  insurgents 
(mostly  Taliban)  on  the  other.  The  law  which  governs  the  behavior  of  ISAF  troops 
in  other  parts  of  the  country,  which  have  seen  relatively  sustained  peace  for  some 
time  now,  will  be  considered  further  below.  But  to  the  extent  that  an  armed  conflict 
is  taking  place  in  certain  parts  of  Afghanistan,  it  is  governed  by  the  LOAC  and  it  is 
necessary  to  consider  what  type  of  conflict  that  might  constitute,  as  the  applicable 
rules  differ  to  some  extent  between  international  and  non-international  armed 
conflicts. 

International  armed  conflicts  are  defined  in  Common  Article  2  of  the  1949 
Geneva  Conventions  as 


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all  cases  of  declared  war  or  of  any  other  armed  conflict  which  may  arise  between  two  or 
more  of  the  High  Contracting  Parties,  even  if  the  state  of  war  is  not  recognized  by  one 
of  them  .  .  .  [and]  all  cases  of  partial  or  total  occupation  of  the  territory  of  a  High 
Contracting  Party,  even  if  the  said  occupation  meets  with  no  armed  resistance. 

There  is  patently  no  armed  conflict  between  two  or  more  States  in  Afghanistan, 
since  ISAF  forces  are  present  in  the  territory  at  the  invitation  of  the  State  itself  and 
are  assisting  the  State  against  the  insurgents.  Nor  could  it  conceivably  be  said  that 
there  is  a  "partial  or  total  occupation  of  the  territory"  by  ISAF,  since  that  would 
require  that  the  territory  be  under  the  effective  control  of  the  occupier,  either  fol- 
lowing the  complete  defeat  of  the  lawful  sovereign  (debellatio)  or  because  the  in- 
vading force  has  temporarily  asserted  its  authority  over  the  territory  (belligerent 
occupation).  In  Afghanistan,  ISAF  has  not  occupied  the  territory  belligerently  vis- 
a-vis the  current  Afghan  government,  with  which  it  is  allied;  and  in  those  areas 
where  it  operates,  it  does  so  emphatically  in  support  of  the  Afghan  government  and 
not  on  its  own  account. 

Protocol  I  Additional  to  the  Geneva  Conventions  in  1977  extended  the  scope  of 
application  in  respect  to  international  armed  conflicts  to  "armed  conflicts  in  which 
peoples  are  fighting  against  colonial  domination  and  alien  occupation  and  against 
racist  regimes  in  the  exercise  of  their  right  to  self-determination."55  Article  96(3) 
then  provides  for  an  "authority  representing  a  people  engaged  against  a  high  con- 
tracting party  in  an  armed  conflict  of  the  type  referred  to  in  [Article  1  (4)  ] "  to  make 
a  unilateral  declaration  undertaking  to  apply  the  Geneva  Conventions  and  Addi- 
tional Protocol  I.  The  Taliban  has  not  sought  to  take  advantage  of  these  provisions, 
and  even  if  it  did,  the  argument  could  be  defeated  easily  enough  on  the  basis  that 
the  rights  and  obligations  of  the  1949  Conventions  and  the  1977  Additional  Proto- 
col only  take  effect  following  a  unilateral  declaration  under  Article  96(3)  on  a  basis 
of  reciprocity,  i.e.,  the  high  contracting  party  in  question  must  also  have  assumed 
the  same  rights  and  obligations  under  the  same  instruments.  In  the  case  of  Afghan- 
istan, the  State  is  not  a  party  to  Additional  Protocol  I,  and  it  is  hard  to  see  how  these 
provisions  could  be  binding  upon  ISAF  States,  even  to  the  extent  that  (like  the 
United  Kingdom)  they  are  parties  to  the  Protocol. 

If  a  conflict  is  not  international  in  nature,  then  it  must — if  only  by  default — be 
non-international  in  nature.  Non-international  armed  conflicts  are  defined  in  Com- 
mon Article  3  of  the  Geneva  Conventions  as  "armed  conflict  [s]  not  of  an  interna- 
tional character  occurring  in  the  territory  of  one  of  the  High  Contracting  Parties," 
which  is  essentially  a  negative  definition.  The  notoriously  high  threshold  of  appli- 
cation for  1977  Additional  Protocol  II  further  requires  that  the  conflict  be 


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Stability  Operations  and  Public  International  Law 

in  the  territory  of  a  High  Contracting  Party  between  its  armed  forces  and  dissident 
armed  forces  or  other  organized  armed  groups  which,  under  responsible  command, 
exercise  such  control  over  a  part  of  its  territory  as  to  enable  them  to  carry  out  sustained 
and  concerted  military  operations  and  to  implement  this  Protocol.56 

Quite  apart  from  the  fact  that  Afghanistan  is  not  a  high  contracting  party  to  Addi- 
tional Protocol  II,  it  is  doubtful,  in  any  case,  whether  the  conditions  for  the  applica- 
bility of  the  Protocol  would  be  met  by  the  present  stability  operations  in 
Afghanistan.  Article  1(1)  refers  only  to  the  armed  forces  of  the  high  contracting 
party  on  its  own  territory,  which  would  not  cover  ISAF;  and  while  the  Taliban  un- 
doubtedly does  have  control  of  some  territory  and  carries  out  "sustained  and  con- 
certed military  operations,"  it  is  most  unlikely  that  it  could  be  considered  to  be 
"under  responsible  command"  and  it  has  given  no  sign  of  willingness  to  imple- 
ment the  Protocol. 

The  default  position  under  the  treaties  that  constitute  the  bulk  of  the  LOAC — 
particularly  the  Geneva  Conventions  and  their  Additional  Protocols — would 
therefore  seem  to  be  that  stability  operations  in  Afghanistan  that  involve  "resort  to 
armed  force  ...  or  protracted  armed  violence"  in  terms  of  the  Tadic  formulation57 
are  neither  an  international  nor  a  non-international  armed  conflict,  properly 
speaking.  Instead,  they  amount  to  "armed  conflict  not  of  an  international  charac- 
ter" in  terms  of  Common  Article  3.58  The  trouble  with  that  approach,  logical 
though  it  may  be  on  the  text  of  the  treaties,  is  that  Common  Article  3,  being  the 
"minimum  yardstick"  for  humanitarian  protection  in  all  armed  conflicts,  as  recog- 
nized by  the  International  Court  of  Justice  in  the  Nicaragua  case,59  is  notoriously 
vague,  imprecise  and  of  the  utmost  generality.  It  is  for  this  reason  that  the  recent 
approach  of  the  Supreme  Court  of  Israel,  to  the  effect  that  Israeli  military  opera- 
tions against  Palestinian  militants  are  subject  to  the  law  of  international  armed 
conflicts,60  is  in  the  opinion  of  the  present  author  much  to  be  preferred. 

The  main  basis  for  this  finding,  that  the  military  capabilities  of  Palestinian  mili- 
tant organizations  are  such  as  to  equate  their  threat  with  that  which  might  emanate 
from  a  State's  armed  forces,  is  at  least  as  true  in  respect  to  the  Taliban  as  it  is  in  re- 
spect to  Hamas.  The  Israeli  court  also  concluded  that  the  conflict  between  Israel 
and  the  Palestinians  should  be  treated  as  international  in  nature  for  the  purposes  of 
the  LOAC  on  the  basis  of  the  transnational  nature  of  the  military  operations  in 
question:  they  were  crossing  the  internationally  recognized  frontiers  of  the  State  of 
Israel  and  were  related  to  the  context  of  Israel's  belligerent  occupation  of  the  Pales- 
tinian territories  since  1967.61  Although,  as  noted  above,  the  aspect  of  belligerent 
occupation  is  not  relevant  in  the  case  of  ISAF  and  Afghanistan,  the  fact  of  deploy- 
ment of  NATO  troops  across  international  frontiers  in  the  territory  of  another 


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David  Turns 


State  could,  by  analogy,  arguably  be  sufficient  to  bring  ISAF  stability  operations 
within  the  dictum  of  the  Israeli  court. 

In  light  of  the  above  theoretical  observations,  what  practical  conclusions  maybe 
drawn  as  to  the  LOAC  rules  or  principles  to  be  applied  by  ISAF  during  combat  op- 
erations in  Afghanistan?  In  respect  to  the  conduct  of  hostilities  by  ISAF  troops,  the 
force  commander  has  recently  directed  that "  [a]  11  responses  [to  clear  and  identified 
danger]  must  be  proportionate  and  the  utmost  of  care  [sic]  should  be  taken  to  min- 
imize any  damage."62  No  doubt  sensitive  to  recurrent  Afghan  complaints  of  exces- 
sive collateral  damage  caused  by  airstrikes,  he  added: 

We  are  engaged  in  a  counterinsurgency  in  an  extremely  demanding  environment.  We 
are  fighting  an  enemy  that  often  cannot  be  identified  before  he  has  struck  and  then 
once  he  has,  he  hides  among  the  civilian  population.  The  battle  is  often  waged  among 
civilians  and  their  property.  We  must  clearly  apply  and  demonstrate  proportionality, 
requisite  restraint,  and  the  utmost  discrimination  in  our  application  of  firepower.  No 
one  seeks  or  intends  to  constrain  the  inherent  right  of  self  defense  of  every  member  of 
the  ISAF  force.  However,  Commanders  must  focus  upon  the  principles  which  attach  to 
every  use  of  force — be  that  self  defense  or  offensive  fires.  Good  tactical  judgment, 
necessity,  and  proportionality  are  to  drive  every  action  and  engagement;  minimizing 
civilian  casualties  is  of  paramount  importance.63 

If  there  are  difficulties  in  applying  specific  treaty  instruments  of  the  LOAC  to  mul- 
tinational coalition  operations,  the  directive  just  cited,  in  its  emphasis  on  the  fun- 
damental principles  of  necessity,  proportionality  and  discrimination,  suggests  that 
at  a  minimum  the  customary  rules  of  the  LOAC  derived  from  those  principles  are 
applicable.64 

In  respect  to  the  protection  of  victims  and  treatment  of  persons  hors  de  combat, 
it  maybe  suggested  in  line  with  the  above  reasoning  that  Common  Article  3  of  the 
Geneva  Conventions  applies  as  the  "minimum  yardstick"  of  humanitarian 
treatment: 

Persons  taking  no  active  part  in  the  hostilities,  including  members  of  armed  forces  who 
have  laid  down  their  arms  and  those  placed  hors  de  combat  by  sickness,  wounds, 
detention,  or  any  other  cause,  shall  in  all  circumstances  be  treated  humanely,  without 
any  adverse  distinction  founded  on  race,  colour,  religion  or  faith,  sex,  birth  or  wealth, 
or  any  other  similar  criteria. 

Although  there  have  been  reports  recently  of  some  unhappiness  expressed  by  British 
service  personnel  at  the  fact  that  wounded  Taliban  fighters  are  being  treated  in  the 
same  operating  theaters  and  in  the  same  field  hospital  wards  as  wounded  British 
soldiers,65  it  should  be  noted  that  this  is  no  less  than  what  is  required  by  Common 

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Stability  Operations  and  Public  International  Law 

Article  3  and  Articles  12-15  of  Geneva  Convention  I.66  As  regards  civilians,  Article 
4  of  Geneva  Convention  IV  provides  that  "[p]ersons  protected  by  the  Convention 
are  those  who,  at  a  given  moment  and  in  any  manner  whatsoever,  find  themselves, 
in  case  of  a  conflict  or  occupation,  in  the  hands  of  a  Party  to  the  conflict  or  Oc- 
cupying Power  of  which  they  are  not  nationals."  Since  the  stipulation  in  Article  4  is 
disjunctive  ("conflict  or  occupation"),  it  would  seem  clear  that  Afghan  civilians  de- 
tained by  ISAF  troops  could  be  covered  by  its  provisions.  In  respect  to  captured 
Taliban  fighters,  the  simplest  expedient  under  the  scheme  established  in  Geneva 
Convention  III  would  be  either  to  classify  them  as  prisoners  of  war  (POWs)  under 
Article  4(A)(2)  (which  is  most  unlikely  because  of  their  probable  failure  to  satisfy 
the  conditions  stated  therein),  or  to  treat  them  as  if  they  were  POWs  pending  adju- 
dication of  their  status  under  the  LOAC  by  a  competent  tribunal  under  Article  5.67 

The  above  discussion  has  centered  on  the  type  of  armed  conflict,  if  any,  that 
subsists  during  the  present  stability  operations  in  Afghanistan,  and  the  rules  and 
principles  of  the  law  of  armed  conflict  to  be  applied  to  the  conduct  of  ISAF  there- 
under. But  it  is  entirely  possible  that  in  any  given  place  and  at  any  given  time  in  Af- 
ghanistan, the  situation  may  be  stable  and  secure,  and  ISAF  troops  may 
accordingly  not  be  involved  in  any  armed  conflict  at  all  for  the  purposes  of  applica- 
tion of  the  LOAC.  Although  detailed  analysis  of  the  law  applicable  to  ISAF  in  such 
situations  is  essentially  beyond  the  scope  of  this  piece,  recent  case  law  from  the 
United  Kingdom,  arising  from  obligations  under  the  European  Convention  on  Hu- 
man Rights  (ECHR)  as  incorporated  into  UK  domestic  law  by  the  Human  Rights 
Act  1998  (HRA),  requires  that  the  likely  position  should  be  at  least  briefly  noted. 
The  full  implications  of  the  House  of  Lords  decision  in  R  (on  the  application  ofAl- 
Skeini)  v.  Secretary  of  State  for  Defence,6*  already  commented  upon  by  the  present 
author  in  a  previous  edition  of  this  series,69  remain  a  matter  of  some  uncertainty. 
For  all  that,  it  seems  fairly  clear  that  British  troops  deployed  outside  the  United 
Kingdom  on  combat  operations  may  be  subject,  in  certain  circumstances,  to  the 
provisions  of  the  ECHR  and  the  HRA.  However,  none  of  the  cases  decided  so  far  in 
the  British  courts  concerning  the  application  of  human  rights  law  arise  from  the 
specific  situation  of  Afghanistan  and,  indeed,  all  are  materially  distinguishable 
from  the  Afghan  situation  in  one  way  or  another.  The  Al-Skeini  case,  for  example, 
arose  in  the  context  of  British  operations  in  Iraq  at  a  time  when  that  country  was 
generally  recognized  to  be  in  a  state  of  belligerent  occupation;  as  already  indicated 
above,  belligerent  occupation  is  not  relevant  to  Afghanistan  at  all.  In  the  Behrami 
and  Saramati  cases,  the  European  Court  of  Human  Rights  found  certain  actions 
(and,  therefore,  potential  violations  of  the  ECHR)  by  the  multinational  force  in 
Kosovo  since  1999  to  be  directly  imputable  to  the  United  Nations  itself,  rather  than 
to  the  individual  TCNs.  But  that  was  in  the  context  of  an  operation  over  which  the 

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David  Turns 


Security  Council  retained  ultimate  authority  and  control,  with  very  specific  alloca- 
tion of  tasks  (i.e.,  de-mining)  in  the  relevant  Security  Council  resolution  and  in  a 
territory  that  had  neither  sovereignty  nor  effective  government  of  its  own  at  the 
material  time.70  In  Afghanistan,  by  contrast,  the  relevant  resolutions  do  not  allo- 
cate detailed  specific  tasks,  authority  and  control  rests  with  NATO  and  the  North 
Atlantic  Council,  and  Afghanistan  remains  a  sovereign  State  with  a  legitimate  gov- 
ernment. Finally,  two  recent  English  cases71  concerning  liability  for  human  rights 
violations  in  circumstances  where  British  troops  had  actual  custody  of  civilian  de- 
tainees in  Iraq  again  largely  turn  on  detailed  obligations  under  relevant  Security 
Council  resolutions  (which  are  not  applicable  in  the  case  of  Afghanistan),  their  in- 
teraction with  broader  obligations  under  customary  international  law  and  the  ef- 
fect of  Article  103  of  the  UN  Charter.72 

The  Al-Skeini  case  is  currently  on  appeal  to  the  European  Court  of  Human 
Rights  so  its  final  legal  effect  is  likely  to  remain  of  uncertain  scope  and  ambit  for 
some  time  yet.  At  present,  therefore,  the  most  that  can  be  asserted  on  the  basis  of 
current  case  law  is  that  British  forces  on  stability  operations  will  be  required  to  ap- 
ply the  ECHR  and  HRA  if  they  are  in  belligerent  occupation  of  territory  and  to  per- 
sons under  their  effective  control  for  the  purposes  of  jurisdiction  under  the  human 
rights  instruments  (which,  as  the  House  of  Lords  decided  in  Al-Skeinu  is  a  higher 
standard  than  effective  control  under  the  LOAC  and  will  essentially  require  British 
troops  to  have  actual  custody  of  civilian  detainees).  For  reasons  explained  below, 
these  conditions  do  not  obtain  in  current  stability  operations  in  Afghanistan  and 
are  most  unlikely  ever  to  do  so. 

Conclusion:  The  United  Kingdom  and  Stability  Operations 

Every  State  will  take  a  different  view  on  the  determination  of  the  existence  of  a  state 
of  armed  conflict  and  the  nature  thereof.  Generally  the  approach  of  the  United 
Kingdom  is  to  be  as  vague  as  possible  concerning  the  legal  classification  of  military 
operations  in  which  British  forces  are  engaged  and  to  concentrate  instead  on  the  le- 
gal basis  for  such  operations.  Thus,  statements  from  the  British  Ministry  of  De- 
fence on  the  deployment  and  use  of  British  troops  in  Afghanistan  do  not  refer  to 
their  participation  in  an  armed  conflict  in  that  country,  merely  to  the  fact  that  they 
are  present  as  part  of  ISAF  under  the  aegis  of  NATO,  with  a  brief  to  aid  reconstruc- 
tion and  with  the  approval  of  the  UN  Security  Council.73  The  general  position  in 
the  United  Kingdom  is  that  the  determination  of  a  state  of  armed  conflict  is  a  pol- 
icy decision  to  be  made  by  the  government  and  one  that  "depends  upon  the  status 
of  the  parties  to  the  conflict,  and  the  nature  of  the  hostilities."74  Thus,  each  individ- 
ual situation  needs  to  be  examined  separately  on  the  basis  of  its  own  facts — the 

403 


Stability  Operations  and  Public  International  Law 

actors  and  the  nature  of  the  hostilities — to  determine  if  it  amounts  to  an  armed 
conflict  or  not.  This  decision  may  also  be  made  by  the  judiciary  in  the  course  of  le- 
gal proceedings,  if  relevant.75 

As  far  as  the  British  position  on  the  nature  of  an  armed  conflict  is  concerned, 
again  as  a  matter  of  both  law  and  doctrine,  any  such  determination  must  be  done 
on  a  case-by-case  basis,  depending  on  the  facts  in  each  given  situation.76  The  legal 
basis  of  the  decision  for  UK  authorities  will  be  the  international  law  definitions  of 
international  and  non-international  armed  conflicts  referred  to  above,  in  conjunc- 
tion with  the  facts  on  the  ground.  If  British  forces  are  in  action  against  the  govern- 
ment or  other  official  forces  of  any  other  State,  the  situation  will  be  classified  as  one 
of  international  armed  conflict — a  decision  made  all  the  easier  by  the  fact  that  vir- 
tually every  State  in  the  world  is  now  a  high  contracting  party  to  the  Geneva  Con- 
ventions. In  any  other  situation  in  which  British  troops  are  deployed,  the  situation 
will  be  regarded  as  one  of  de  facto  non-international  armed  conflict.  Thus,  from 
the  official  point  of  view  of  the  United  Kingdom,  the  ongoing  hostilities  in  Afghan- 
istan and  Iraq  are  in  effect  treated  as  internal  conflicts  in  which  UK  forces  are  par- 
ticipating on  the  side  of  the  governments  of  those  States.  The  conflict  in 
Afghanistan  after  the  removal  of  the  Taliban  from  de  facto  power  in  December 
2001  is  not  considered  to  be  a  conflict  between  the  British  and  Afghan  States;  it  is 
between  Afghan  insurgents  and  the  Afghan  State,  and  the  latter  (with  the  sanction 
of  the  UN  Security  Council)  invited  British  troops,  along  with  those  of  other 
NATO  States,  to  assist  it  in  combating  the  insurgency,  maintaining  or  restoring  law 
and  order,  and  assisting  with  reconstruction  and  development. 

Although  this  position  might  seem  counterintuitive — how  can  forces  of  one 
State  be  engaged  in  hostilities  in  another  State,  against  foreign  nationals,  yet  the 
conflict  not  be  regarded  as  an  international  one? — it  is  in  fact  not  devoid  of  sense 
from  a  strictly  legal  perspective.  If  the  British  and  Afghan  States  are  not  at  war  with 
each  other,  but  there  is  a  conflict  going  on  in  Afghanistan,  it  cannot  be  interna- 
tional according  to  the  definitions  in  the  Geneva  Conventions  or  Additional  Pro- 
tocol I;  therefore,  by  default,  it  must  be  "not  international."  Whether  it  is  then 
governed  by  Common  Article  3  or  by  Additional  Protocol  II  will  depend,  as  far  as 
British  authorities  are  concerned,  on  whether  the  non-State  party  to  the  conflict  is 
fighting  under  responsible  command,  has  control  of  territory  and  is  able  to  imple- 
ment Additional  Protocol  II.77  Again,  this  will  be  a  policy  decision  made  by  the 
government.78 

As  for  the  specific  rules  of  law  applicable  to  British  forces  in  Afghanistan,  if  those 
forces  are  engaged  in  actual  armed  hostilities,  particular  rules  of  the  LOAC  will  ap- 
ply as  above.  In  respect  to  targeting  operations,  the  United  Kingdom  as  a  matter  of 
policy  applies  the  rules  concerning  target  selection  and  precautions  in  attack  that 

404 


David  Turns 


are  contained  in  Additional  Protocol  I  to  all  military  operations,  irrespective  of  the 
classification  of  the  armed  conflict  in  question.79  In  respect  to  detainees,  given  the 
UN  mandate  and  the  general  context  of  stability  operations  in  Afghanistan,  British 
policy  is  to  surrender  all  detainees  to  the  Afghan  authorities  as  quickly  as  possible 
after  processing.80  This  latter  policy  may  in  due  course  be  exposed  to  legal  chal- 
lenge, on  the  basis  of  concerns  that  the  detainees'  human  rights  maybe  violated  in 
Afghan  custody  and  in  light  of  the  UK's  obligation  of  non-refoulement  under  the 
ECHR,  as  discussed  particularly  in  the  very  recent  decision  in  Al-Saadoon  and 
Mufdhi.*1 

Finally,  is  should  be  borne  in  mind  that  under  the  military  law  of  the  United 
Kingdom,82  British  troops  remain  subject  to  the  ordinary  criminal  law  of  the  land 
wherever  in  the  world  they  may  be  deployed  and  irrespective  of  whether  or  not 
they  are  deployed  in  a  situation  of  armed  conflict.  Throughout  the  so-called 
"Troubles"  in  Northern  Ireland  (1969-2007),  the  use  of  force  by  British  troops 
providing  support  to  the  civil  authority  was  regulated  by  the  ordinary  criminal  law, 
resulting  in  periodic  trials  of  individual  British  soldiers  (who  had  been  accused  of 
using  excessive  force)  on  charges  of  murder  or  manslaughter.  The  same  principles 
apply  when  the  deployment  is  to  a  territory  outside  the  United  Kingdom.  In  Bid  v. 
Ministry  of  Defence,83  it  was  accepted  in  principle  that  aspects  of  civil  law — notably 
the  torts  of  negligence  and  trespass  to  the  person — could  also  be  applicable  in  situ- 
ations where  British  troops  deployed  on  certain  types  of  operation  abroad  could  be 
shown  to  have  a  duty  of  care  toward  any  persons  killed  or  wounded  as  a  result  of 
their  actions.  It  was  emphasized  that  this  will  not  be  the  case  in  full  combat  opera- 
tions,84 but  it  may  very  well  turn  out  to  be  relevant  to  stability  operations. 

Notes 

1 .  UNOSOM II  was  created  by  the  UN  Security  Council  with  a  remarkably  broad  mandate 
that  encompassed  humanitarian  relief  operations  in  Somalia,  disarming  the  various  militias,  re- 
storing law  and  order,  and  assisting  in  the  establishment  of  a  representative  government  and  in 
the  restoration  of  infrastructure.  S.C.  Res.  814,  U.N.  Doc.  S/RES/814  (Mar.  26, 1993).  The  mis- 
sion was  violently  opposed  by  the  Somali  militias  from  the  outset  and  US  troops  were  withdrawn 
from  the  operation  after  American  public  opinion  turned  decisively  against  their  continued  in- 
volvement as  a  result  of  the  deaths  of  eighteen  US  soldiers  and  the  wounding  of  another  eighty- 
three  in  the  so-called  First  Battle  of  Mogadishu  in  October  1993. 

2.  Following  a  military  coup  displacing  a  democratically  elected  civilian  government  and 
ensuing  political  repression  which  resulted  in  an  exodus  of  Haitian  refugees  across  the  Caribbean 
Sea  toward  the  United  States,  the  Security  Council  authorized  the  establishment  of  a  US-led 
Multinational  Interim  Force  "to  use  all  necessary  means  to  facilitate  the  departure  from  Haiti  of 
the  military  leadership, ...  the  prompt  return  of  the  legitimately  elected  President  and  the  resto- 
ration of  the  legitimate  authorities  of  the  Government  of  Haiti,  and  to  establish  and  maintain  a 
secure  and  stable  environment."  S.C.  Res.  940,  U.N.  Doc.  S/RES/940  (July  31,  1994). 

405 


Stability  Operations  and  Public  International  Law 

3.  Commission  on  Presidential  Debates,  The  Second  Gore-Bush  Presidential  Debate  (Oct. 
11,  2000),  available  at  http://www.debates.org/pages/trans2000b.html. 

4.  US  Department  of  Defense,  Directive  3000.05,  Military  Support  for  Stability,  Security, 
Transition,  and  Reconstruction  (SSTR)  Operations  para.  4.1  (Nov.  28, 2005),  available  at  http:// 
www.dtic.mil/whs/directives/corres/pdf/300005p.pdf  [hereinafter  DoD  Directive  3000.05].  See 
also  Bob  Hubner,  Developing  Joint  Stability  Operations  Doctrine,  A  COMMON  PERSPECTIVE  (Oct. 
2004),  at  9. 

5.  E.g. ,  Robert  M.  Cassidy,  The  British  Army  and  Counterinsurgency:  The  Salience  of  Military 
Culture,  MILITARY  REVIEW  (May-June  2005),  at  53,  59. 

6.  United  Kingdom  Ministry  of  Defence,  Joint  Doctrine  Publication  3-40,  Security  and  Sta- 
bilisation: The  Military  Contribution  (as  of  January  2009  available  only  on  a  restricted  basis  for 
consultation  and  discussion  purposes,  not  yet  adopted  as  an  official  document  and  with  no  offi- 
cial standing). 

7.  Resolution  on  Stabilisation  of  Afghanistan:  Challenges  for  the  EU  and  the  International 
Community  para.  2,  EUROPEAN  PARLIAMENT,  Doc.  P6_TA(2008)0337  (July  8,  2008). 

8.  Id.,  para.  19. 

9.  See  Peter  W.  Chiarelli  &  Patrick  R.  Michaelis,  Winning  the  Peace:  The  Requirement  for 
Full-Spectrum  Operations,  MILITARY  REVIEW  (July-August  2005),  at  4. 

10.  US  Defense  Secretary  Donald  Rumsfeld  declared  an  end  to  "major  combat"  in  Afghani- 
stan on  May  1, 2003.  Kenneth  Katzman,  Congressional  Research  Service,  Afghanistan:  Post-War 
Governance,  Security,  and  U.S.  Policy,  No.  RL30588  (Nov.  26,  2008),  at  7,  available  at  http:// 
assets.opencrs.com/rpts/RL30588_20081126.pdf.  On  the  actual  combat  situation  in  Afghani- 
stan, see  id.  at  22-25. 

1 1 .  The  term  "war"  has,  of  course,  been  largely  replaced  in  international  legal  discourse  since 
1945  with  the  term  "armed  conflict."  This  terminological  shift  was  connected  initially  with  the 
development  of  the  UN  Charter  and  its  move  to  outlaw  any  use  of  force  that  did  not  constitute 
either  an  act  of  self-defense  or  an  enforcement  action  under  Chapter  VII  of  the  Charter.  With  the 
changing  nature  of  warfare  in  the  international  relations  context,  it  also  came  increasingly  to  re- 
flect the  reality  that  most  conflicts  were  no  longer  being  fought  between  States;  and  even  when 
they  were,  the  States  concerned  were  no  longer  willing  formally  to  declare  war  on  each  other,  but 
preferred  to  maintain  a  status  mixtus  of  neither  war  nor  peace.  In  the  jus  in  hello,  the  term  "armed 
conflict"  was  also  explicitly  enshrined  in  the  language  of  the  1949  Geneva  Conventions  and,  sub- 
sequently, their  Additional  Protocols.  (Although,  as  discussed  later  in  this  article,  the  1949  in- 
struments did  retain  the  concept  of  "declared  war"  as  part  of  their  scope  of  application.  See,  e.g., 
Convention  for  the  Amelioration  of  the  Condition  of  the  Wounded  and  Sick  in  Armed  Forces  in 
the  Field  art.  2,  Aug.  12,  1949,  6  U.S.T.  3114,  75  U.N.T.S.  31,  reprinted  in  DOCUMENTS  ON  THE 
LAWS  OF  WAR  197, 198  (Adam  Roberts  8c  Richard  Guelff  eds.,  3d  ed.  2000)).  For  elaboration  and 
discussion  of  these  trends,  see  Georg  Schwarzenberger,  Jus  Pads  ac  Belli?  Prolegomena  to  a  Sociol- 
ogy of  International  Law,  37  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  460,  465-74  (1943); 
Robert  W.  Tucker,  The  Interpretation  of  War  Under  Present  International  Law,  4 
INTERNATIONAL  LAW  QUARTERLY  1 1  (1951);  Philip  C.  Jessup,  Should  international  law  recog- 
nize an  intermediate  status  between  peace  and  war?,  48  AMERICAN  JOURNAL  OF  INTERNATIONAL 
LAW  98  (1954);  Christopher  Greenwood,  Scope  of  Application  of  Humanitarian  Law,  in  THE 
Handbook  of  Humanitarian  Law  in  Armed  Conflicts  39, 39-45  (Dieter  Fleck  ed.,  1995); 
Leslie  C.  Green,  The  Contemporary  Law  of  Armed  Conflict  70-75  (2000). 

1 2.  See  Nina  M.  Serafino,  Congressional  Research  Service,  Peacekeeping  and  Related  Stability 
Operations:  Issues  of  U.S.  Military  Involvement,  No.  RL33557  (Jan.  24,  2007),  at  6,  available  at 
http://assets.opencrs.com/rpts/RL33557_20070124.pdf. 


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David  Turns 


13.  Id. 

14.  DoD  Directive  3000.05,  supra  note  4,  para.  3.1. 

15.  Chairman  of  the  Joint  Chiefs  of  Staff,  Joint  Publication  3-0,  Doctrine  for  Joint  Operations, 
at  V-l  (Sept.  2006,  with  change  1,  Feb.  13,  2008),  available  at  http://www.dtic.mil/doctrine/jel/ 
new_pubs/jp3_0.pdf. 

16.  Headquarters,  Department  of  the  Army,  FM  3-07,  Stability  Operations  (2008),  available 
at  http://downloads.army.mil/docs/fm_3-07.pdf. 

1 7.  General  Sir  Richard  Dannatt,  Chief  of  the  General  Staff,  Address  to  the  Institute  for  Public  Policy 
Research,  London  (Jan.  19,  2009),  available  at  http://www.mod.uk/DefenceInternet/AboutDefence/ 
People/Speeches/ChiefStaff/20090 1 1 9AddressTolTieInstimteForPubHcPoUcyResearchLondon.htm. 

18.  Id. 

19.  See  US  Department  of  Defense,  Quadrennial  Defense  Review  Report  v,  9-18  (2006). 

20.  Agreement  on  Provisional  Arrangements  in  Afghanistan  Pending  the  Re- establishment 
of  Permanent  Government  Institutions,  attached  to  Letter  from  the  Secretary-General  addressed 
to  the  President  of  the  Security  Council,  U.N.  Doc.  S/2001/1 154  (Dec.  5,  2001). 

21.  Id.,  Annex  I,  paras.  3-4. 

22.  Letter  dated  19  December  2001  from  the  Permanent  Representative  of  Afghanistan  to 
the  United  Nations  addressed  to  the  President  of  the  Security  Council,  U.N.  Doc.  S/2001/1223 
(Dec.  19,  2001),  Annex. 

23.  Letter  from  the  Permanent  Representative  of  the  United  Kingdom  of  Great  Britain  and 
Northern  Ireland  to  the  United  Nations  addressed  to  the  President  of  the  Security  Council,  U.N. 
Doc.  S/2001/1217  (Dec.  19,  2001),  Annex. 

24.  Id. 

25.  Id. 

26.  S.C.  Res.  1386,  operative  para.  1,  U.N.  Doc.  S/RES/1386  (Dec.  20,  2001). 

27.  Id. 

28.  Id.,  operative  para.  10. 

29.  Id.,  operative  para.  3. 

30.  S.C.  Res.  83,  U.N.  Doc.  S/RES/83  (June  27,  1950). 

31.  S.C.  Res.  143,  operative  para.  2,  U.N.  Doc.  S/RES/143  (July  17, 1960). 

32.  S.C.  Res.  161,  operative  para.  1,  U.N.  Doc.  S/RES/161  (Feb.  21,  1961);  this  was  supple- 
mented by  S.C.  Res.  169,  operative  para.  4,  U.N.  Doc.  S/RES/169  (Nov.  24, 1961). 

33.  See  S.C.  Res.  1542,  U.N.  Doc.  S/RES/1542  (Apr.  30,  2004). 

34.  Id.,  operative  para.  7  (I — III). 

35.  Id.,  operative  para.  9. 

36.  See  BBC  News,  UN  peacekeepers  storm  Haiti  slum  (Dec.  15,  2004),  http://news.bbc.co 
.uk/1  /hi/wo rld/americas/4096841.stm;  United  Nations  Stabilization  Mission  in  Haiti,  Statement 
Relating  to  the  Operation  Conducted  on  06  July  2005  at  Cite  Soleil,  available  at  http:// 
www.un.org/Depts/dpko/missions/minustah/pb060705e.pdf  (last  visited  Feb.  19,  2009);  An- 
drew Buncombe,  UN  admits  civilians  may  have  died  in  Haiti  peacekeeping  raid,  THE  INDEPEND- 
ENT (London),  Jan.  10,  2006,  at  25,  available  at  http://www.independent.co.uk/news/world/ 
americas/un-admits-civilians-may-have-died-in-haiti-peacekeeping-raid-5223 17.html. 

37.  Letter  from  the  Secretary- General  of  the  North  Atlantic  Treaty  Organization  addressed 
to  the  Secretary-General,  Annex  I,  U.N.  Doc.  S/2003/970  (Oct.  2,  2003). 

38.  Letter  from  the  Minister  for  Foreign  Affairs  of  Afghanistan  addressed  to  the  Secretary- 
General,  attached  to  U.N.  Doc.  S/2003/986  (Oct.  10,  2003). 

39.  S.C.  Res.  1510,  U.N.  Doc.  S/RES/1510  (Oct.  13,  2003). 

40.  S.C.  Res.  1833,  U.N.  Doc.  S/RES/1833  (Sept.  22,  2008). 


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Stability  Operations  and  Public  International  Law 

41.  NATO  Topics,  NATO's  Role  in  Afghanistan,  http://www.nato.int/issues/afghanistan/ 
index.html  (last  visited  Feb.  19,  2009). 

42.  According  to  the  British  Foreign  &  Commonwealth  Office,  PRTs 

embody  a  joint  military  and  civilian  approach  to  stabilising  Afghanistan They  bring 

together  civilian  and  police  experts,  under  the  security  umbrella  provided  by  the 
military,  to  help  extend  the  authority  of  the  Afghan  central  government  and  help  to 
facilitate  development  and  reconstruction.  PRTs  also  aim  to  support  the  reform  of  the 
Afghan  security  sector .... 

FCO,  Provincial  Reconstruction  Teams,  http://www.fco.gov.uk/en/fco-in-action/uk-in-afghanistan/ 
security/prt/  (last  visited  Feb.  19,  2009). 

43.  See  Press  and  Media  Service,  NATO  HQ  Brussels,  Fact  Sheet,  Operational  Mentor  and 
Liaison  Team  (OMLT)  Programme  -  October  2008,  available  at  http://www.nato.int/isaf/topics/ 
factsheets/omlt-factsheet.pdf  (last  visited  Feb.  19,  2009). 

44.  NATO,  ISAF  Mandate,  available  at  http://www.nato.int/isaf/topics/mandate/index 
.html  (last  visited  Feb.  19,  2009). 

45.  See  UK  Ministry  of  Defence,  Defence  Factsheet,  Operations  in  Afghanistan:  Background 
Briefing  2,  available  at  http://www.mod.uk/DefenceInternet/FactSheets/OperationsFactsheets/ 
OperationsInAfghanistanBackgroundBriefing2.htm  (last  visited  Feb.  19,  2009). 

46.  See  Jared  Tracy,  Ethical  Challenges  in  Stability  Operations,  MILITARY  REVIEW  (Jan.-Feb. 
2009),  at  86.  Tracy's  article  asserts,  correctly,  that  Just  War  doctrine  is  of  no  use  to  consideration 
of  the  jus  ad  bellum  of  stability  operations,  because  it  only  covers  the  rationale  for  going  to  war  in 
the  first  place,  while  "there  is  nothing  in  jus  in  bello  that  compels  the  victorious  nation  to  provide 
security,  rebuild  infrastructure,  improve  public  services,  and  see  to  the  establishment  of  a  demo- 
cratic form  of  government."  Id.  at  86.  In  consequence,  Tracy  posits  that  morality,  rather  than 
law,  must  be  the  basis  of  ethical  understandings  about  what  the  military  should  or  should  not  do 
in  post-conflict  operations.  While  I  agree  with  Tracy  that  morality  plays  a  part  in  contemporary 
military  thinking,  especially  in  situations  as  complex  as  that  of  Afghanistan,  I  consider  that  a 
strictly  legal  basis  for  stability  operations  does  (and,  indeed,  must)  exist. 

47.  See  Kwaku  Nuamah  &  I.  William  Zartman,  Intervention  in  Sierra  Leone,  in  MILITARY 
INTERVENTION:  CASES  IN  CONTEXT  FOR  THE  TWENTY-FIRST  CENTURY  133,  145-49  (William  J. 
Lahneman  ed.,  2004);  Eric  G.  Berman  &  Melissa  T.  Labonte,  Sierra  Leone,  in  TWENTY-FlRST- 
Century  Peace  Operations  141, 181-82  (William  J.  Durch  ed.,  2006). 

48.  See  Hansard  (HC  Debs)  vol.  349,  cols.  518-29  (May  8,  2000). 

49.  See  Hansard  (HL  Debs)  vol.  612,  cols.  1233-40  (May  8,  2000). 

50.  See  U.N.  Doc.  S/PV.4139  (May  11,  2000). 

51.  Id.  at  8  (Canada),  9  (Malaysia),  11  (United  States),  14  (Namibia),  15  (Argentina),  18 
(Ukraine  8c  France)  and  22  (Portugal).  Portugal  did  not  have  a  seat  on  the  Council  at  the  time 
and  attended  as  the  representative  of  the  European  Union. 

52.  Id.  at  3. 

53.  Statement  by  the  President  of  the  Security  Council,  U.N.  Doc.  S/PRST/2000/14  (May  4, 
2000). 

54.  Prosecutor  v.  Tadic,  Case  No.  IT-94- 1  - 1 ,  Decision  on  Defence  Motion  for  Interlocutory 
Appeal  on  Jurisdiction,  para.  70  (Oct.  2,  1995). 

55.  Protocol  Additional  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  International  Armed  Conflicts  art.  1(4),  June  8,  1977, 1125  U.N.T.S.  3, 
reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  1 1,  at  422,  423. 

56.  Protocol  Additional  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  Non-International  Armed  Conflicts  art.  1(1),  June  8,  1977,  1125 

408 


David  Turns 


U.N.T.S.  609,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  1 1,  at  483, 484  [here- 
inafter Additional  Protocol  II]. 

57.  Supra  note  54. 

58.  This  is  the  default  position  supported  by  a  plurality  of  the  US  Supreme  Court,  in  relation 
to  the  treatment  of  detainees  captured  in  the  "Global  War  on  Terror"  (including  in  the  Afghan 
theater  of  operations).  Hamdan  v.  Rumsfeld,  548  U.S.  557  (2006). 

59.  Military  and  Paramilitary  Activities  (Nicar.  v.  U.S.),  1986  I.C.J.  14,  para.  218  (June  27). 
In  Tadic,  the  International  Criminal  Tribunal  for  the  former  Yugoslavia  also  held  that  "the  char- 
acter of  the  conflict  is  irrelevant"  in  terms  of  the  application  of  Common  Article  3.  Tadic,  supra 
note  54,  para.  102. 

60.  Public  Committee  Against  Torture  in  Israel  et  al.  v.  Government  of  Israel  et  al.,  HCJ  769/ 
02,  Judgment,  para.  21  (Dec.  13,  2006),  available  at  http://elyonl.court.gov.il/files_eng/02/690/ 
007/a34/02007690.a34.pdf. 

61.  I<£,  para.  18. 

62.  Headquarters,  International  Security  Assistance  Force,  Tactical  Directive  para.  4(a) 
(Dec.  30,  2008),  available  at  http://www.nato.int/isaf/docu/official_texts/Tactical%20Directive 
_090114.pdf. 

63.  Id.,  para.  5. 

64.  See  JEAN-MARIE  HENCKAERTS  &  LOUISE  DOSWALD-BECK,  CUSTOMARY  INTER- 
NATIONAL HUMANITARIAN  LAW  (2005)  (2  volumes:  Volume  I,  Rules;  Volume  II,  Practice  (2 
Parts)).  Part  I  of  the  Rules  ("The  Principle  of  Distinction")  contains  many  asserted  customary 
rules  of  the  LOAC  that  would  be  relevant  to  the  conduct  of  hostilities  by  ISAF.  These  relate  to  the 
distinction  between  civilians  and  civilian  objects  on  the  one  hand,  and  combatants  and  military 
objectives  on  the  other  (Rules  1-10);  indiscriminate  attacks  (Rules  1 1-13);  proportionality  (Rule 
14);  precautions  in  attack  (Rules  15-21);  and  precautions  against  the  effects  of  attacks  (Rules  22- 
24).  Id.  at  3-76. 

65.  See  Jo  Adetunji,  MoD  defends  hospital  treatment  for  Taliban,  THE  GUARDIAN  (London), 
Jan.  23, 2009,  at  2,  available  at  http://www.guardian.co.uk/uk/2009/jan/23/military-afghanistan. 

66.  At  the  time  of  writing,  a  Canadian  officer  is  to  face  a  court-martial  on  a  charge  of  ille- 
gally shooting  a  wounded  and  disarmed  Taliban  fighter  in  Afghanistan.  Sean  Chase,  Canadian  sol- 
dier granted  bail,  THE  INTELLIGENCER,  http://www.intelligencer.ca/ArticleDisplay.aspx?e= 
1377810&auth=SEAN%20CHASE,%20SUN%20MEDIA  (last  visited  Feb.  19,  2009). 

67.  Although  see  further  infra,  text  to  note  80,  concerning  British  practice  in  regard  to 
persons  detained  by  British  forces  in  Afghanistan.  The  treatment  of  captured  persons  in 
Afghanistan  has  been  the  source  of  much  controversy  among  the  ISAF  TCNs.  See,  e.g.,  Vincent 
Morelli,  Congressional  Research  Service,  NATO  in  Afghanistan:  A  Test  for  the  Transatlantic  Alliance, 
No.  RL33627  (Oct.  23,  2008),  at  16-17,  available  at  http://assets.opencrs.com/rpts/RL33627 
_20081023.pdf.  This  dissension  has,  moreover,  been  present  from  the  outset  of  OEF,  also  in  re- 
gard to  the  classification  of  such  prisoners  upon  capture.  See  Robert  Cryer,  The  Fine  Art  of 
Friendship:  Jus  in  Bello  in  Afghanistan,  7  JOURNAL  OF  CONFLICT  &  SECURITY  LAW  37,  68-82 
(2002). 

68.  [2008]  1  APPEAL  CASES  153. 

69.  See  David  Turns,  The  Treatment  of  Detainees  and  the  "Global  War  on  Terror":  Selected  Le- 
gal Issues,  in  INTERNATIONAL  LAW  AND  MILITARY  OPERATIONS  199  (Michael  D.  Carsten  ed., 
2008)  (Vol.  84,  US  Naval  War  College  International  Law  Studies). 

70.  Behrami  v.  France  and  Saramati  v.  France,  Germany  and  Norway,  45  E.Ct.  H.R.  41 
(2007). 


409 


Stability  Operations  and  Public  International  Law 

71.  R  (on  the  application  of  Al-Jedda)  v.  Secretary  of  State  for  Defence  [2008]  1  APPEAL 
CASES  332;  R  (on  the  application  of  Al-Saadoon  and  Mufdhi)  v.  Secretary  of  State  for  Defence 
[2008]  ENGLAND  &  WALES  HIGH  COURT  3098. 

72.  Whereby  obligations  arising  under  the  Charter,  such  as  those  consequent  upon  manda- 
tory Chapter  VII  resolutions  of  the  Security  Council,  override  inconsistent  obligations  arising 
from  other  international  agreements. 

73.  E.g.,  Adam  Ingram,  Minister  of  State,  UK  Military  Operations  in  Afghanistan,  Remarks 
to  the  All-Party  Parliamentary  Army  Group  (Oct.  24,  2006),  available  at  http://www.mod.uk/ 
Defencelnternet/AboutDefence/People/Speeches/MinAF/UkMilitaryOperationsInAfghanistan 
.htm;  Defence  Factsheet,  supra  note  45. 

74.  UK  Ministry  of  Defence,  Joint  Doctrine  Publication  1-10,  Joint  Doctrine  Publication  - 
Prisoners  of  War,  Internees  and  Detainees  para.  403  (2006)  [hereinafter  JDP  1-10]. 

75.  In  an  extradition  case  in  recent  years,  for  example,  an  English  judge  was  faced  with  a  Rus- 
sian government  claim  that  the  situation  in  Chechnya  in  1995-96  "amounted  to  a  riot  and  rebel- 
lion, 'banditry'  and  terrorism."  It  was  held,  however,  that  "the  events  in  Chechnya . . .  amounted 
in  law  to  an  internal  armed  conflict."  In  support  of  that  determination,  the  judge  listed  the  fol- 
lowing factors:  "the  scale  of  the  fighting — the  intense  carpet  bombing  of  Grozny  with  in  excess  of 
100,000  casualties,  the  recognition  of  the  conflict  in  terms  of  a  cease  fire  and  a  peace  treaty."  Gov- 
ernment of  the  Russian  Federation  v.  Akhmed  Zakaev  (Bow  Street  Magistrates'  Court,  Nov.  13, 
2003,  at  2)  (unreported;  copy  on  file  with  the  author).  The  factors  listed  do  not  apply  to  Afghani- 
stan, except  in  respect  to  the  scale  and  intensity  of  the  fighting. 

76.  See  UK  MINISTRY  OF  DEFENCE,  THE  MANUAL  OF  THE  LAW  OF  ARMED  CONFLICT  paras. 
3.1-3.13  (2004)  [hereinafter  UK  MANUAL]. 

77.  As  required  by  Article  1(1)  of  Additional  Protocol  II,  supra  note  56. 

78.  JDP  1-10,  supra  note  74,  paras.  403-04. 

79.  The  United  Kingdom  is  bound  by  treaty  obligation  to  apply  the  Additional  Protocol  I 
rules  on  targeting  in  all  international  armed  conflicts  to  which  it  is  a  party.  These  rules  "should 
[also]  be  treated  as  applicable"  in  non-international  armed  conflicts.  UK  MANUAL,  supra  note 
76,  para.  15.9.1. 

80.  UK  Ministry  of  Defence,  Joint  Doctrine  Publication  1  - 10.3,  Joint  Doctrine  Publication  - 
Detainees,  paras.  1 16-17  (2006). 

81.  Supra  note  71,  paras.  44-53  and  204. 

82.  Specifically,  the  Army  Act  1955,  the  Royal  Air  Force  Act  1955  and  the  Naval  Discipline 
Act  1957  (which  will  in  the  course  of  2009  be  progressively  repealed  and  replaced  with  the  new 
tri-service  Armed  Forces  Act  2006). 

83.  [2004]  ENGLAND  &  WALES  HIGH  COURT  786.  The  court  found  the  Ministry  of  Defence 
to  have  civil  liability  in  tort  for  the  accidental  killing  and  wounding  of  four  Kosovar  Albanians  by 
British  soldiers  on  peacekeeping  duties  near  a  demonstration  in  Pristina. 

84.  Id.,  paras.  84-105,  citing  in  particular  the  Australian  case  of  Shaw  Savill  and  Albion  Com- 
pany Ltd  v.  The  Commonwealth  (1940)  66  C.L.R.  344  (concerning  the  liability  of  the  State  in  tort 
for  a  collision  on  the  high  seas  between  an  Australian  warship  and  an  Australian  civilian  vessel, 
caused  by  the  navigational  negligence  of  the  warship's  officers).  Furthermore,  the  House  of 
Lords  decision  in  Al-Skeini,  supra  note  68,  which  confirmed  that  the  ECHR  and  HRA  were  ap- 
plicable to  the  case  of  the  detainee  Baha  Mousa,  who  died  in  British  military  custody,  was  made 
on  such  narrow  grounds  as  at  least  implicitly  to  exclude  any  possibility  of  similar  liability  in  com- 
bat situations,  where  the  troops  could  not  be  said  to  have  effective  control  of  the  territory  in 
question. 


410 


XVI 


Stability  Operations:  A  Guiding  Framework 

for  "Small  Wars"  and  Other  Conflicts  of  the 

Twenty-First  Century? 

Kenneth  Watkin* 

[I ]f  international  law  is,  in  some  ways,  at  the  vanishing  point  of  law,  the  law 
of  war  is,  perhaps  even  more  conspicuously,  at  the  vanishing  point  of  interna- 
tional law.1 

Introduction 

The  ongoing  armed  conflict  in  Afghanistan  provides  a  stark  example  of  the 
challenging  and  complex  operating  environment  in  which  the  international 
community  is  seeking  to  establish  and  maintain  the  rule  of  law.  Professor  Hersch 
Lauterpacht's  entreaty  in  the  aftermath  of  World  War  II  for  lawyers  to  address  the 
myriad  of  law  of  war  issues  not  covered  by  the  Geneva  Conventions  with  a  feeling 
of  humility  is  no  less  applicable  today  regarding  attempts  to  regulate  contempo- 
rary conflict.2  Twenty- first-century  conflict  rarely  meets  the  traditional  legal  crite- 
ria of  an  international  armed  conflict.  Instead,  operational  lawyers  have  to  apply  a 
normative  framework  primarily  designed  to  regulate  State-on-State  conflict  to  in- 
creasingly complex  security  situations  involving  warfare  both  within  States  and 
across  international  borders.   Such  operations  range  from  relatively  benign 


*  Brigadier  General,  Canadian  Forces.  The  opinions  expressed  in  this  article  are  solely  those  of 
the  author  and  do  not  necessarily  reflect  the  views  of  the  government  of  Canada. 


A  Guiding  Framework  for  "Small  Wars"  and  Other  Conflicts 

humanitarian  relief  operations  to  significant  combat  operations,  such  as  those  in 
Afghanistan  involving  the  multinational  forces  assisting  the  Afghan  government. 

Lawyers  should  not  feel  isolated  in  this  endeavor,  as  the  challenge  of  categoriz- 
ing conflict  and  operating  in  complex  security  situations  is  not  a  uniquely  legal 
one.  Military  commanders  are  also  seeking  to  have  doctrine  adapted,  and  where 
necessary  developed,  to  address  such  conflicts.  The  doctrinal  goal  of  attempting  to 
categorize  operations  that  do  not  fit  within  the  classic  notions  of  offensive  or  de- 
fensive operations  between  State  armed  forces  has  led  to  the  development  of  the 
concept  of  "stability  operations."  This  article  explores  the  relationship  between  the 
law  of  armed  conflict  and  what  is  largely  a  US-led  initiative  to  place  a  myriad  of 
military  missions,  often  occurring  at  the  lower  end  of  the  conflict  spectrum,  under 
one  overarching  doctrinal  umbrella.3  The  analysis  includes  an  outline  of  the  limits 
of  the  contemporary  normative  legal  framework  in  governing  operations  designed 
to  bring  stability  to  failed  or  failing  States. 

Stability  operations  will  be  assessed  in  four  parts,  commencing  with  an  outline 
of  the  definition,  scope  and  purpose  of  those  operations.  A  key  question  is  the  de- 
gree to  which  such  operations  are  actually  new  or  whether  the  concept  is  in  reality  a 
catch-all  term  for  a  variety  of  missions  that  have  always  challenged  both  doctrine 
writers  and  lawyers  alike.  Secondly,  the  law  governing  operations  at  the  lower  end 
of  the  conflict  spectrum  will  be  explored.  Emphasis  will  be  placed  on  looking  at 
whether  international  law  has  adapted  to  account  for  such  conflict,  or  if  it  has,  like 
military  doctrine,  focused  on  State-on-State  conflict.  Thirdly,  the  applicability  of 
the  term  "stability  operations"  in  a  coalition  environment  will  be  explored.  Given 
the  prevalence  of  such  operations,  the  adoption,  or  lack  thereof,  of  this  doctrinal 
approach  by  potential  allies  provides  an  important  indicator  of  the  maturity  and 
potential  viability  of  the  concept. 

Finally,  potential  limitations  on  this  forward-thinking  American  doctrinal  ap- 
proach to  addressing  the  contemporary  "war  amongst  the  people"4  will  be  consid- 
ered. While  there  is  a  possibility  for  failure,  the  significant  potential  this  new 
categorization  of  conflict  presents  in  seeking  to  articulate  a  realistic  regime  in 
which  to  conduct  operations  in  the  existing  complex  security  environment  will  be 
explored. 

Stability  Operations 

The  Doctrine 

The  analysis  will  now  turn  to  outlining  the  stability  operations  doctrine,  exploring 
its  scope  and  relationship  with  doctrine  governing  combat  operations,  and  situat- 
ing stability  operations  in  a  historical  context  regarding  previous  efforts  to 

412 


Kenneth  Watkin 


categorize  such  conflict.  "Stability  operations"  is  a  relatively  recent  doctrine  devel- 
oped by  the  prolific  US  military  doctrine  production  process.  In  its  simplest  form, 
such  operations  are  defined  as  "[m]ilitary  and  civilian  activities  conducted  across 
the  spectrum  from  peace  to  conflict  to  establish  or  maintain  order  in  States  and 
regions."5  This  definition,  found  in  Department  of  Defense  (DoD)  Directive 
3000.05,  elevates  such  operations  to  "a  core  U.S.  military  mission  that  the  Depart- 
ment of  Defense  shall  be  prepared  to  conduct  and  support.  They  shall  be  given  pri- 
ority comparable  to  combat  operations  and  be  explicitly  addressed  and  integrated 
across  all  DoD  activities "6  The  goal  of  these  operations  is  ambitious: 

The  immediate  goal  often  is  to  provide  the  local  populace  with  security,  restore 
essential  services,  and  meet  humanitarian  needs.  The  long  term  goal  is  to  help  develop 
indigenous  capacity  for  securing  essential  services,  a  viable  market  economy,  rule  of 
law,  democratic  institutions,  and  a  robust  civil  society.7 

Among  the  activities  envisaged  are  rebuilding  indigenous  security  forces,  correc- 
tional facilities  and  judicial  systems  necessary  to  secure  and  stabilize  the  environ- 
ment; reviving  or  building  the  private  sector;  and  developing  representative 
governmental  institutions.8  The  partners  for  US  military  forces  include  "U.S. 
Departments  and  Agencies,  foreign  governments  and  security  forces,  global 
and  regional  international  organizations  .  .  .  U.S.  and  foreign  nongovernmental 
organizations  .  . .  and  private  sector  individuals  and  for-profit  companies  .  .  .  ."9 
While  the  directive  clearly  anticipates  that  many  stability  operations  are  best  per- 
formed by  indigenous,  foreign  or  US  civilian  professionals  it  clearly,  and  perhaps 
for  many  military  planners  ominously,  states:  "[nonetheless,  U.S.  military  forces 
shall  be  prepared  to  perform  all  tasks  necessary  to  establish  or  maintain  order  when 
civilians  cannot  do  so."10 

The  fulfillment  of  the  "stability  operations"  mission  presents  a  significant  chal- 
lenge. Indeed  some  might  think  it  at  best  aspirational  if  it  were  not  for  the  fact  such 
operations  comprise  the  types  of  missions  presently  being  conducted,  not  just  by 
the  US  military,  but  also  by  the  wider  international  community.  This  is  evident  not 
only  in  Iraq,  which  is  often  cited  as  the  most  glaring  example  of  what  can  go  wrong 
when  mission  planning  has  not  fully  contemplated  or  provided  for  the  mainte- 
nance of  order  and  the  re-establishment  of  governance  institutions  when  tradi- 
tional fighting  has  concluded,  but  also  in  Afghanistan.  In  Afghanistan,  NATO,  the 
United  Nations,  international  organizations  and  nongovernmental  organizations 
are  all  faced  with  the  tremendous  security,  governance  and  organizational  chal- 
lenges of  trying  to  rebuild  or,  perhaps  more  accurately,  build  a  State.  Both  the  Af- 
ghanistan and  Iraq  missions  provide  clear  examples  of  the  activities  stability 


413 


A  Guiding  Framework  for  "Small  Wars"  and  Other  Conflicts 

operations  can  encompass,  as  well  as  the  policy  and  legal  challenges  they  pose. 
Given  the  post-2001  emergence  of  the  doctrine  they  appear  to  have  been  primary 
catalysts  for  its  development. 

However,  there  is  a  significant  danger  in  looking  at  stability  operations  through 
the  narrow  lens  of  Iraq  or  Afghanistan.  The  activities  captured  under  the  stability 
operations  doctrine  are  much  broader  than  those  two  major  conflicts.  This  idea  is 
reflected  in  the  foreword  to  the  2008  US  Army  Field  Manual  on  "Stability  Opera- 
tions," where  Lieutenant  General  William  Caldwell  notes,  "America's  future 
abroad  is  unlikely  to  resemble  Afghanistan  or  Iraq."11  It  is  the  very  breadth  of  the 
stability  operations  doctrine  that  highlights  not  only  the  complex  nature  of  the  ex- 
isting security  challenge,  but  also  the  deficiencies  in  the  underlying  legal  frame- 
work within  which  contemporary  security  operations  take  place. 

The  "Catch-All"  of  Conflict 

The  complexity  of  stability  operations  results  from  a  number  of  factors,  including 
the  wide  scope  of  activities  that  fall  within  its  definition.  To  fully  understand  that 
scope  it  is  necessary  to  look  at  recent  US  Army  doctrine.  That  doctrine  has  under- 
gone a  significant  revision  with  the  2008  Army  manual  replacing  an  earlier  version 
produced  just  in  2003. 12  The  speed  with  which  this  doctrine  has  undergone  that  re- 
vision appears  to  reflect  not  only  the  dynamic  environment  within  which  such  op- 
erations are  conducted,  but  also  the  impact  of  "lessons  learned"  information  being 
incorporated  into  military  doctrine. 

While  not  as  specific  as  its  predecessor  in  terms  of  identifying  types  of  opera- 
tions, the  new  doctrine  indicates  that  stability  operations  occur  across  a  spectrum 
of  conflict  from  peace  to  general  war  and  can  include 

a  wide  range  of  stability  tasks  performed  under  the  umbrella  of  various  operational 
environments — 

•  To  support  a  partner  nation  during  peacetime  military  engagement. 

•  After  a  natural  or  man-made  disaster  as  part  of  a  humanitarian-based  limited 
intervention. 

•  During  peace  operations  to  enforce  international  peace  agreements. 

•  To  support  a  legitimate  host-nation  government  during  irregular  warfare. 

•  During  major  combat  operations  to  establish  conditions  that  facilitate  post-conflict 
activities. 


414 


Kenneth  Watkin 


In  a  post-conflict  environment  following  the  general  cessation  of  organized 
rstilities. 


hostilities. 


Consistent  with  the  2003  version,  the  doctrine  found  in  the  2008  manual  envis- 
ages stability  operations  to  be  carried  out  during  humanitarian  disaster  relief, 
peacetime  support  to  other  nations,  peacekeeping  and  peace  enforcement,  coun- 
terinsurgency  (COIN)  operations  and  post-conflict  occupation.  Given  the  general 
wording  provided  in  the  new  doctrine  there  is  no  reason  to  believe  it  would  not  also 
include  operations  identified  in  the  earlier  manual,  such  as  support  to  counterdrug 
operations,  combating  terrorism  and  noncombatant  evacuation  operations.14 

Significantly,  in  respect  to  terrorism,  the  2008  doctrine  notes  that  the  greatest 
threat  to  American  national  security  "comes  not  in  the  form  of  terrorism  or  ambi- 
tious powers,  but  from  fragile  states."15  While  terrorism  remains  a  threat  which 
must  be  addressed  in  the  context  of  such  operations,  avoiding  the  impression  of 
engagement  in  a  "Global  War  on  Terror"  will  undoubtedly  remove  a  potential  irri- 
tant with  many  coalition  partners.  The  reference  to  humanitarian  operations  also 
highlights  the  degree  to  which  dealing  with  humanitarian  disaster  is  increasingly 
being  seen  in  the  same  light  as  insurgency  and  other  challenges  to  governance  by 
State  authorities.16  Both  humanitarian  and  many  other  types  of  stability  opera- 
tions, which  are  located  well  down  on  the  conflict  spectrum,  often  involve  military 
forces  in  issues  related  to  governance,  including  law  enforcement.  What  remains  to 
be  seen  is  the  degree  to  which  military  forces  can  or  must  adapt  their  operations  to 
participate  in  a  law  enforcement  role. 

Significantly,  the  stability  operations  doctrine  takes  a  bold  step  in  addressing  the 
primary  security  challenge  of  the  twenty- first  century  by  elevating  such  operations 
in  DoD  Directive  3000.05  to  an  equal  footing  with  combat  operations.  In  many 
ways  this  doctrine  is  revolutionary,  visionary  and  long  overdue.  The  Army  manual 
seeks  to  reinforce  this  doctrinal  advance  by  indicating  the  full  spectrum  of  opera- 
tions includes  "continuous,  simultaneous  combinations  of  offensive,  defensive, 
and  stability  tasks."17  That  relationship  is  depicted  as  follows:18 


Defense 

Offense 

Offense 

Defense 

Stability 

Offense 

Stability 

Defense 

Stability 

The  Mission  Determines  the  Relative  Weight  of  Effort  Among  the  Components 


415 


A  Guiding  Framework  for  "Small  Wars"  and  Other  Conflicts 

The  question  remains,  however,  whether  the  attempt  to  elevate  stability  opera- 
tions to  the  level  of  combat  operations  will  win  out  over  the  significant  historical 
resistance  to  changing  the  focus  on  traditional  "inter-State"  armed  conflict.  To  do 
so,  such  a  change  in  status  will  have  to  address  the  significant  effort  that  will  be  re- 
quired in  terms  of  training  and  education.  The  challenges  that  arise  from  focusing 
on  armed  conflict  between  States  not  only  has  plagued  doctrine  writers,  but  has 
also  impacted  on  attempts  to  clearly  outline  the  legal  framework  governing  opera- 
tions at  the  lower  end  of  the  conflict  spectrum. 

A  Doctrinal  Morass 

The  strength  of  military  doctrine  is  that  it  provides  an  overall  conceptual  frame- 
work within  which  operations  are  conducted.  One  of  the  potential  obstacles  to 
gaining  acceptance  for  the  new  doctrinal  term  "stability  operations"  is  that  it  could 
appear  to  a  cynical  observer  to  simply  be  an  attempt  to  provide  a  new  name  to  an 
old  problem.  For  well  over  a  century  efforts  have  been  made  to  categorize  small- 
scale  and  lower-intensity  conflict.  Such  terms  have  included  small  wars,19  impe- 
rial policing,20  police  action,21  insurgency,  low  intensity  conflict,22  military  oper- 
ations other  than  war,23  peacekeeping,24  peace  enforcement,25  three  block  wars,26 
revolutionary  war,  irregular  warfare,  war  amongst  the  people  and,  more  recently, 
mosaic  war.27 

These  categorizations  can  often  be  used  to  encompass  one  or  more  of  the  other 
doctrinal  terms  associated  with  conflict  at  the  lower  end  of  the  conflict  spectrum. 
For  example,  the  2007  US  Army  and  Marine  Corps  counterinsurgency  manual 
notes  that  "insurgency  and  COIN  are  two  sides  of  a  phenomenon  that  has  been 
called  revolutionary  war  or  internal  war."28  Further,  they  are  "included  within  a 
broad  category  of  conflict  known  as  irregular  warfare."29 

The  development  and  use  of  the  term  "mosaic  war"  in  the  counterinsurgency 
manual30  itself  highlights  the  challenge  of  seeking  just  one  term  to  categorize  con- 
temporary complex  security  operations.  "Mosaic  war"  was  introduced  to  highlight 
that  contemporary  COIN  operations  are  more  complicated  than  the  1990s  concept  of 
"three  block  war"  on  the  basis  that  such  warfare  "is  difficult  for  counter-insurgents  to 
envision  as  a  coherent  whole."31  The  manual  recognizes  the  term  "stability  opera- 
tions" and  identifies  it  as  an  essential  component  of  COIN  operations,  along  with 
offensive  and  defensive  operations.32  It  is  within  this  shifting  doctrinal  framework 
that  stability  operations  will  have  to  be  interpreted. 

The  counterinsurgency  manual  also  highlights  a  further  complexity  of  con- 
temporary conflict.  In  that  manual  "insurgency"  is  defined  as  "an  organized,  pro- 
tracted politico -military  struggle  designed  to  weaken  the  control  and  legitimacy 
of  an  established  government,  occupying  power,  or  other  political  authority  while 

416 


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increasing  insurgent  control."33  Counterinsurgency  operations  and  as  a  result  sta- 
bility operations  occur  not  only  during  internal  armed  conflicts,  but  also  during 
periods  of  occupation. 

Part  of  the  challenge  in  applying  the  doctrinal  term  "stability  operations"  is  that 
the  underlying  security  situations  which  motivated  its  creation  are  not  only  not 
new,  but  have  been  and  are  the  dominant  form  of  warfare.  As  has  been  identified 
by  Doctor  Lawrence  Yates  for  the  Combat  Studies  Institute  Press,  "[i]f  America's 
armed  forces  have  fought  fewer  than  a  dozen  major  conventional  wars  in  over  two 
centuries,  they  have,  during  that  same  period,  engaged  in  several  hundred  military 
undertakings  that  would  today  be  characterized  as  stability  operations."34  It  has 
been  noted  that  in  2006  no  State-sponsored  opposing  armies  were  engaged  in 
armed  conflict,  while  the  number  of  civil  wars  increased.35 

Although  the  potential  for  armed  conflict  between  States  continues,  as  was  evi- 
denced by  the  2008  armed  conflict  between  the  armed  forces  of  Russia  and  Geor- 
gia, there  is  increasing  recognition  within  the  US  Department  of  Defense  that  "the 
main  threat  faced  by  the  U.S.  military  overseas  will  be  a  complex  hybrid  of  conven- 
tional and  unconventional  conflicts,  waged  by  'militias,  insurgent  groups,  other 
non-State  actors  and  Third  World  militaries.'"36  It  is  within  this  complex  security 
environment  that  the  applicable  law  must  be  identified  and  applied  in  order  to  en- 
sure that  military  operations,  including  stability  operations,  are  conducted  pursu- 
ant to  the  "rule  of  law." 

The  Law 

Unfortunately,  it  appears  that  international  law  has  been  no  more  successful  than 
military  doctrine  in  definitively  addressing  the  challenges  associated  with  irregu- 
lar warfare.  Like  military  doctrine,  the  law  of  armed  conflict  has  been  more 
readily  developed  and  applied  to  regulate  conflict  at  the  inter- State  level.  The  lack 
of  a  comprehensive  set  of  legal  rules  governing  conflict  outside  the  context  of 
traditional  inter-State  warfare  has  been  influenced  by  a  number  of  interrelated 
factors:  the  post-World  War  II  emphasis  on  prescribing  the  recourse  to  war  be- 
tween States,  difficulty  in  categorizing  conflict  at  the  lower  end  of  the  conflict 
spectrum  and  a  general  reluctance  to  introduce  international  law  of  armed  con- 
flict rules  to  what  are  often  viewed  as  internal  security  matters.  This  in  turn  results 
in  considerable  debate  regarding  what  legal  regime  governs  such  conflict:  the  law 
of  armed  conflict  or  human  rights  law.  The  analysis  will  now  turn  to  discussing 
this  challenge. 


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A  Guiding  Framework  for  "Small  Wars"  and  Other  Conflicts 

Emphasis  on  Inter-State  Conflict 

While  the  immediate  post-World  War  II  period  saw  the  almost  concurrent  devel- 
opment of  the  1949  Geneva  Conventions,37  governing  aspects  of  the  conduct  of 
warfare,  particular  legal  emphasis  was  placed  on  stopping  or  limiting  future  inter- 
State  wars.  This  was  perhaps  best  evidenced  by  the  increasing  use  of  the  terms  jus 
ad  helium  and  jus  in  hello,  which  were  designed  to  separate  the  legal  analysis  regard- 
ing conflict  into  two  distinct  analytical  spheres.38  The  jus  ad  helium  branch  focused 
on  the  replacement  of  the  balance  of  power  approach  to  inter-State  relations  with 
resurgence  of  the  concept  of  helium  justum.39  This  is  reflected  in  the  UN  Charter, 
which  significantly  prescribed  the  recourse  to  war.40 

The  extent  to  which  war  between  States  was  to  be  limited  is  reflected  in  the  fact 
that  the  very  use  of  the  term  "war"  has  become  problematic.  While  "war"  contin- 
ues as  part  of  the  everyday  lexicon,  including  in  the  newly  issued  stability  opera- 
tions doctrine  manual,41  in  a  legal  sense  it  has  often  been  viewed  since  World  War 
II  as  being  "outlawed."42  This  sensitivity  toward  describing  conflict  as  "war"  is  fre- 
quently reflected  in  legal  articles  where  that  term  is  often  prefaced  with  the  quali- 
fier that  it  is  being  used  in  a  de  facto  rather  than  a  de  jure  sense.43 

Even  the  new  term  "armed  conflict,"  introduced  in  the  1949  Geneva  Conven- 
tions to  describe  a  broad  range  of  conflicts  between  States,44  came  with  limitations 
that  reflected  the  inter-State  bias  of  the  drafters  of  those  Conventions.  The  scope  of 
"armed  conflict"  is  effectively  qualified  in  Common  Article  3  of  the  Conventions 
with  reference  to  "armed  conflict  not  of  an  international  character,"  mirroring  the 
historic  approach  of  distinguishing  between  public  and  private  war.  States  were 
more  willing  to  deal  with  international  armed  conflict  than  comprehensively  iden- 
tify rules  to  govern  its  non-international  counterpart.  In  effect,  there  was  signifi- 
cant armed  conflict  in  terms  of  scope,  frequency  and  levels  of  violence  to  which  the 
rules  governing  conflict  between  States  were  not  clearly  stated  to  be  applicable. 
This  emphasis  by  the  international  community  on  inter-State  conflict  is  under- 
standable given  the  horrific  human  and  material  cost  of  the  total  wars  of  the  twen- 
tieth century.  However,  the  bias  toward  inter-State  conflict  has  resulted  in  intra- 
state conflict  not  being  provided  as  clear  or  rigorous  a  governing  legal  framework. 

It  is  evident  there  has  been  an  extreme  reluctance  on  the  part  of  States  to  codify 
the  law  governing  armed  conflict  as  it  applies  to  warfare  within  a  State.  Certainly, 
the  expansion  of  Additional  Protocol  I45  to  deal  with  "national  liberation  move- 
ments" and  what  otherwise  would  be  an  internal  armed  conflict  has  met  with  sig- 
nificant resistance.  Efforts  commenced  by  the  International  Committee  of  the  Red 
Cross  (ICRC)  as  early  as  1912  to  introduce  law  of  armed  conflict  norms  to  internal 
conflict  continued  through  the  immediate  post-World  War  II  period  to  the  pres- 
ent day  with  what  realistically  can  only  be  described  as  having  had  limited  success. 

418 


Kenneth  Watkin 


Common  Article  3  of  the  Geneva  Conventions,  while  representing  a  significant 
milestone  in  the  twentieth-century  efforts  to  codify  the  rules  governing  internal 
conflict,  in  reality  represents  the  best  that  could  be  attained  in  a  broader  effort  to 
have  all  of  the  Conventions  apply  to  conflicts  "not  of  an  international  character."46 
A  quarter  century  later  the  success  in  negotiating  Additional  Protocol  II47  is  tem- 
pered by  both  the  lack  of  universal  acceptance  by  States48  and  the  relatively  high 
threshold  for  its  application  that  leaves  significant  internal  conflict  outside  its 
scope.49  Notwithstanding  a  trend  in  having  law  of  armed  conflict  treaties  address 
both  international  and  non-international  armed  conflict50  it  undoubtedly  was  the 
long-standing  reluctance  by  States  to  outline  in  codified  form  the  rules  to  be  ap- 
plied to  internal  armed  conflict  which  has  resulted  in  efforts  by  the  International 
Criminal  Tribunal  for  the  former  Yugoslavia  (ICTY)51  and  the  ICRC  to  articulate 
what  customary  international  law  rules  should  apply  to  govern  internal  warfare.52 
These  initial  efforts  are  long  overdue.  However,  there  remains  a  lack  of  agreement 
regarding  the  scope  and  content  of  the  customary  law  of  armed  conflict  as  it  applies 
to  non-international  armed  conflicts. 

One  example  of  the  degree  to  which  international  law  often  focuses  on  inter- 
State  conflict  is  reflected  in  Legal  Consequences  of  the  Construction  of  a  Wall  in  the 
Occupied  Palestinian  Territory,53  where  the  International  Court  of  Justice  ruled  the 
invocation  of  Article  51  of  the  UN  Charter  required  attacks  that  were  imputable  to 
a  foreign  State  and  a  threat  originating  outside  of  occupied  territory.54  Even  where 
there  is  a  clash  between  State  armed  forces  the  jus  ad  helium  focus  on  limiting  con- 
flict has  left  considerable  room  for  disagreement  and,  as  a  result,  confusion  as  to 
when  such  clashes  engage  the  law  of  armed  conflict.  This  is  evident  in  the  assess- 
ment of  the  threshold  of  what  constitutes  an  "armed  attack."55  The  reference  in 
Military  and  Paramilitary  Activities  in  and  against  Nicaragua56  to  "frontier  inci- 
dents" as  a  less  grave  use  of  force  not  constituting  such  an  attack  raises  the  question 
as  to  whether  such  incidents  could  constitute  "armed  conflict"  where  the  law  of 
armed  conflict  would  apply. 

The  ICTY  has  stated  armed  conflict  "exists  whenever  there  is  resort  to  armed 
force  between  States  or  protracted  armed  violence  between  governmental  authori- 
ties and  organized  armed  groups  or  between  such  groups  within  a  State."57  In  that 
assessment,  particular  attention  is  paid  to  the  intensity  of  the  fighting  and  the  orga- 
nization of  the  armed  groups.58  However,  the  requirement  for  "protracted"  armed 
violence  between  opposing  armed  forces  still  results  in  situations  where  armed 
forces  may  be  engaged  in  fighting  where  it  is  not  clear  there  is  consensus  that 
"armed  conflict"  exists  such  that  the  law  of  armed  conflict  would  apply.  If  that  is 
the  case,  it  is  not  necessarily  evident  how  the  alternative  legal  framework  of  inter- 
national human  rights  law  is  equipped  to  regulate  such  violence.  The  criteria 

419 


A  Guiding  Framework  for  "Small  Wars"  and  Other  Conflicts 

established  by  the  ICTY  can  be  contrasted  with  that  followed  in  Abella  v.  Argentina, 
where  an  isolated  act  of  armed  violence  between  State  armed  forces  and  a  rebel 
armed  group  during  a  two-day  period  resulted  in  the  application  of  the  law  of 
armed  conflict.59 

While  the  Nicaragua  judgment  has  garnered  considerable  criticism,  it  highlights 
that  in  the  context  of  the  inter-State  use  of  force  and  in  respect  to  military  action 
between  State  and  non-State  actors  there  is  a  wide  range  of  activity  that  does  not 
neatly  fall  within  the  parameters  of  traditional  armed  conflict.  Such  contemporary 
operations  can  include  peacekeeping,  noncombatant  evacuations,  hostage  rescue, 
humanitarian  intervention  and  attacks  against  terrorist  groups.  These  types  of  op- 
erations fall  within  the  scope  of  stability  operations.  Yet  this  is  an  area  which  has 
not  garnered  sufficient  attention  in  terms  of  clearly  identifying  the  law  which  ap- 
plies to  the  conduct  of  those  operations. 

Identification  of  the  applicable  law  can  be  further  clouded  by  references  to  "polic- 
ing" language  when  describing  the  types  of  operations.  For  example,  referring  to  UN 
military  operations  as  "police  actions"  or  counterterrorist  operations  as  "extra- 
territorial law  enforcement"60  does  not  mean  such  military  activity  is  governed  by  a 
law  enforcement  legal  framework.  Those  military  operations  would,  to  the  extent 
they  involve  combat,  be  governed  by  the  law  of  armed  conflict  regardless  of 
whether  such  fighting  is  called  a  "war."61 

Providing  Clarity:  Which  Norms  Apply? 

The  degree  of  uncertainty  regarding  what  law  applies  to  the  wide  range  of  interna- 
tional military  operations  falling  within  the  scope  of  stability  operations  should 
raise  significant  concern.  Whether  perceived  as  a  "gap"  that  must  be  filled,  or  sim- 
ply a  grey  zone  that  must  be  clarified,  the  reality  is  that  there  is  no  clear  interna- 
tional consensus  as  to  what  law  applies  to  a  wide  range  of  international  operations 
involving  the  use,  or  potential  use,  of  armed  force  by  State  armed  forces. 

It  is  a  problem  often  addressed  by  reference  to  the  "spirit  and  principles"  of  the 
law  of  armed  conflict62  or  to  applying  that  law  to  all  military  operations  as  a  matter 
of  direction  from  national  authorities.63  While  strong  policy  statements  or  national 
direction  provides  an  important  indication  that  the  law  of  armed  conflict  should 
apply  to  operations  outside  the  scope  of  traditional  armed  conflict,  there  is  consid- 
erable room  for  confusion  and  debate,  particularly  in  light  of  the  continued  appli- 
cation of  human  rights  during  armed  conflict.64 

The  confusion  results,  in  part,  because  of  the  complexity  of  such  operations. 
Further,  the  requirement  to  interface  with  the  civilian  population  during  the  con- 
duct of  many  stability  operations  can  significantly  impact  on  the  freedom  to  use 
force.  For  example,  in  terms  of  controlling  the  use  of  force  the  question  will 

420 


Kenneth  Watkin 


inevitably  arise  as  to  whether  military  forces  are  using  force  in  a  combat  or  law  en- 
forcement role.  At  some  point  the  law  of  armed  conflict  as  a  lex  specialis  must  be 
reconciled  with  the  application  of  the  norms  associated  with  a  human  rights-based 
law  enforcement  framework.  It  is  not  completely  clear  how  such  reconciliation  can 
occur  if  the  law  of  armed  conflict  is  only  accepted  as  applying  as  a  matter  of  policy 
or  national  direction. 

The  breadth  of  the  potential  tasks  assigned  to  military  forces  under  the  stability 
operations  doctrine  also  introduces  other  significant  challenges.  The  rule  of  law 
tasks  inherent  in  stability  operations  require  an  understanding  of  legal  norms  and 
standards  well  beyond  a  simple  familiarity  with  the  law  of  armed  conflict.  There 
has  been  significant  debate  regarding  the  impact  of  human  rights  norms  during  pe- 
riods of  occupation65  and  even  a  lack  of  consensus  of  what  constitutes  an  occupa- 
tion at  law.66  This  can  result  in  a  potential  broadening  of  situations  in  which  the 
interface  between  occupation  law  and  human  rights  may  have  to  be  considered. 

To  the  extent  the  stability  operations  doctrine  encompasses  periods  of  occupa- 
tion, that  debate  will  continue  to  have  relevance.  However,  the  law  of  armed  con- 
flict and  human  rights  interface  might  be  seen  to  be  less  relevant  to  stability 
operations  outside  the  context  of  occupation,  although  questions  will  continue  to 
arise  as  to  the  impact  of  Common  Article  3,  Additional  Protocol  II  or  customary 
international  law  on  human  rights  law  during  internal  armed  conflicts.67  The  abil- 
ity to  interpret  and  apply  international  human  rights  and  host-nation  laws  will 
raise  significant  challenges  for  military  commanders  and  their  legal  advisers,  who 
likely  will  be  more  comfortable  applying  the  law  applicable  to  armed  conflict. 

Is  it  War  or  Policing? 

A  particular  challenge  for  military  forces  is  that  stability  operations  are  usually  con- 
ducted among  the  people.68  This  interface  often  places  those  forces  in  the  difficult 
situation  of  policing  the  local  population  in  addition  to  fighting  organized  armed 
groups.  This  occurs  regardless  of  whether  those  forces  are  operating  under  the  legal 
framework  of  occupation  during  an  international  armed  conflict  or  in  respect  to  a 
multinational  coalition  effort  engaged  in  combating  the  counterinsurgency  in 
Afghanistan. 

Perhaps  the  most  graphic  evidence  of  the  unwillingness  or  inability  of  the  inter- 
national community  to  deal  directly  with  this  challenge  is  that  neither  the  responsi- 
bility for,  nor  the  conduct  of,  a  policing  function  is  directly  addressed  in  the  black- 
letter  law  governing  occupation.69  Perhaps  the  closest  reference  can  be  found  in 
Article  43  of  the  1907  Hague  Regulations,70  which  provides  that  the  occupying 
power  "shall  take  all  the  measures  in  his  power  to  restore,  and  ensure,  as  far  as 


421 


A  Guiding  Framework  for  "Small  Wars"  and  Other  Conflicts 

possible,  public  order  and  safely  [civil  life],  while  respecting,  unless  absolutely  pre- 
vented, the  laws  in  force  in  the  country."71 

The  reality  is  that  where  a  military  force  controls  territory  and  comes  in  contact 
with  the  local  population  it  may,  particularly  where  the  failing  State  is  unable  to  do 
so,  be  required  to  perform  a  policing  role.  This  occurs  regardless  of  whether  the 
force  is  operating  on  behalf  of  an  occupying  power,  as  part  of  a  multinational  coali- 
tion or  at  the  invitation  of  a  failing  State.  Reference  to  this  policing  task  is  found  in 
FM  3-07  (2008),  where  it  is  noted  that  "[n]ormally  the  responsibility  for  establish- 
ing civil  security  tasks  belongs  to  the  military  from  the  outset  of  operations  through 
transition,  when  host-nation  security  and  police  forces  assume  this  role."72  This 
policing  task  can  be  problematic  for  two  reasons.  First,  military  forces  maybe  neither 
trained  nor  equipped  to  perform  a  policing  function.  Secondly,  performance  of  a 
policing  function  concurrently  with  ongoing  operations  against  insurgent  forces 
can  create  a  complex  and,  at  times,  unclear  interface  between  the  law  of  armed  con- 
flict and  the  human  rights-based  norms  governing  policing.73 

At  this  stage  the  international  community  is  just  coming  to  terms  with  how 
force  should  be  regulated  at  the  lower  end  of  the  conflict  spectrum.  One  approach 
adopted  by  the  Israeli  High  Court  of  Justice  in  the  Targeted  Killing  decision74  is  a 
blended  one  based,  in  part,  on  Israeli  "internal  law"  being  applied  in  a  law-of- 
armed-conflict  targeting  analysis  which  has  a  preference  for  "[a]rrest,  investiga- 
tion, and  trial."75  Here  the  domestic  law  requirements  reflect  the  law  enforcement 
norms  of  international  human  rights  law  in  favoring  capture  over  killing.  An  alter- 
native approach  is  a  "situation  based"  one  which  looks  at  the  type  of  threat  and 
then  applies  the  appropriate  legal  regime  to  control  the  use  of  force  by  security 
forces.  This  means  the  law  of  armed  conflict  is  applied  to  incidents  of  violence  re- 
lated to  the  armed  conflict,  while  human  rights-based  law  enforcement  standards 
are  applicable  to  policing  scenarios.76 

Whichever  approach  is  applied,  there  are  significant  doctrine,  training  and  op- 
erational deployment  challenges  for  military  forces.  The  question  is  not  necessarily 
one  of  "targeting"  or  deciding  when  someone  is  taking  a  direct  part  in  hostilities. 
For  soldiers  manning  checkpoints  or  defending  convoys  against  suicide  bombers 
or  improvised  explosive  devices  their  reaction  will  often  be  governed  by  self-defense 
rules.  The  inevitable  restriction  on  the  use  of  force  in  counterinsurgency  opera- 
tions points  to  an  application  of  graduated  minimum  force  not  normally  associ- 
ated with  armed  conflict.  The  challenge  of  reacting  to  such  threats  is  not  helped  by 
the  present  lack  of  clarity  in  the  law,  particularly  in  light  of  the  decisions  being 
asked  of  young  coalition  and  International  Security  Assistance  Force  soldiers  oper- 
ating in  complex  security  situations  such  as  Afghanistan. 


422 


Kenneth  Watkin 


The  United  States  and  Coalition  Partners:  On  the  Leading  Edge  or  Alone? 

Having  outlined  a  number  of  the  doctrinal  and  legal  challenges  associated  with  the 
stability  operations  doctrine,  there  is  also  the  question  of  how  this  US  doctrine  will 
resonate  in  a  coalition  environment.  Given  the  likelihood  that  the  United  States 
will  continue  to  conduct  operations  as  the  dominant  member  of  international  co- 
alitions, it  is  evident  that  a  common  understanding  among  coalition  partners  of 
what  stability  operations  are  will  be  helpful  in  ensuring  interoperability.  Further, 
the  military  doctrine  of  the  United  States,  as  the  major  State  on  the  international 
stage  regarding  military  capability,  is  a  significant  factor  in  terms  of  developing 
customary  international  law. 

In  considering  the  approach  of  allied  countries  toward  stability  operations,  it 
appears  that  the  United  States  has  a  much  more  robust,  well- developed  and  ambi- 
tious vision  for  such  operations.  For  example,  the  Canadian  Forces  (CF)  have  no 
separate  stability  operations  doctrine,  although  there  is  doctrine  for  CF  operations 
generally,  as  well  as  peace  support  operations,  humanitarian  operations,  disaster 
relief  operations  and  noncombatant  evacuation  operations,  that  would  fall  under 
the  US  stability  operations  doctrine  umbrella.77 

As  often  occurs  in  situations  where  military  forces  are  confronted  with  new 
operational  challenges,  Canadian  doctrine  appears  to  be  driven  by  experiences 
gained  at  the  tactical  level  in  Afghanistan.  The  Canadian  Army  has  developed  two 
manuals  that  refer  to  stability  operations.78  The  new  doctrine  focuses  on  counter- 
insurgency,  with  stability  operations  being  addressed  at  the  tactical  level.  Tactical 
activities  comprise  four  parts:  offensive,  defensive,  stability  and  enabling  opera- 
tions, thereby  setting  out  "full-spectrum  operations."79  Stability  operations  are 
defined  as  "a  tactical  activity  conducted  by  military  and  security  forces,  often  in 
conjunction  with  other  agencies  to  maintain,  restore  or  establish  a  climate  of  or- 
der."80 To  the  extent  these  manuals  reflect  the  focus  of  Canadian  Forces  opera- 
tions, it  is  clear  this  approach  is  not  as  comprehensive  as  that  adopted  by  the 
United  States. 

At  this  stage  NATO  does  not  appear  to  have  embraced  stability  operations  as  a 
separate  strategic-  or  operational-level  concept.  It  is  perhaps  telling  that  the  2006 
NATO  Handbook  refers  to  the  Afghanistan  mission  as  an  international  peacekeep- 
ing effort.81  One  of  the  factors  that  may  impact  on  a  wider  allied  adoption  of  the 
term  "stability  operations"  is  found  in  the  indication  that  part  of  the  rationale  for 
the  US  development  of  a  separate  stability  operations  doctrine  maybe  the  negative 
connotation  attached  to  "peace  operations."  As  is  noted  in  a  2006  Congressional 
Research  Service  Issue  Brief  for  Congress,  "[peacekeeping  has  been  the  traditional 
generic  term  ....  More  recently,  in  an  attempt  to  capture  their  ambiguity  and 

423 


A  Guiding  Framework  for  "Small  Wars"  and  Other  Conflicts 

complexity,  and  perhaps  to  avoid  the  stigma  of  failure  attached  to  peacekeeping, 
they  have  become  known  as  'stabilization  and  reconstruction'  operations,  or  more 
simply  'stability'  operations."82 

As  a  result,  there  may  be  a  number  of  factors  that  may  impact  on  the  degree  to 
which  coalition  partners  embrace  the  US  concept  of  stability  operations.  First, 
peacekeeping  and  other  peace  support  operations  do  not  necessarily  have  the  same 
negative  connotation  outside  the  United  States.  Therefore,  it  may  not  necessarily 
be  evident  to  other  States  why  a  new  term  is  required.  Second,  the  very  "ambiguity 
and  complexity"  of  such  operations  may  cause  other  military  forces  to  embrace 
more  narrowly  focused  mission-specific  doctrine.  Third,  other  nations  may  nei- 
ther be  involved,  nor  plan  to  get  involved,  in  as  wide  a  variety  of  stability  operations 
as  the  US  doctrine  appears  to  cover.  Accordingly,  potential  coalition  partners  may 
continue  to  use  separate  doctrinal  terms  such  as  peace  support  operations  or  hu- 
manitarian operations.  Finally,  the  traditional  approach  of  State  militaries  in  fo- 
cusing on  State-versus-State  conflict  may  still  be  prevalent  among  the  potential 
allies  of  the  United  States.  This  in  turn  may  limit  any  acceptance  that  stability  oper- 
ations have  an  equal  status  with  traditional  combat  operations.  None  of  these  fac- 
tors will  necessarily  preclude  the  conduct  of  coalition  operations  within  the  wider 
stability  operations  doctrine.  However,  it  may  mean  that  the  US  military  will  have 
to  be  prepared  to  interface  with  coalition  partners  on  a  different  level  (e.g.,  tactical) 
and  with  terms  that  reflect  only  a  partial  acceptance  by  other  States  of 
subcomponents  of  the  overarching  stability  operations  doctrine. 

The  Future 

The  question  remains  as  to  whether  this  new  doctrine  is  simply  the  latest  attempt  in 
a  long  history  of  short-lived  efforts  to  definitively  categorize  unconventional  con- 
flict. While  it  is  likely  an  answer  to  that  question  will  only  be  provided  with  the  pas- 
sage of  time,  it  is  clear  the  US  military  has  taken  a  significant  step  in  creating  the 
stability  operations  doctrine.  It  is  an  approach  which  seeks  to  break  the  historical 
reluctance  to  address  warfare  outside  of  State-versus-State  conflict.  Combined 
with  other  publications  such  as  the  counterinsurgency  manual  and  the  Rule  of  Law 
Handbook:  A  Practitioner's  Guide  for  Judge  Advocates,83  there  is  evidence  significant 
effort  continues  to  be  placed  on  developing  doctrine  and  guidance  that  specifically 
addresses  unique  aspects  of  counterinsurgency  operations,  the  dominant  form  of 
warfare  in  the  twenty- first  century. 

Unfortunately,  it  does  not  appear  the  doctrine  can  point  to  a  comprehensive, 
clearly  articulated  legal  framework  for  such  operations.  Perhaps  this  is  understand- 
able given  the  inability  of  the  international  community  to  definitively  come  to 

424 


Kenneth  Watkin 


grips  with  this  challenge.  This  is  graphically  evidenced  by  the  continued  reliance  on 
a  "spirit  and  principles"  or  national-direction  approach  to  applying  the  law  of 
armed  conflict  to  operations  conducted  at  the  lower  end  of  the  conflict  spectrum. 
However,  until  clear  direction  on  the  legal  framework  can  be  provided,  there  is  a 
danger  such  operations  will  be  conducted  at  the  "vanishing  point"  of  the  law  of 
armed  conflict.  In  this  respect  it  could  be  the  complexity  and  ambiguity  inherent  in 
the  scope  of  stability  operations  doctrine  that  sows  the  seeds  of  its  downfall. 

Yet  such  an  outcome  can  be  avoided.  The  doctrine  itself  is  visionary  in  that  it 
shines  a  spotlight  on  the  very  type  of  operations  that  dominate  the  international 
scene  today.  Given  the  number,  scope  and  complexity  of  such  operations  and  the 
fact  that  international  intervention,  either  under  a  UN  mandate  or  otherwise,  is  a 
common  occurrence,  it  maybe  time  for  a  clear  statement  by  States  as  to  what  law  of 
armed  conflict  applies  beyond  general  reference  to  Common  Article  3  of  the 
Geneva  Conventions,  Additional  Protocol  II  (if  it  applies)  or  the  suggested  rules  of 
the  ICRC  customary  law  study.  It  may  very  well  be  that  the  credibility  of  the  doc- 
trine of  "stability  operations,"  which  is  based  upon  establishing  legitimacy  and  the 
rule  of  law,  will  itself  be  dependent  on  such  a  definitive  articulation  of  customary 
norms. 

As  is  noted  in  FM  3-07  (2008),  intervening  forces  "carry  with  them  an  innate 
perception  of  legitimacy  that  is  further  strengthened  by  consistent  performance 
conforming  to  the  standards  of  national  and  international  law."84  However,  unless 
this  new  doctrine  is  matched  by  an  effort  by  individual  States,  and  by  the  interna- 
tional community  generally,  to  comprehensively  outline  the  law  of  armed  conflict 
that  applies  to  conflict  outside  the  context  of  inter- State  warfare,  and  articulate 
how  that  law  interfaces  with  the  human  rights  norms,  the  ability  of  armed  forces  to 
conform  with  such  legal  standards  may  be  at  risk. 

Notes 

1.  Hersch  Lauterpacht,  The  Problem  of  the  Revision  of  the  Law  of  War,  29  BRITISH  YEAR 
Book  of  International  Law  360, 382  (1952). 

2.  Mat 381-82. 

3.  Joint  Doctrine  Division,  J-7,  Joint  Staff,  Joint  Publication  1  -02,  DOD  Dictionary  of  Mili- 
tary and  Associated  Terms  (as  amended  through  26  August  2008),  available  at  http:// 
www.dtic.mil/doctrine/jel/doddict/  (doctrine  is  defined  as  "[f]undamental  principles  by  which 
the  military  forces  or  elements  thereof  guide  their  actions  in  support  of  national  objectives.  It  is 
authoritative  but  requires  judgment  in  application"). 

4.  Rupert  Smith,  The  Utility  of  Force:  The  Art  of  War  in  the  Modern  world  3-4 

(2007). 


425 


A  Guiding  Framework  for  "Small  Wars"  and  Other  Conflicts 

5.  Department  of  Defense,  DoD  Directive  3000.05,  Military  Support  for  Stability,  Security, 
Transition,  and  Reconstruction  (SSTR)  Operations  (2005),  at  2,  para.  3,  available  at  http:// 
wvvrw.dtic.mil/whs/directives/corres/pdf/300005p.pdf. 

6.  Id.  at  2,  para.  4.1. 

7.  Id.  at  2,  para.  4.2. 

8.  Id.  at  2,  paras.  4.3.1-4.3.3. 

9.  Id.  at  3,  para.  4.4. 

10.  Id.  at  2,  para.  4.3. 

11.  Headquarters,  Department  of  the  Army,  FM  3-07,  Stability  Operations  (2008),  available 
at  http://downloads.army.mil/docs/fm_3-07.pdf  [hereinafter  FM  3-07  (2008)]. 

12.  Headquarters,  Department  of  the  Army,  FM  3-07  (FM  100-20),  Stability  Operations  and 
Support  Operations  (2003),  available  at  http://cgsc.cdmhost.com/cgi-bin/showfile.exe?CISOROOT 
=/p4013coll6&CISOPTR=698cfilename=70.pdf#search=%22Stability%20Operations%20and 
%20Support%20Operations%22  [hereinafter  FM  3-07  (2003)]. 

13.  FM  3-07  (2008),  supra  note  11,  at  13,  para.  1-11. 

14.  FM  3-07  (2003),  supra  note  12,  at  1-4  (in  that  manual  stability  operations  are  defined 
also  to  include  peace  operations,  foreign  internal  defense  (e.g.,  counterinsurgency),  security  as- 
sistance, humanitarian  and  civic  assistance,  support  to  insurgencies  and  show  of  force). 

15.  See  FM  3-07  (2008),  supra  note  11,  Foreword. 

16.  See  Philip  Bobbitt,  Terror  and  Consent:  Wars  for  the  Twenty-First  Century  3 
(2008)  (In  referring  to  the  risks  posed  to  civilians  by  nuclear  or  biological  terrorism,  it  is  noted 
that  "these  risks  are  in  several  important  dimensions  indistinguishable  from  those  imposed  by 
the  terror  that  is  the  consequence  of  genocide  and  ethnic  cleansing  and  also  of  metropolitan 
earthquakes,  pandemics,  tidal  waves,  and  hurricanes"). 

17.  FM  3-07  (2008),  supra  note  11,  at  2-1,  para.  2-1. 

18.  Id. 

19.  See  C.E.  CALDWELL,  SMALL  WARS:  THEIR  PRINCIPLES  AND  PRACTICE  21  (University  of 
Nebraska  Press,  3rd  ed.  1996)  (1906);  see  also  US  Marine  Corps,  Small  Wars  Manual:  United 
States  Marine  Corps  1  ( 1940)  and  MAX  BOOT,  THE  SAVAGE  WARS  OF  PEACE:  SMALL  WARS  AND 
THE  RISE  OF  AMERICAN  POWER  xiv  (2002). 

20.  See  CHARLES  W.  GWYNN,  IMPERIAL  POLICING  3-4  (1934).  (The  author  identifies  three 
types  of  "police  duties"  performed  by  UK  military  forces:  small  wars,  acting  in  aid  of  the  civil 
power  and  "imperial  policing."  The  latter  type  of  operation  occurs  "when  normal  civil  control 
does  not  exist,  or  has  broken  down  to  such  an  extent  that  the  Army  becomes  the  main  agent  for 
the  maintenance  of  or  for  the  restoration  of  order."). 

2 1 .  See  Josef  Kunz,  The  Chaotic  Status  of  the  Laws  of  War  and  the  Urgent  Necessity  for  Their 
Revision,  45  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  37, 54  n.41  ( 195 1 )  (relying  on  a  quote 
from  P.C.  JESSUP,  A  MODERN  LAW  OF  NATIONS  188-89  ( 1948),  where  he  also  says,  "It  is  a  mis- 
take to  assume  that  the  acceptance  of  the  concept  of  an  international  police  force . . .  with  its  sub- 
sequent abolition  of  the  concept  of  'war'  in  a  legal  sense,  eliminates  the  necessity  for  the  legal 
regulation  of  the  rights  and  duties  of  those  who  are  active  participants  in  the  struggle"). 

22.  See  Headquarters  Department  of  the  Army  and  Air  Force,  FM  100-20/AFP  3-20,  Military 
Operations  in  Low  Intensity  Conflict,  at  ch.  1  (1990)  (superseded  by  FM  3-07  (2003),  which  in 
turn  was  replaced  in  2008),  available  at  http://www.globalsecurity.org/military/library/policy/ 
army/ fm/ 100-20/  10020chl.htm  ("Low  intensity  conflict  is  a  political-military  confrontation  be- 
tween contending  states  or  groups  below  conventional  war  and  above  the  routine,  peaceful  com- 
petition among  states.  It  frequently  involves  protracted  struggles  of  competing  principles  and 
ideologies.  Low  intensity  conflict  ranges  from  subversion  to  the  use  of  armed  force.  It  is  waged  by 


426 


Kenneth  Watkin 


a  combination  of  means,  employing  political,  economic,  informational,  and  military  instru- 
ments. Low  intensity  conflicts  are  often  localized,  generally  in  the  Third  World,  but  contain  re- 
gional and  global  security  implications"). 

23.  See  FM  3-07  (2003),  supra  note  12,  at  1-1  (where  the  relationship  between  stability  oper- 
ations and  military  operations  other  than  war  is  noted  as  follows:  "  [t]  he  army  conducts  full  spec- 
trum operations  to  accomplish  missions  in  both  war  and  military  operations  other  than  war 
(MOOTW).  Full  spectrum  operations  include  offensive,  defensive,  stability,  and  support  opera- 
tions   Offensive  and  defensive  operations  normally  dominate  military  operations  in  war,  as 

well  as  some  smaller  scale  contingencies.  On  the  other  hand,  stability  operations  and  support  op- 
erations predominate  in  MOOTW  that  may  include  certain  smaller  scale  contingencies  and 
peacetime  military  engagements"). 

24.  YORAM  DINSTEIN,  WAR,  AGGRESSION  AND  SELF-DEFENCE  307-08  (4th  ed.  2005). 

25.  Id.  at  310-15  (for  an  explanation  of  non-Article  42  enforcement  actions). 

26.  Charles  C.  Krulak,  The  Strategic  Corporal:  Leadership  in  the  Three  Block  War,  MARINES 
MAGAZINE,  Jan.  1999,  at  3,  available  at  http://www.au.af.mil/au/awc/awcgate/usmc/strategic 
_corporal.htm  ("Modern  crisis  responses  are  exceedingly  complex  endeavors.  In  Bosnia,  Haiti 
and  Somalia  the  unique  challenges  of  military  operations  other  than  war  (MOOTW)  were  com- 
bined with  the  disparate  challenges  of  mid- intensity  conflict.  The  Corps  has  described  such  con- 
flicts as  the  three  block  war,  contingencies  in  which  Marines  may  be  confronted  with  the  entire 
spectrum  of  tactical  challenges  in  the  span  of  a  few  hours  within  the  space  of  three  adjacent  city 
blocks"). 

27.  See  Headquarters,  Department  of  the  Army  &  Headquarters,  Marine  Corps  Combat  De- 
velopment Command,  FM  3-24/MCWP  3-33.5,  Counterinsurgency  (2006),  at  1-8,  para.  1-37, 
available  at  http://www.usgcoin.org/library/doctrine/COIN-FM3-24.pdf. 

28.  Id.  at  1-1,  para.  1-2. 

29.  Id. 

30.  Mat  1-8,  para.  1-37. 

31.  Id. 

32.  Id.  at  2-5,  para.  2-18  ("COIN  draws  heavily  on  a  broad  range  of  the  joint  force's  capabil- 
ities and  requires  a  different  mix  of  offensive,  defensive,  and  stability  operations  from  that  ex- 
pected in  major  combat  operations"). 

33.  Id.  at  1-1,  para.  1-2  (emphasis  added). 

34.  LAWRENCE  A.  YATES,  THE  US  MILITARY'S  EXPERIENCE  IN  STABILITY  OPERATIONS, 
1789-2005  (2006),  available  at  http://www-cgsc.army.mil/carl/download/csipubs/yates.pdf. 

35.  See  Daniel  Smith,  World  at  War  (The  Defense  Monitor,  Center  for  Defense  Information, 
Washington,  D.C.),  Jan./Feb.  2007,  http://www.cdi.org/PDFs/DMJanFeb07.pdf. 

36.  Ann  Scott  Tyson,  Gates  Criticizes  Conventional  Focus  At  Start  of  Iraq  War,  WASHINGTON 
POST,  Sept.  30,  2008,  at  A04. 

37.  Convention  (I)  for  the  Amelioration  of  the  Condition  of  the  Wounded  and  Sick  in 
Armed  Forces  in  the  Field,  Aug.  12, 1949, 6  U.S.T.  3114,  75  U.N.T.S.  31;  Convention  (II)  for  the 
Amelioration  of  the  Condition  of  Wounded,  Sick  and  Shipwrecked  Members  of  Armed  Forces  at 
Sea,  Aug.  12, 1949, 6  U.S.T.  3217,  75  U.N.T.S.  85;  Convention  (III)  Relative  to  the  Treatment  of 
Prisoners  of  War,  Aug.  12, 1949, 6  U.S.T.  3316, 75  U.N.T.S.  135;  and  Convention  (IV)  Relative  to 
the  Protection  of  Civilian  Persons  in  Time  of  War,  Aug.  12, 1949, 6  U.S.T.  3516, 75  U.N.T.S.  218 
[hereinafter  Fourth  Geneva  Convention];  all  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR 
(Adam  Roberts  &  Richard  Guelff  eds.,  3d  ed.  2000)  at  197,  222,  244  and  301,  respectively. 

38.  See  Robert  Kolb,  Origin  of  the  Twin  Terms  Jus  Ad  Bellum/Jus  in  Bello,  INTERNATIONAL 
REVIEW  OF  THE  RED  CROSS  553,  560-62  (1997).  (The  terms  jus  ad  bellum  and;'«s  in  bello  appear 


427 


A  Guiding  Framework  for  "Small  Wars"  and  Other  Conflicts 

to  have  first  come  into  usage  in  the  1930s.  Widespread  use  appears  to  have  only  started  after 
World  War  II.). 

39.  Ian  Brownlie,  International  Law  and  the  Use  of  Force  by  States  3  (1963)  (in 
"which  every  sovereign  entity  may  decide  on  the  occasion  for  war"). 

40.  Christine  Gray,  International  Law  and  the  Use  of  Force  5  (2d  ed.  2004). 

41.  See  FM  3-07  (2008),  supra  note  1 1,  at  1-1,  para.  1-1.  See  also  OXFORD  ENGLISH  DICTIO- 
NARY 950  (Catherine  Soanes  ed.,  2002)  ("war  n.  1  a  state  of  armed  conflict  between  different  na- 
tions, states,  or  armed  groups.  2  a  sustained  contest  between  rivals  or  campaign  against 
something  undesirable:  a  war  on  drugs. . . ."  (emphasis  added)). 

42.  Quincy  Wright,  The  Outlawry  of  War  and  the  Law  of  War,  47  AMERICAN  JOURNAL  OF  IN- 
TERNATIONAL LAW  365  (1953). 

43.  See  Christopher  Greenwood,  The  Concept  of  War  in  Modern  International  Law,  36  IN- 
TERNATIONAL and  Comparative  Law  Quarterly  283, 283  (1987). 

44.  See  COMMENTARY  I  GENEVA  CONVENTION  FOR  THE  AMELIORATION  OF  THE  CONDI- 
TION OF  THE  WOUNDED  AND  SICK  IN  ARMED  FORCES  IN  THE  FIELD  32  (Jean  S.  Pictet  ed.,  1960) 
[hereinafter  ICRC  COMMENTARY].  A  similar  commentary  was  published  for  each  of  the  four 
Geneva  Conventions.  Because  Articles  2  and  3  are  identical — or  common — to  each  Convention, 
however,  the  commentary  for  these  articles  is  also  identical  in  each  of  the  four  commentaries. 
("Any  difference  arising  between  two  States  and  leading  to  the  intervention  of  armed  forces  is  an 
armed  conflict  within  the  meaning  of  Article  2,  even  if  one  of  the  Parties  denies  the  existence  of  a 
state  of  war.  It  makes  no  difference  how  long  the  conflict  lasts,  or  how  much  slaughter  takes 
place."). 

45.  See  also  Protocol  Additional  (I)  to  the  Geneva  Conventions  of  12  August  1949,  and  Re- 
lating to  the  Protection  of  Victims  of  International  Armed  Conflicts  art.  3(b),  June  8, 1977, 1 125 
U.N.T.S.  3,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  37,  at  422. 

46.  See  ICRC  COMMENTARY,  supra  note  44,  at  38-48  (for  an  outline  of  the  efforts  to  have  the 
provisions  of  the  Geneva  Conventions  apply  to  internal  armed  conflict).  See  also  LINDSAY  MOIR, 
The  Law  of  Internal  Armed  Conflict  23-29  (2002). 

47.  See  Protocol  Additional  (II)  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating 
to  the  Protection  of  Victims  of  Non-International  Armed  Conflicts  art.  1(2),  June  8, 1977, 1125 
U.N.T.S.  609,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  37,  at  483. 

48.  See  International  Humanitarian  Law — Treaties  &  Documents,  http://www.icrc.org/ 
ihl.nsf/INTRO?OpenView  (last  visited  Feb.  4,  2009)  (where  164  countries  are  identified  to  be 
States  party  to  Additional  Protocol  II). 

49.  See  MOIR,  supra  note  46,  at  101-03. 

50.  See,  e.g.,  the  Chemical  Weapons  Convention;  the  Amended  Protocol  II  to  the  Conven- 
tion on  Certain  Conventional  Weapons;  the  1997  Convention  on  the  Use,  Stockpiling,  Produc- 
tion and  Transfer  of  Anti-Personnel  Mines  and  on  Their  Destruction;  the  1998  Rome  Statute; 
and  the  1999  Second  Protocol  to  the  1954  Hague  Convention  for  the  Protection  of  Cultural 
Property. 

51.  See  Prosecutor  v.  Tadic,  Case  No.  IT-94-1-AR72,  Appeal  on  Jurisdiction,  para.  94  (Oct. 
2,  1995),  reprinted  in  35  INTERNATIONAL  LEGAL  MATERIALS  32  (1996),  available  at  http:// 
www.un.org/icty/tadic/appeal/decision-e/51002.htm. 

52.  See  JEAN-MARIE  HENCKAERTS  &  LOUISE  DOSWALD-BECK,  CUSTOMARY  INTERNA- 
TIONAL Humanitarian  Law  (2005)  (2  volumes). 

53.  Legal  Consequences  of  the  Construction  of  a  Wall  in  the  Occupied  Palestinian  Territory, 
Advisory  Opinion,  2004  I.C.J.  136  (July  9),  reprinted  in  43  INTERNATIONAL  LEGAL  MATERIALS 


428 


Kenneth  Watkin 


1009,   1050   (2004),  available  at  http://www.icj-cij.org/docket/fil/131/1671.pdf  [hereinafter 
Wall]. 

54.  Id.  (The  court  distinguished  the  terrorist  threat  by  Palestinian  groups  as  different  than  Al 
Qaeda  attacks  on  the  United  States  on  the  basis  that  Israel  exercises  "control"  over  the  Occupied 
Territories.). 

55.  See  GRAY,  supra  note  40,  at  145-49  and  DlNSTEIN,  supra  note  24,  at  195-96  for  a  discus- 
sion of  the  Nicaragua  case  and  the  issues  raised  by  the  concept  of  "frontier  incidents." 

56.  Military  and  Paramilitary  Activities  (Nicar.  v.  U.S.),  1986  I.C.J.  14  (June  27). 

57.  See  Tadic,  supra  note  51,  para.  70. 

58.  See  Prosecutor  v.  Boskoski,  Case  No.  IT-04-82-T,  Judgement,  para.  176  (July  10, 2008), 
available  at  http://www.icty.Org/x/cases/boskoski_tarculovski/tjug/en/0807 10.pdf. 

59.  Juan  Carlos  Abellav.  Argentina,  Case  11.137,  Inter- Am.  C.H.R.,  Report  No.  55/97,  OEA/ 
Ser.L./V./II.95,  doc.  7  rev.  271  (1997),  reprinted  in  13  INTER- AMERICAN  YEARBOOK  ON  HUMAN 
RIGHTS  602  (Inter- American  Commission  on  Human  Rights  ed.,  1999).  This  approach  has  been 
the  subject  of  critical  comment  because  it  does  not  take  into  account  the  duration  of  the  con- 
frontation. See  LIESBETH  ZEGVELD,  THE  ACCOUNTABILITY  OF  ARMED  OPPOSITION  GROUPS  IN 

International  Law  137-38  (2002). 

60.  DlNSTEIN,  supra  note  24,  at  247  (where  the  term  "extra-territorial  law  enforcement"  is 
used  to  describe  a  form  of  self-defense  where  recourse  is  made  to  cross-border  counterforce 
against  terrorists  and  armed  bands). 

61.  See  Kunz,  supra  note  21,  at  54  n.41  ("It  is  a  mistake  to  assume  that  the  acceptance  of  the 
concept  of  an  international  police  force . . .  with  its  subsequent  abolition  of  the  concept  of 'war' 
in  a  legal  sense,  eliminates  the  necessity  for  the  legal  regulation  of  the  rights  and  duties  of  those 
who  are  active  participants  in  the  struggle"). 

62.  See  Office  of  the  Judge  Advocate  General,  Canadian  Forces  Doctrine  Manual:  The  Law  of 
Armed  Conflict  at  the  Operational  and  Tactical  Level,  B-GJ-005-104/FP-021  17-1,  para.  1702 
(2001),  available  athttp://www.cfd-cdf.forces.gc.ca/sites/page-eng.asp?page=3481  (follow  Law 
of  Armed  Conflict  hyperlink)  ("[t]oday  a  significant  number  of  armed  conflicts  in  which  the  CF 
maybe  involved  are  non-international  in  nature.  As  stated,  the  law  applicable  to  such  conflicts  is 
limited.  It  is  CF  policy,  however,  that  the  CF  will,  as  a  minimum,  apply  the  spirit  and  principles  of 
the  LOAC  during  all  operations  other  than  domestic  operations")  and  the  United  Nations  UN 
Secretary-General,  Bulletin  on  the  Observance  by  United  Nations  forces  of  international  hu- 
manitarian law,  U.N.  Doc.  ST/SGB/1999/13,  reprinted  in  38  INTERNATIONAL  LEGAL  MATERIALS 
1656  (1999)  (see  section  1  where  it  is  indicated  the  "fundamental  principles  and  rules  of  interna- 
tional humanitarian  law"  are  applicable  in  situations  of  armed  conflict,  which  include  "enforce- 
ment actions,  or  in  peacekeeping  operations  when  the  use  of  force  is  permitted  in  self-defence"). 
For  background  to  the  introduction  of  the  "spirit  and  principles"  approach  to  applying  humani- 
tarian law  during  United  Nations  operations,  see  MOIR,  supra  note  46,  at  76-77. 

63.  Department  of  Defense,  Directive  231 1.01E,  DoD  Law  of  War  Program,  para.  4.1  (2006) 
("Members  of  the  DoD  Components  comply  with  the  law  of  war  during  all  armed  conflicts, 
however  such  conflicts  are  characterized,  and  in  all  other  military  operations"). 

64.  Legality  of  the  Threat  or  Use  of  Nuclear  Weapons,  Advisory  Opinion,  1996  I.C.J.  226, 
para.  26  (July  8);  and  Wall,  supra  note  53,  para.  106. 

65.  See  Adam  Roberts,  Prolonged  Military  Occupation:  The  Israeli-Occupied  Territories  Since 
1967, 84  American  Journal  of  International  Law  97-102  (1990). 

66.  See  Adam  Roberts,  What  Is  a  Military  Occupation?,  55  BRITISH  YEAR  BOOK  OF  INTERNA- 
TIONAL LAW  249,  250  (1984)  ("[o]ne  might  hazard  as  a  fair  rule  of  thumb  that  every  time  the 


429 


A  Guiding  Framework  for  "Small  Wars"  and  Other  Conflicts 

armed  forces  of  a  country  are  in  control  of  foreign  territory,  and  find  themselves  face  to  face  with 
the  inhabitants,  some  or  all  of  the  provisions  of  the  law  on  occupations  are  applicable"). 

67.  See  MOIR,  supra  note  46,  at  193-231  (for  a  discussion  of  the  interface  between  law  of 
armed  conflict  (Common  Article  3  and  Additional  Protocol  II)  and  human  rights  law). 

68.  See  SMITH,  supra  note  4,  at  3-4;  and  FM  3-07  (2008),  supra  note  1 1,  at  1-2,  para.  1-8  (for 
reference  to  war  among  the  people). 

69.  The  Fourth  Geneva  Convention  does  recognize  the  continuance  in  force  of  the  laws  of 
the  occupied  territory  and  the  maintenance  of  the  status  of  public  officials  or  judges. 

70.  Convention  No.  IV  Respecting  the  Laws  and  Customs  of  War  on  Land  and  its  Annex: 
Regulations  Concerning  the  Laws  and  Customs  of  War  on  Land,  Oct.  18, 1907, 36  Stat.  2277,  T.S. 
No.  539,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  War,  supra  note  37,  at  69. 

71.  Annex,  supra  note  70,  art.  43.  The  reference  here  to  "civil  life"  comes  from  the  French 
version,  which  some  have  suggested  was  incorrectly  phrased  as  "safety"  in  the  first  English  trans- 
lation. See  EYAL  BENVENISTI,  THE  INTERNATIONAL  LAW  OF  OCCUPATION  7  n.l  (2004)  (relying 
on  E.H.  Schwenk,  Legislative  Power  of  the  Military  Occupant  under  Article  43,  Hague  Regulations, 
54  YALE  LAW  JOURNAL  393  (1945)). 

72.  See  FM  3-07  (2008),  supra  note  1 1,  at  2-10  to  2-1 1,  para.  2-46. 

73.  See  Kenneth  Watkin,  Controlling  the  Use  of  Force:  A  Role  for  Human  Rights  Norms  in  Con- 
temporary Armed  Conflict,  98  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  1,  24-30  (2004). 

74.  See  Public  Committee  Against  Torture  in  Israel  et  al.  v.  Government  of  Israel  et  al.,  HCJ 
769/02,  Judgement  (Dec.  13,  2006),  availableat http://elyonl.court.gov.il/files_eng/02/690/007/ 
a34/02007690.a34.pdf. 

75.  Id.,  para.  40. 

76.  Kenneth  Watkin,  Maintaining  Law  and  Order  during  Occupation:  Breaking  the  Norma- 
tive Chains,  41  ISRAEL  LAW  REVIEW  175,  192-95  (2008). 

77.  See  CF  Doctrine  Hierarchy,  available  at  http://www.cfd-cdf.forces.gc.ca/websites/ 
Resources/dgfda/Joint%20Doctrine%20Hierarchy/doctrineHierarchy.gif. 

78.  Land  Operations,  B-GL-300-001/FP-000  (Jan.  1,  2008)  [hereinafter  Land  Operations 
Manual];  and  Counter-Insurgency  Operations,  B-GL-323-004/FP-003  (Dec.  13,  2008). 

79.  Land  Operations  Manual,  supra  note  78,  at  3-18  to  3-20. 

80.  Mat  3-18. 

81.  Public  Diplomacy  Division,  NATO  Handbook  155  (2006). 

82.  Nina  M.  Serafino,  Congressional  Research  Service,  Peacekeeping  and  Related  Stability 
Operations:  Issues  of  U.S.  Military  Involvement,  No.  IB94040  (2006),  available  at  http:// 
www.fas.org/sgp/crs/natsec/IB94040.pdf. 

83.  Center  for  Law  and  Military  Operations,  The  Judge  Advocate  General's  Legal  Center 
School  8c  Joint  Force  Judge  Advocate,  United  States  Joint  Forces  Command,  Rule  of  Law  Hand- 
book: Practitioner's  Guide  for  Judge  Advocates  i-ii  (July  2007)  (see  id.  at  ii  where  it  is  stressed  the 
Handbook  "is  not  intended  to  serve  as  US  policy  or  military  doctrine  for  rule  of  law  operations. 
[Center  for  Law  and  Military  Operations]  has  neither  the  resources,  nor  more  importantly  the 
mission,  to  propose  or  institute  doctrine  on  a  topic  upon  which  no  consensus  has  been 
achieved."  However,  it  is  also  noted,  id.  at  i,  that  military  lawyers  have  been  engaged  in  rule  of  law 
projects  since  the  invasion  of  Afghanistan  in  2001  and  "have  been  on  the  cutting  edge  of  the  ef- 
fort to  bring  stability  and  rule  of  law  support  to  the  embryonic  and  fragile  democratic  govern- 
ments in  both  Afghanistan  and  Iraq. ..."). 

84.  FM  3-07  (2008),  supra  note  1 1,  at  1-7,  para.  1-32. 


430 


XVII 


The  International  Legal  Framework  for 

Stability  Operations: 

When  May  International  Forces  Attack  or 

Detain  Someone  in  Afghanistan? 

Marco  Sassdli* 
I.  Introduction 

Whether  we  call  the  involvement  of  international  forces  in  Afghanistan  as- 
sistance to  the  Afghan  government  or  a  peace  operation,  a  stability  oper- 
ation, part  of  the  "war  on  terror,"  an  armed  conflict,  a  foreign  occupation  or  a  love 
affair,  and  whatever  the  legal  basis  of  such  involvement  may  be,  two  of  the  most 
important  tactical  and  humanitarian  issues  confronting  international  forces  are 
when  they  may  attack  or  detain  an  "enemy."  Concerning  detention,  the  key  issues 
are  on  what  legal  basis  and  according  to  what  procedure  the  decision  to  arrest  and 
detain  may  be  taken.  Two  branches  of  international  law  govern  attack  and  deten- 
tion: international  humanitarian  law  (IHL)  (or  the  law  of  armed  conflict)  and  in- 
ternational human  rights  law  (IHRL).  For  both  branches,  first,  a  question  of 
applicability  arises:  IHRL  applies  in  every  circumstance  and  to  everyone,  but  are 
the  armed  forces  of  States  bound  by  IHRL  when  acting  outside  their  national  terri- 
tories? As  for  IHL,  it  certainly  applies  to  armed  forces  acting  extraterritorially,  but 


*  Professor  of  International  Law  at  the  University  of  Geneva,  Switzerland,  and  Associate 
Professor  at  the  universities  of  Quebec  in  Montreal  and  of  Laval,  Canada.  This  article  will  also  be 
published  in  volume  39  of  the  Israel  Yearbook  on  Human  Rights  (forthcoming  2009). 


When  May  International  Forces  Attack  or  Detain  Someone  in  Afghanistan? 

it  applies  only  to  armed  conflicts  and  its  rules  on  the  issues  of  attack  and  detention 
are  probably  different  in  international  and  non-international  armed  conflicts.  Sec- 
ond, when  applicable,  for  both  IHL  and  IHRL  the  question  arises  as  to  when  they 
allow  (or  rather,  do  not  prohibit)  international  forces  to  deprive  enemies  of  their 
life  or  their  liberty.  Third,  if  both  branches  apply  and  lead  to  differing  results  on  the 
two  issues,  we  must  determine  which  of  the  two  prevails. 

In  this  article,  I  will  try  to  discuss  these  three  questions,  putting  the  emphasis  on 
the  substance  of  the  rules,  as  others  in  this  volume  have  extensively  discussed  the 
classification  of  the  conflict(s)  in  Afghanistan  under  IHL. 

When  I  refer  to  the  "enemies"  who  may  or  may  not  be  attacked  or  detained  un- 
der the  rules  to  be  discussed,  I  will  call  them  "fighters."  Who  maybe  attacked  or  de- 
tained for  what  reasons  is  obviously  one  of  the  questions  with  which  the  legal 
framework  must  deal;  even  if  the  answer  to  that  legal  question  were  clear,  one  of 
the  greatest  practical  difficulties  would  remain:  to  identify  whether  someone  be- 
longs to  those  categories.  However,  this  article  does  not  deal  with  thieves,  with 
harmless  civilians  who  may  become  incidental  victims  of  attacks  or  are  mistakenly 
targeted,  or  with  civilians  who  oppose  the  government  or  the  international  pres- 
ence without  using  force.  These  people  are  obviously  covered  by  the  rules  to  be  ex- 
plored, but  they  are  not  the  hard  cases  and  IHL  and  IHRL  do  not  prescribe  differing 
rules  on  them.  The  same  is  true  for  attacks  directed  against  people  who  actually  at- 
tack international  forces  while  they  are  engaged  in  such  attacks.  The  difficult  cases, 
with  regard  to  the  legality  of  attacks  and  the  legal  basis  for  their  detention,  are  per- 
sons whom  international  forces  believe  to  be  members  of  armed  groups,  such  as  Al 
Qaeda  and  the  Taliban.  I  will  explain  why  I  consider  that  mere  membership  in  such 
groups  is  not  sufficient,  but  that  the  person  must  also  have  a  fighting  function  to  be 
a  legitimate  target  of  attack.1 

II.  Applicability  of  IHL  to  the  Situation  in  Afghanistan 

It  is  uncontroversial  that  in  2008  the  level  of  violence  and  the  degree  of  organiza- 
tion of  the  Taliban  and,  at  least  in  Afghanistan,  of  Al  Qaeda  are  sufficiently  high  to 
make  IHL  applicable,  even  if  the  higher  requirements  of  intensity  and  organization 
of  the  parties  of  IHL  of  non-international  armed  conflicts  are  applied.2  The  United 
States  agrees,  indeed,  that  the  conflict  between  the  Taliban  and  the  Afghan  govern- 
ment is  not  of  an  international  character  and  that  this  characterization  is  not  al- 
tered by  the  fact  that  the  latter  is  heavily  supported  (if  not  kept  alive)  by 
international  forces.  The  only  construction  under  which  the  entire  conflict  in  Af- 
ghanistan could  still  (in  2008)  be  claimed  to  be  of  an  international  character  would 
be  to  recall  that  the  conflict  was  indeed  international  in  2001  because  it  was  fought 

432 


Marco  Sassoli 


between  the  United  States  and  the  Taliban  (who  constituted  the  de  facto  govern- 
ment of  Afghanistan)  and  to  consider  that  this  conflict  continues  until  the  defeat  of 
the  Taliban.  Most,  including  the  International  Committee  of  the  Red  Cross 
(ICRC),  consider  that  the  international  conflict  turned  into  a  conflict  not  of  an  in- 
ternational character  in  2002  when  the  Karzai  government  was  first  appointed  by 
the  Loya  Jirga5  and  then  elected  (since  this  new  government  of  Afghanistan  re- 
quested the  foreign  forces  to  support  its  continuing  fight  against  the  Taliban).  For- 
mally, however,  one  could  consider  that,  until  the  Taliban  are  completely  defeated, 
the  conflict  between  the  United  States  and  the  Taliban  maintains  its  international 
character  and  the  United  States  (or  the  UN  Security  Council)  could  not  have  al- 
tered this  classification  by  establishing,  recognizing  or  concluding  agreements  with 
a  new  local  government  in  the  territory  it  occupied  following  its  invasion.4  How- 
ever, this  is  certainly  not  the  thesis  of  the  United  States  and  it  encounters  different 
legal  problems,  inter  alia,  that  it  is  difficult  to  consider  free  elections  a  change  intro- 
duced by  the  occupying  power,  that  the  UN  Security  Council  has  given  its  blessing 
to  the  new  arrangements  and  that  UN  Security  Council  resolutions  prevail  over 
any  other  international  obligation  under  Article  103  of  the  UN  Charter. 

The  United  States  argues,  however,  that  beside  the  non-international  armed 
conflict  against  the  Taliban,  a  separate  international  armed  conflict  exists:  the  "war 
on  terror"  against  Al  Qaeda  and  its  associates. 

As  far  as  treaty  law  is  concerned,  international  armed  conflicts  are  mainly  gov- 
erned by  the  Geneva  Conventions  and  Additional  Protocol  I.5  Neither  the  United 
States  nor  Afghanistan  is  a  party  to  Protocol  I,  but  they  are  bound  by  the  many 
rules  of  the  latter  that  correspond  to  customary  international  law.  The  Geneva 
Conventions  apply  to  international  armed  conflicts.  Common  Article  2  to  the 
Conventions  states  that  they  "shall  apply  to  all  cases  of  declared  war  or  of  any  other 
armed  conflict  which  may  arise  between  two  or  more  of  the  High  Contracting 
Parties."  Only  States  can  be  parties  to  the  Conventions.  Al  Qaeda  is  not  a  State. 
Therefore,  the  Conventions  do  not  apply  to  a  conflict  between  the  United  States 
and  its  allies,  on  the  one  hand,  and  this  non- State  actor,  on  the  other  hand.  As  for 
customary  international  law,  there  is  no  indication  confirming  what  seems  to  be 
the  view  of  the  US  administration,  i.e.,  that  the  concept  of  international  armed 
conflict  under  customary  international  law  is  broader.6  State  practice  and  opinio 
juris  do  not  apply  the  law  of  international  armed  conflict  to  conflicts  between 
States  and  certain  non-State  actors.  On  the  contrary,  and  in  conformity  with  the 
tenets  of  the  Westphalian  system,  States  have  always  distinguished  between  con- 
flicts against  one  another,  to  which  the  whole  of  IHL  applied,  and  other  armed  con- 
flicts, to  which  they  were  never  prepared  to  apply  those  same  rules,  but  only  more 
limited  humanitarian  rules. 


433 


When  May  International  Forces  Attack  or  Detain  Someone  in  Afghanistan? 

III.  The  Applicability  of  International  Human  Rights  Law 

1.  Does  International  Human  Rights  Law  Apply  Extraterritorially? 

International  forces  in  Afghanistan  do  not  act  in  their  own  territories.  They  are 
therefore  bound  by  IHRL  only  if  its  obligations  bind  a  State  even  when  acting  be- 
yond that  State's  territory.  Article  1  of  both  the  American  Convention  on  Human 
Rights  and  the  European  Convention  on  Human  Rights  (ECHR)  clearly  state  that 
the  State  parties  must  secure  the  rights  listed  in  those  Conventions  to  everyone 
within  their  jurisdictions.  Under  the  jurisprudence  of  the  European  Court  of  Hu- 
man Rights  (ECtHR)  this  includes  an  occupied  territory.7 

On  the  universal  level,  under  the  International  Covenant  on  Civil  and  Political 
Rights  (ICCPR)  a  party  undertakes  "to  respect  and  to  ensure  to  all  individuals 
within  its  territory  and  subject  to  its  jurisdiction  the  rights  recognized ..."  (my  em- 
phasis). This  wording  and  the  negotiating  history  lean  toward  understanding  terri- 
tory and  jurisdiction  as  cumulative  conditions.8  The  United  States  and  Israel 
therefore  deny  that  the  Covenant  is  applicable  extraterritorially.9  The  International 
Court  of  Justice  (ICJ),10  the  UN  Human  Rights  Committee1 !  and  other  States12  are 
however  of  the  opinion  that  the  Covenant  equally  applies  in  an  occupied  terri- 
tory.13 From  a  teleological  point  of  view  it  would  indeed  be  astonishing  that  per- 
sons whose  rights  can  neither  be  violated  nor  protected  by  the  territorial  State  lose 
any  protection  of  their  fundamental  rights  against  the  State  who  can  actually  vio- 
late and  protect  their  rights. 

2.  How  Much  Control  Is  Necessary  to  Be  under  the  Jurisdiction  of  a  Foreign 
State? 

If  IHRL  applies  extraterritorially,  the  next  question  that  arises  is  when  a  person  can 
be  considered  to  be  under  the  jurisdiction  of  a  State.  Analysis  of  this  issue — the 
level  of  control  a  State  must  exercise  in  order  to  be  bound  by  its  international  hu- 
man rights  obligations — has  often  been  divided  according  to  treaty.  However, 
there  has  been  a  certain  amount  of  convergence  in  the  interpretation  of  jurisdic- 
tion in  recent  cases.14  The  Inter- American  Court  of  Human  Rights  and  the  Inter- 
American  Commission  on  Human  Rights  have  tended  to  adopt  broad  views  of 
what  may  give  rise  to  a  State  having  extraterritorial  jurisdiction.  The  widely  cited 
case  of  Alejandre  v.  Cuba  illustrates  that  physical  control  over  territory  exercised 
through  having  "boots  on  the  ground"  is  not  necessary  for  jurisdiction  to  arise  in 
the  Inter-American  system.  In  that  case,  the  Commission  held  that  the  applicants 
came  within  Cuban  jurisdiction  when  Cuba's  airplanes  fired  on  another  airplane 
flying  in  international  airspace.15 


434 


Marco  Sassdli 


As  for  the  European  Court  of  Human  Rights,  from  its  strictest  test  articulated  in 
Bankovic — that  a  State  must  exercise  effective  control  over  territory  by  being  phys- 
ically present  on  that  territory  in  order  to  have  jurisdiction16 — the  ECtHR  has 
moved,  over  the  past  decade,  to  applying  a  standard  that  does  not  always  require 
"boots  on  the  ground."  In  Issa,  the  ECtHR  looked  for  effective  territorial  control.  It 
found,  on  the  facts,  that  Turkish  forces  in  northern  Iraq  did  not  exhibit  that  level  of 
control  and  therefore,  in  its  decision  on  the  merits,  held  that  in  fact  the  Iraqi  appli- 
cants' claim  was  inadmissible.17  In  a  very  recent  case,  however,  the  ECtHR  has  held 
that  jurisdiction  can  flow  from  facts  not  unlike  those  in  Alexandre  v.  Cuba  (or  in- 
deed, in  Bankovic).  Pad  v.  Turkey  involved  a  skirmish  on  the  Turkish-Iranian  bor- 
der in  which  seven  Iranians  were  killed  by  Turkish  helicopter  gunships.  The  Court 
held  that 

it  is  not  required  to  determine  the  exact  location  of  the  impugned  events,  given  that  the 
Government  had  already  admitted  that  the  fire  discharged  from  the  helicopters  had 
caused  the  killing  of  the  applicants'  relatives. . . .  Accordingly,  the  Court  finds  that  the 
victims  of  the  impugned  events  were  within  the  jurisdiction  of  Turkey  at  the  material 
time.18 

This  conclusion  is  clearly  at  variance  with  Bankovicy  where,  as  one  commentator 
put  it,  "the  Court  found  that  jurisdiction  could  not  arise  by  the  mere  fact  of  drop- 
ping bombs  on  individuals."19  It  would  be  specious  if,  in  the  future,  the  Court  were 
to  distinguish  Pad  exclusively  on  the  grounds  that  Turkey  had  not  formally  con- 
tested that  it  had  jurisdiction  over  the  applicants'  relatives. 

Conceivably,  for  all  treaties,  jurisdiction  could  arise  through  a  State's  extraterri- 
torial exercise  of  control  over  persons.  However,  it  seems  likely  that  courts  will  at 
times  also  look  for  effective  control  over  territory.  The  factors  identified  by  the 
ECtHR  in  Issa  as  indicators  of  such  control  were  (1)  the  number  of  soldiers  on  the 
ground,  (2)  the  size  of  the  area  controlled,  (3)  the  degree  of  control  exercised  (i.e., 
whether  checkpoints,  etc.  were  established)  and  (4)  the  duration  of  the  exercise  of 
control.20  The  first  and  third  factors  are  valid  indicators  to  measure  something  as 
nebulous  as  "control";  however,  with  all  due  respect  to  the  Court,  the  second  and 
fourth  factors  bring  little  to  the  analysis.  All  other  things  being  equal,  it  is  difficult 
to  imagine  why  it  would  make  a  difference  whether  foreign  forces  controlled  a  vast 
area  or  only  a  village.  The  fourth  factor,  the  duration  of  control,  may  be  helpful  for 
a  Court  reviewing  actions  long  after  the  fact,  but  it  fails  to  provide  States  and  their 
forces  or  agents  with  a  clear  indication  of  when  they  begin  to  be  responsible  for  re- 
specting (and  possibly  even  protecting)  the  human  rights  of  the  people  in  their 
care. 


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When  May  International  Forces  Attack  or  Detain  Someone  in  Afghanistan? 

In  my  view,  a  solution  could  be  found  through  a  functional  approach,  distin- 
guishing the  degree  of  control  necessary  according  to  the  right  to  be  protected.21 
Such  an  approach  would  reconcile  the  object  and  purpose  of  human  rights  to  pro- 
tect everyone  with  the  need  not  to  bind  States  by  guarantees  they  cannot  deliver 
outside  their  territories  and  the  protection  of  the  sovereignty  of  the  territorial  State 
(which  may  be  encroached  upon  by  international  forces  protecting  human  rights 
against  anyone  other  than  themselves).  For  our  two  issues,  this  functional  ap- 
proach would  mean  that  international  forces  have  to  respect  the  right  to  life  of  a 
person  simply  by  omitting  to  attack  that  person  as  soon  as  those  forces  could  affect 
that  right  by  their  attack,  while  they  would  have  to  respect  the  procedural  guaran- 
tees inherent  in  the  right  to  personal  freedom  only  as  long  as  they  physically  detain 
the  person.  The  applicability  of  IHRL  obviously  does  not  yet  determine  whether  its 
guarantees  or  those  of  IHL  prevail  in  a  given  situation.  All  on  the  contrary,  the  lex 
specialis  issue  only  arises  if  both  branches  apply  to  a  certain  situation. 

3.  What  If  Jurisdiction  Is  Shared  by  Different  Coalition  Partners  and  a  Host 
Government? 

If  IHRL  applies  extraterritorially,  even  if  we  knew  exactly  what  degree  of  control  is 
necessary  to  put  someone  under  the  jurisdiction  of  a  State,  in  the  case  of  coalition 
operations  such  as  those  in  Afghanistan  additional  questions  arise.  Can  the  degree 
of  control  necessary  to  exercise  jurisdiction  result  from  cumulative  contributions 
by  different  States,  including  the  host  State?  In  such  a  case,  does  every  contributing 
State  have  jurisdiction?  These  questions  have  been  raised  but  not  exhaustively  ex- 
amined before  the  ECtHR.  In  Hussein  v.  Albania  et  al,  the  Court  held  that  the  ap- 
plicant, Saddam  Hussein,  had  failed  to  furnish  sufficient  proof  that  the  respondent 
States  had  control  over  Iraq  or  over  him  at  the  time  of  his  detention  (or  arrest) 
from  which  jurisdiction  would  flow.22  The  Court  seemed  to  suggest  that  jurisdic- 
tion would  not  automatically  exist  for  States  participating  in  a  "coalition  with  the 
US,  when  the  impugned  actions  were  carried  out  by  the  US,  when  security  in  the 
zone  in  which  those  actions  took  place  was  assigned  to  the  US  and  when  the  overall 
command  of  the  coalition  was  vested  in  the  US."23  Given  the  last-mentioned 
specificities,  there  is  no  prima  facie  reason  to  exclude  that  collective  control  could 
suffice  to  establish  jurisdiction.  A  case  that  provides  more  guidance  on  this  issue  is 
Hess  v.  United  Kingdom,  which  dealt  with  an  application  by  Rudolph  Hess'  wife  for 
his  release  from  Spandau  Prison.  At  the  relevant  time,  the  prison  was  under  the 
control  of  the  four  Allied  powers  in  Germany  following  the  Second  World  War. 
The  European  Commission  on  Human  Rights,  in  determining  whether  the  prison 
came  within  the  UK's  jurisdiction,  accepted  a  priori  the  premise  that  the  ECHR 
could  apply  to  the  activities  of  British  forces  in  Berlin.  However,  it  took  into 

436 


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account  the  fact  that  decision-making  power  regarding  the  prison  was  by  unani- 
mous agreement  between  all  four  Allied  powers.  As  such,  it  held  that: 

. . .  the  United  Kingdom  acts  only  as  a  partner  in  the  joint  responsibility  which  it  shares 
with  the  three  other  Powers.  The  Commission  is  of  the  opinion  that  the  joint  authority 
cannot  be  divided  into  four  separate  jurisdictions  and  that  therefore  the  United 
Kingdom's  participation  in  the  exercise  of  the  joint  authority  and  consequently  in  the 
administration  and  supervision  of  Spandau  Prison  is  not  a  matter  "within  the 
jurisdiction"  of  the  United  Kingdom,  within  the  meaning  of  Art.  1  of  the 
Convention.24 

This  holding  would  seem  to  exclude  the  possibility  of  jurisdiction  flowing  from 
collective  control  during  a  multilateral  operation.  However,  as  one  author  has  ob- 
served, the  Commission  was  particularly  troubled  by  the  lack  of  executive  decision- 
making power  of  the  UK  in  regard  to  the  prison.25  Logically,  if  a  State  participating 
in  a  multilateral  operation  nevertheless  retains  executive  decision-making  power 
over  its  forces  and  personnel,  there  is  no  reason  to  deny  jurisdiction. 

Moreover,  any  agreement  between  States  participating  in  a  multilateral  opera- 
tion affecting  that  kind  of  decision-making  power  could  run  afoul  of  a  State's  obli- 
gations. In  Hess,  the  Commission  wrote: 

The  conclusion  by  the  respondent  Government  of  an  agreement  concerning  Spandau 
prison  of  the  kind  in  question  in  this  case  could  raise  an  issue  under  the  Convention  if  it 
were  entered  into  when  the  Convention  was  already  in  force  for  the  respondent 
Government.  The  agreement  concerning  the  prison,  however,  came  into  force  in 
1945.26 

On  the  two  issues  dealt  with  in  this  article,  I  conclude  as  follows.  No  contribut- 
ing State  may  make  a  deliberate  causal  contribution  to  a  violation  of  the  right  to  life 
of  any  person.  However,  a  contributing  State  that  is  not  an  occupying  power  does 
not  exercise  the  level  of  jurisdiction  over  a  person  that  would  oblige  it  to  protect 
that  person's  right  to  life  against  other  coalition  partners  or  the  host  State.27  Ap- 
plying this  reasoning  to  Afghanistan,  the  coalition  and  the  Afghan  authorities  col- 
lectively exercise  effective  control,  but,  for  the  international  coalition  partners,  this 
does  not  give  rise  to  the  positive  obligations  associated  with  the  right  to  life  (i.e.,  to 
protect  it  against  third  parties).  The  responsibility  for  ensuring  the  respect  of  that 
aspect  of  the  right  to  life  remains  with  the  Afghan  government,  which,  to  give  effect 
to  it,  may  have  a  due  diligence  obligation  regarding  the  conduct  of  coalition  forces. 
As  for  detainees,  even  a  State  which  is  not  an  occupying  power  must  offer  any  per- 
son it  actually  detains,  independently  of  whether  it  also  arrested  that  person  or 


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When  May  International  Forces  Attack  or  Detain  Someone  in  Afghanistan? 

not,28  the  rights  that  detainee  has  during  that  phase  of  detention;  however,  such 
rights  may  also  be  respected  by  measures  actually  taken  by  another  coalition  part- 
ner or  the  host  State. 

In  my  view,  the  same  analysis  must  be  made  when  different  coalition  partners 
and  a  host  State  are  bound  by  differing  treaty  obligations.  Every  State  has  to  comply 
with  its  own  obligations  concerning  its  own  contribution.  In  addition,  a  State  actu- 
ally detaining  a  person  must  protect  the  rights  of  that  person  even  against  States 
not  bound  to  grant  such  rights. 

4.  Who  Could  Proceed  to  Admissible  Derogations? 

Under  normal  circumstances,  a  State's  ability  to  derogate  from  its  obligations  un- 
der human  rights  treaties  is  limited  to  situations  in  which  the  security  of  the  State 
itself  is  in  jeopardy.29  Can  this  requirement  be  met  when  a  State's  forces  are  in- 
volved in  a  multilateral  operation  abroad?  Lord  Bingham  of  Cornhill  wrote  in  Al- 
Jedda  that  the  power  to  derogate 

may  only  be  exercised  in  time  of  war  or  other  public  emergency  threatening  the  life  of 
the  nation  seeking  to  derogate,  and  only  then  to  the  extent  strictly  required  by  the 

exigencies  of  the  situation It  is  hard  to  think  that  these  conditions  could  ever  be  met 

when  a  state  had  chosen  to  conduct  an  overseas  peacekeeping  operation,  however 
dangerous  the  conditions,  from  which  it  could  withdraw.30 

Lord  Bingham  went  on  to  add:  "The  Secretary  of  State  does  not  contend  that  the 
UK  could  exercise  its  power  to  derogate  in  Iraq  (although  he  does  not  accept  that  it 
could  not)."31 

In  my  view,  one  cannot  simultaneously  hold  a  State  accountable  because  it  has  a 
certain  level  of  control  abroad  and  deny  it  the  possibility  to  derogate  because  there 
is  no  emergency  on  that  State's  own  territory.  An  emergency  on  the  territory  where 
the  State  has  a  certain  limited  control  must  be  sufficient. 

5.  What  Is  the  Impact  of  a  UN  Mandate? 

Normally,  the  legality  or  illegality  of  an  exercise  of  jurisdiction  does  not  matter  for 
the  applicability  of  IHRL.32  No  one  denies  that  human  rights  most  typically  apply 
to  the  most  lawful  exercise  of  jurisdiction:  territorial  jurisdiction.  The  ECtHR  held 
that  the  responsibility  of  a  State  also  arose  "when  as  a  consequence  of  military  ac- 
tion— whether  lawful  or  unlawful — it  exercises  effective  control  of  an  area  outside 
its  national  territory."33  Theoretically,  UN  Security  Council  resolutions  could,  un- 
der Article  103  of  the  UN  Charter,  prevail  over  IHRL  obligations  of  States  (how- 
ever, the  extent  to  which  they  may  do  so  is  controversial).  In  my  view,  any 


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derogation  from  IHRL  by  the  UN  Security  Council  must,  however,  be  explicit.  In 
Al-Jedda,  the  UK  House  of  Lords  considered  that  UN  Security  Council  Resolution 
1546,  authorizing  "internment  where . . .  necessary  for  imperative  reasons  of  secu- 
rity" qualified  the  UK's  obligations  under  Article  5  of  the  ECHR.34  In  my  view,  the 
wording  of  this  Resolution  is  not  explicit  enough  to  be  considered  a  mandate  to 
UN  member  States  not  to  provide  such  internees  with  the  procedural  guarantees 
they  are  obliged  to  offer  under  IHRL.  In  any  case,  the  UN  Security  Council  resolu- 
tions concerning  Afghanistan  contain  no  language  similar  to  that  of  Resolution 
1546  which  could  be  claimed  to  govern  the  admissible  reasons  of  detention. 

In  my  view,  UN  Security  Council  resolutions  must  be  interpreted  whenever 
possible  in  a  manner  compatible  with  the  rest  of  international  law.  The  mandate  of 
the  Security  Council  to  maintain  international  peace  and  security  includes  the  au- 
thorization of  the  use  of  force.  How  such  force  maybe  used  is,  however,  governed 
by  other  branches  of  international  law,  including  IHRL.  No  one  would  claim  that  a 
UN  Security  Council  resolution  urging  States  to  prevent  acts  of  terrorism  implic- 
itly authorizes  torture  or  summary  executions.  Beyond  that,  it  is  often  argued  that 
even  the  Security  Council  must  comply  with  ius  cogens35  and  the  human  rights  dis- 
cussed here  belong  to  ius  cogens. 

A  distinct  question  relates  to  situations  where  foreign  forces  are  participating  in 
a  peace  operation  in  a  way  that  their  acts  can  be  attributed  only  to  the  United  Na- 
tions. A  much-criticized  recent  judgment  suggests  that  in  such  a  case  the  sending 
State  will  not  have  jurisdiction  for  the  purposes  of  its  obligations  under  human 
rights  treaties.36  Indeed,  this  judgment  runs  counter  to  explicit  statements  by  States 
and  to  practice.37  In  my  view,  here  as  elsewhere,  everything  depends  on  the  facts.  It 
may  well  be  that  a  State  contributes  troops  to  a  peace  operation  in  such  a  way  that  it 
no  longer  has  control  over  what  those  troops  do  and  that  the  exclusive  command 
and  control  is  with  the  UN,  with  another  international  organization  or  with  a  third 
State.  In  fact,  this  is  the  situation  the  drafters  envisaged  in  Articles  43-47  of  the  UN 
Charter,  which  have  remained  a  dead  letter.  In  reality,  contributing  States  retain  a 
very  large  degree  of  control  over  their  forces.  Everyone  familiar  with  ISAF  in  Af- 
ghanistan knows  of  the  national  caveats  discussed  in  other  contributions  to  this 
volume.  If  UN  Security  Council  resolutions  and  NATO  rules  allow  a  contributing 
State  to  opt  out  of  a  certain  kind  of  operation,  out  of  any  given  operation  or  out  of 
certain  methods  to  implement  them,  that  State  has  enough  control  over  the  acts  of 
its  own  troops  to  be  responsible  for  their  conformity  with  its  human  rights  obliga- 
tions. The  case  of  joint  control  by  a  State  and  an  international  organization  can  be 
dealt  with  similarly  to  the  case  of  joint  control  by  several  States.38  However,  a  mem- 
ber State  of  an  organization  has  a  continuing  responsibility  to  ensure  that  an 


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When  May  International  Forces  Attack  or  Detain  Someone  in  Afghanistan? 

organization,  to  which  it  delegates  conduct  that  may  have  implications  in  terms  of 
human  rights,  complies  with  the  corresponding  standards.39 

IV.  The  Substantive  Rules  of  International  Humanitarian  Law 

1.  On  Attacks 

a)  The  Traditional  Answer  of  Humanitarian  Law  of  International  Armed  Conflicts 
In  international  armed  conflicts,  members  of  armed  forces  belonging  to  a  party  to 
the  conflict  are  combatants.  Combatants  may  be  attacked  at  any  time  until  they 
surrender  or  are  otherwise  hors  de  combat,  and  not  only  while  actually  threatening 
the  enemy.  Combatants  are  part  of  the  military  potential  of  the  enemy  and  it  is 
therefore  always  lawful  to  attack  them  for  the  purpose  of  weakening  that  potential. 
Beside  combatants,  civilians,  too,  may  be  attacked,  but  only  for  such  time  as  they 
directly  participate  in  hostilities.40  The  traditional  understanding  is  that  no  rule 
restricts  the  use  of  force  against  combatants  to  only  those  circumstances  when  they 
cannot  be  captured.  Within  IHL,  this  view  has  been  challenged  based  on  the  princi- 
ple of  military  necessity  as  a  restriction  on  all  violence41  and  the  prohibition  of 
treacherous  killings.42  However,  neither  of  these  understandings  has  been  translated 
into  actual  battlefield  instructions,  and  even  less  into  actual  battlefield  behavior.43 

Even  attacks  directed  at  combatants  are  subject  to  the  proportionality  principle, 
but  in  IHL  this  principle  protects  only  civilians  incidentally  affected44  and  does  not 
require  a  proportionality  evaluation  between  the  harm  inflicted  on  the  combatant 
and  the  military  advantage  drawn  from  the  attack.  The  same  is  true  for  precaution- 
ary measures  in  attack,  which  must  only  be  taken  for  the  benefit  of  the  civilian 
population. 

b)  The  Uncertain  Answer  of  the  Treaty  Rules  of  IHL  of  Non-international  Armed 
Conflicts 

In  contradistinction  to  international  armed  conflicts,  it  is  not  clear  under  the  treaty 
law  of  non- international  armed  conflicts  when  an  enemy  fighter  may  be  attacked. 
Indeed,  neither  Article  3  common  to  the  Geneva  Conventions  nor  Protocol  II  refers  to 
"combatants"  because  States  did  not  want  to  confer  on  anyone  in  non-international 
armed  conflicts  the  right  to  participate  in  hostilities  and  the  corresponding  com- 
batant immunity.  Those  provisions  prohibit  "violence  to  life  and  person,  in  partic- 
ular murder,"  directed  against  "persons  taking  no  active  part  in  hostilities," 
including  those  who  have  ceased  to  take  part  in  hostilities.45  Specifically  addressing 
the  conduct  of  hostilities,  Article  13  of  Protocol  II  prohibits  attacks  against  civilians 
"unless  and  for  such  time  as  they  take  a  direct  part  in  hostilities."46 

440 


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One  may  deduce  from  these  rules,  and  from  the  absence  of  any  mention  of 
"combatants,"  that  everyone  is  a  civilian  in  a  non-international  armed  conflict  and 
that  no  one  may  be  attacked  unless  he  or  she  directly  participates  in  hostilities. 
However,  first,  it  would  be  astonishing  that  Article  13  uses  the  term  "civilian"  in- 
stead of  a  broader  term  such  as  "person."47  Second,  if  everyone  is  a  civilian,  the 
principle  of  distinction,  which  is  a  fundamental  principle  of  IHL,  becomes  mean- 
ingless and  impossible  to  apply.48  Third,  Common  Article  3  confers  its  protection 
on  "persons  taking  no  active  part  in  hostilities,  including  members  of  armed  forces 
who  have  laid  down  their  arms  or  are  otherwise  hors  de  combat."  The  latter  part  of 
the  phrase  suggests  that  for  such  members  of  armed  forces49  it  is  not  sufficient  to 
no  longer  take  an  active  part  in  hostilities  to  be  immune  from  attack.  They  must 
take  additional  steps  and  actively  disengage.  Fourth,  on  a  more  practical  level,  to 
prohibit  government  forces  from  attacking  clearly  identified  fighters  unless  the  lat- 
ter engage  government  forces  is  militarily  unrealistic  as  it  would  oblige  them  to  act 
purely  reactively  while  facilitating  hit-and-run  operations  by  the  rebel  group. 
These  arguments  may  therefore  lead  to  the  conclusion  of  the  ICRC  Commentary  to 
Protocol  II  that  "[t]hose  belonging  to  armed  forces  or  armed  groups  may  be  at- 
tacked at  any  time."50 

This  conclusion  that  fighters  may  be  attacked,  as  in  international  armed  con- 
flicts, at  any  time,  until  they  disengage  from  the  armed  group,  may  be  reconciled 
with  the  text  of  the  treaty  provisions  in  two  ways.  First,  "direct  participation  in  hos- 
tilities" can  be  understood  to  encompass  the  simple  fact  of  remaining  a  member  of 
the  group51  or  of  keeping  a  fighting  function.52  Second,  fighters  can  be  considered 
not  to  be  "civilians"  (benefiting  from  the  protection  against  attacks  unless  and  for 
such  time  as  they  directly  participate  in  hostilities).53 

However,  this  conclusion  raises  difficult  questions  in  practice.  How  do  govern- 
ment forces  determine  membership  in  an  armed  group  while  the  individual  in 
question  does  not  commit  hostile  acts?  How  can  membership  in  the  armed  group 
be  distinguished  from  simple  affiliation  with  a  party  to  the  conflict  for  which  the 
group  is  fighting — in  other  words,  membership  in  the  political,  educational  or  hu- 
manitarian wing  of  a  rebel  movement?  In  my  view,  one  of  the  most  convincing  ave- 
nues is  to  allow  attacks  only  against  a  person  who  either  actually  directly 
participates  in  hostilities  or  has  a  function  within  the  armed  group  to  commit  acts 
that  constitute  direct  participation  in  the  hostilities.54 

c)  No  Answer  Is  Provided  to  the  Question  by  Customary  Humanitarian  Law 
According  to  the  ICRC  study,  Customary  International  Humanitarian  Law  (ICRC 
Customary  Law  Study),  in  both  international  and  non-international  armed  con- 
flicts, "[a]ttacks  may  only  be  directed  against  combatants."55  The  definition  of  the 

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When  May  International  Forces  Attack  or  Detain  Someone  in  Afghanistan? 

term  "combatant"  offered  for  non-international  armed  conflicts  makes  this  rule, 
however,  rather  circular,  if  it  simply  "indicat  [es]  persons  who  do  not  enjoy  the  pro- 
tection against  attacks  accorded  to  civilians."56  Other  rules  of  that  Study  indicate 
that "  [civilians  are  protected  against  attack  unless  and  for  such  time  as  they  take  a 
direct  part  in  hostilities"57  and  civilians  are  defined  as  "persons  who  are  not  mem- 
bers of  the  armed  forces."58  The  commentary  to  the  rules  must  however  admit  that 
while  "State  armed  forces  maybe  considered  combatants  . . .  practice  is  not  clear  as 
to  the  situation  of  members  of  armed  opposition  groups,"59  but  rather  "ambiguous 
as  to  whether  . . .  [they]  are  considered  members  of  armed  forces  or  civilians."60  If 
they  are  the  latter,  an  imbalance  between  such  groups  and  governmental  armed 
forces  could  be  avoided  by  considering  them  to  take  a  direct  part  in  hostilities  con- 
tinuously.61 Customary  law  is  therefore  as  ambiguous  as  the  treaty  provisions  on 
the  crucial  question  whether  fighters  in  non-international  armed  conflicts  may  be 
attacked  in  the  same  way  as  combatants  in  international  armed  conflicts. 

d)  Arguments  for  and  against  an  Analogous  Application  of  the  Rule  Applicable  in 
International  Armed  Conflicts 

The  general  tendency  is  to  bring  the  law  of  non-international  armed  conflicts 
closer  to  that  of  international  armed  conflicts,  which  has  also  the  positive  side  ef- 
fect of  rendering  largely  moot  controversies  on  whether  a  given  conflict,  such  as  the 
conflict  against  Al  Qaeda  in  Afghanistan,  is  international  or  non-international  and 
on  what  law  to  apply  in  conflicts  of  a  mixed  nature.  In  the  last  twenty  years,  the  juris- 
prudence of  international  criminal  tribunals,  the  influence  of  human  rights  law  and 
even  some  treaty  rules  adopted  by  States  have  brought  the  law  of  non-international 
armed  conflicts  closer  to  the  law  of  international  armed  conflicts.  In  the  many 
fields  where  the  treaty  rules  still  differ,  this  convergence  has  been  rationalized  by 
claiming  that  under  customary  international  law,  the  differences  between  the  two 
categories  of  conflicts  have  gradually  disappeared.  This  development  has  reached 
its  provisional  acme  with  the  publication  of  the  ICRC  Customary  Law  Study, 
which  claims,  after  ten  years  of  research  on  "State  practice"  (in  the  form  of  official 
declarations  rather  than  actual  behavior),  that  136  (and  arguably  even  141)  out  of 
161  rules  of  customary  humanitarian  law — many  of  which  parallel  rules  of  Proto- 
col I,  applicable  as  a  treaty  to  international  armed  conflicts — apply  equally  to  non- 
international  armed  conflicts.62  Even  those  who  remain  skeptical  whether  State 
practice  has  truly  eliminated  the  difference  to  the  extent  claimed  suggest  that 
questions  not  answered  by  the  law  of  non-international  armed  conflicts  must  be 
dealt  with  by  analogy  to  the  law  of  international  armed  conflicts,  except  if  the 
very  nature  of  non-international  armed  conflicts  does  not  allow  for  such  an  anal- 
ogy (e.g.,  concerning  combatant  immunity  from  prosecution  and  the  concept  of 

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occupied  territories).63  There  is,  in  addition,  no  real  difference  between  the  non- 
international  armed  conflict  between  the  United  States  and  the  Taliban  today  and 
the  international  armed  conflict  between  those  same  two  parties  in  2001.  To  require 
soldiers  in  the  former  conflicts  to  capture  enemies  whenever  this  is  feasible  (but  not 
in  the  latter)  is  unrealistic  on  the  battlefield.  In  addition,  the  decision  when  an 
enemy  may  be  shot  at  must  be  taken  by  every  soldier  on  the  ground  in  a  split  second 
and  cannot  be  left  to  commanders  and  courts  (as  can  the  decision  to  intern  a  per- 
son, discussed  later).  Clear  instructions  must  exist.  Whenever  possible,  the  train- 
ing of  soldiers  must  be  the  same  in  view  of  international  and  non-international 
armed  conflicts  in  order  to  create  automatisms  that  work  under  the  stress  of  the  battle. 

On  the  other  hand,  strong  arguments  call  into  question  the  appropriateness  of  ap- 
plying the  same  rules  as  in  international  armed  conflicts.  Many  non-international 
armed  conflicts  are  fought  against  or  between  groups  that  are  not  well  structured. 
It  is  much  more  difficult  to  determine  who  belongs  to  an  armed  group  than  who 
belongs  to  governmental  armed  forces.  Persons  join  and  quit  armed  groups  in  an 
informal  way,  while  members  in  governmental  armed  forces  are  incorporated  and 
formally  dismissed.  As  armed  groups  are  inevitably  illegal,  they  will  do  their  best 
not  to  appear  as  such.  Claiming  that  fighters  may  be  shot  at  on  sight  may  therefore 
put  many  civilians  in  danger,64  whether  they  are  sympathizers  of  the  group,  are 
members  of  the  "political  wing,"  belong  to  the  same  ethnic  group  or  simply  hap- 
pen to  be  in  the  wrong  place  at  the  wrong  time.  In  addition,  while  in  international 
armed  conflicts  a  clear  distinction  exists  between  law  enforcement  by  the  police 
against  civilians  and  conduct  of  hostilities  by  combatants  against  combatants, 
there  is  no  equivalent  clear  distinction  in  non-international  armed  conflicts. 

In  conclusion,  neither  the  rules  nor  the  context  of  IHL  of  non-international 
armed  conflicts  provides  a  clear  answer  to  the  question  when  an  enemy  fighter  may 
be  attacked. 

2.  On  Detention 

a)  The  Traditional  Answer  of  Humanitarian  Law  of  International  Armed  Conflict 
In  peacetime  as  during  armed  conflict,  persons  may  be  detained  in  view  of  a  trial  for  a 
crime  or  based  upon  conviction  of  a  crime.  What  is  more  specific  to  armed  conflicts  is 
that  enemies  may  also  be  interned  without  criminal  charge  as  a  preventative  security 
measure.  In  international  armed  conflicts  this  is  the  essence  of  prisoner-of-war 
(POW)  status.  Prisoners  of  war  may  be  interned  without  any  further  procedure 
until  the  end  of  active  hostilities.65  IHL  equally  allows  for  internment  of  a  civilian 
"if  the  security  of  the  Detaining  Power  makes  it  absolutely  necessary"66  or  "for  im- 
perative reasons  of  security";67  however,  it  requires  an  assessment  to  determine  if  a 

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civilian  poses  a  threat  to  security.  Thus,  Convention  IV  mandates  procedures  to  be 
followed  for  reviewing  the  internment  of  civilians,  whether  they  are  aliens  in  the 
territory  of  a  party  to  the  conflict  or  interned  in  occupied  territory,  designating  the 
type  of  review  body — either  an  administrative  board  or  court — and  providing  for 
appeal  and  periodic  review.68  Finally,  it  should  be  noted  that  unlawful  confinement 
is  a  grave  breach  of  Convention  IV.69 

b)  The  Uncertain  Answer  of  Conventional  Humanitarian  Law  of  Non-international 
Armed  Conflicts 

Conventional  IHL  applicable  to  non-international  armed  conflict  prescribes  how 
persons  deprived  of  liberty  for  reasons  related  to  the  armed  conflict  must  be  treated 
and  it  prescribes  judicial  guarantees  for  those  who  are  prosecuted  for  offenses  re- 
lating to  the  conflict  (such  as  individual  non-State  actor  participation  in  the  con- 
flict, which  always  constitutes  a  crime  under  the  domestic  law  of  the  State  affected 
by  the  conflict),  but  it  does  not  clarify  under  which  circumstances  and  by  which 
procedures  a  person  may  be  interned  for  security  reasons.  Yet  the  drafters  of  Proto- 
col II  recognized  the  possibility  of  internment  taking  place  in  non-international 
armed  conflicts,  as  demonstrated  by  the  specific  reference  to  internment  in  Articles 
5  and  6.70 

c)  Customary  Humanitarian  Law 

According  to  the  ICRC  Study,  based  upon  State  practice,  which  obviously  cannot  be 
divided  into  practice  under  IHL,  and  practice  under  IHRL,  customary  IHL  prohibits 
the  arbitrary  deprivation  of  liberty  in  both  international  and  non-international 
armed  conflicts.71  This  rule  is  interpreted  through  significant  reference  to  IHRL. 
Applying  the  two  prongs  of  the  principle  of  legality,  the  Study  states  that  the  basis 
for  internment  must  be  previously  established  by  law  and  stipulates  two  proce- 
dural requirements:  (1)  an  "obligation  to  inform  a  person  who  is  arrested  of  the 
reasons  for  arrest"  and  (2)  an  "obligation  to  provide  a  person  deprived  of  liberty 
with  an  opportunity  to  challenge  the  lawfulness  of  detention,"  described  as  the  "so- 
called  writ  of  habeas  corpus."72  When  trying,  as  I  am  attempting  to  do  in  this  contri- 
bution, to  determine  whether  IHL  or  IHRL  regulates  a  certain  issue,  a  "customary 
IHL  rule"  based  on  IHRL  obviously  does  not  provide  a  useful  starting  point  for 
determining  the  lex  specialis. 

d)  Apply  IHL  of  International  Armed  Conflicts  by  Analogy? 

IHL  of  non-international  armed  conflicts  indicates  that  internment  occurs  in  non- 
international  armed  conflict,73  but  it  contains  no  indication  of  how  it  is  to  be  regu- 
lated. Such  regulation  is  necessary  so  that  internment  can  practically  take  place. 

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One  could  therefore  apply  IHL  of  international  armed  conflict  to  non-international 
armed  conflicts  by  way  of  analogy.74  For  members  of  an  armed  group  with  a  fight- 
ing function  captured  by  international  forces  in  Afghanistan,  the  closest  possible 
analogy  with  the  regulation  of  international  armed  conflicts  appears  to  be  with 
POWs,  who  may  be  detained  without  any  legal  procedure  until  the  end  of  active 
hostilities.75  The  ICRC  Customary  Law  Study  indicates  the  appropriateness  of  ap- 
plying by  analogy  the  standards  of  Convention  III  to  those  designated  as  "combat- 
ants" in  non-international  armed  conflict.76  Most  arguments  in  favor  of  and 
against  such  an  analogy  are  similar  to  those  mentioned  above  in  relation  with  the 
admissibility  to  attack  fighters.  Some  arguments  are,  however,  specific  to  the  de- 
tention issue.  In  favor  of  POW  treatment,  it  must  be  mentioned  that  Article  3  of 
Convention  III  encourages  parties  to  non-international  armed  conflicts  "to  bring 
into  force  by  special  agreements,  all  or  part  of  the  other  provisions  of  the  present 
Convention."  If  the  parties  so  agree,  they  could  therefore  apply  the  rules  of  Con- 
vention III  to  fighters,  which  do  not  require  any  individual  procedure  to  decide  upon 
the  internment.  As  special  agreements  to  the  detriment  of  war  victims  are  void  un- 
der IHL,77  application  of  POW  status  is  therefore  not  considered  as  detrimental  to 
fighters.  Even  without  an  agreement,  a  government  could  obtain  the  same  result, 
i.e.,  POW  status  of  fighters,  by  resuscitating  the  concept  of  recognition  of  the  bel- 
ligerency of  an  armed  group,  which  concept  has  fallen  into  disuse.78 

Arguments  against  this  analogy  are,  first,  that  upon  arrest,  as  at  the  moment  of 
an  attack,  it  is  more  difficult  to  identify  fighters  than  soldiers  of  armed  forces  of 
another  State.  After  an  attack,  an  erroneous  decision  cannot  be  corrected,  because 
either  the  member  of  international  forces  who  erroneously  did  not  attack  is  dead  or  the 
person  who  was  erroneously  attacked  is  dead.  After  an  arrest,  however,  the  correct 
classification  can  be  made  by  a  tribunal,  which  will  only  have  its  say  if  the  arrested 
person  is  not  classified  as  a  POW.79  Second,  while  in  international  armed  conflicts 
POWs  must  be  released  and  repatriated  at  the  end  of  active  hostilities,  that  moment 
in  time  is  more  difficult  to  determine  in  a  non-international  armed  conflict80  and 
repatriation  is  logically  impossible  in  non-international  armed  conflicts.  Even 
when  the  end  of  active  hostilities  is  determined,  no  obligation  for  a  government  to 
release  rebels  at  that  moment  exists  in  IHL.81 

It  has  been  suggested  elsewhere  that  even  for  enemy  fighters,  the  analogy  should 
be  made  with  the  regime  established  for  civilians  to  be  interned  for  imperative  se- 
curity reasons  rather  than  with  the  regime  of  POWs.82  Indeed,  the  rules  applicable 
to  international  armed  conflict  generally  apply  only  to  protected-person  catego- 
ries, such  as  POWs  or  civilians,  while  no  such  categories  exist  in  non-international 
armed  conflict  and  what  counts  is  each  individual's  conduct.  The  precise  nature  of 


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When  May  International  Forces  Attack  or  Detain  Someone  in  Afghanistan? 

that  conduct  can  only  be  established  through  a  procedure.  We  had  to  admit  that 
"the  practicality  of  this  approach,  however,  does  not  make  it  legally  binding."83 

V.  The  Substantive  Rules  of  International  Human  Rights  Law 

1.  On  Attacks 

Human  rights  treaties  prohibit  arbitrary  deprivation  of  life.  Most  of  them  do  not 
specify  when  a  killing  is  arbitrary.  Only  the  ECHR  specifies  that  not  to  be  arbitrary, 
the  killing  must  be  "absolutely  necessary: 

"a.  in  defence  of  any  person  from  unlawful  violence; 

"b.  in  order  to  effect  a  lawful  arrest  or  to  prevent  the  escape  of  a  person 
lawfully  detained; 


84 


"c.  in  action  lawfully  taken  for  the  purpose  of  quelling  a  riot  or  insurrection." 

In  its  case  law,  outside  of  armed  conflicts,  the  ECtHR  has  admitted  the  lawfulness 
of  killing  a  person  whom  authorities  genuinely  thought  was  about  to  detonate  a 
bomb,  but  found  the  insufficient  planning  of  the  operation  to  violate  the  right  to 
life.85  By  and  large,  other  human  rights  bodies  take  the  same  approach.86  The  UN  Ba- 
sic Principles  on  the  Use  of  Force  and  Firearms  by  Law  Enforcement  Officials  pro- 
vide an  authoritative  interpretation  of  the  principles  authorities  must  respect  when 
using  force  in  order  not  to  infringe  the  right  to  life.  Those  principles  limit  the  use  of 
firearms  to  cases  of  self-defense  or  defense  of  others  against  the  imminent  threat  of 
death  or  serious  injury,  of  prevention  of  the  perpetration  of  a  particularly  serious 
crime  involving  grave  threat  to  life,  of  arrest  of  a  person  presenting  such  a  danger  and 
resisting  the  law  enforcement  official's  authority,  or  of  prevention  of  his  or  her  es- 
cape, and  only  when  less  extreme  means  are  insufficient  to  achieve  these  objectives. 

The  intentional  lethal  use  of  firearms  is  only  admissible  "when  strictly  unavoid- 
able in  order  to  protect  life."  In  addition,  law  enforcement  officials 

shall . . .  give  a  clear  warning  of  their  intent  to  use  firearms,  with  sufficient  time  for  the 
warning  to  be  observed,  unless  to  do  so  would  unduly  place  the  law  enforcement 
officials  at  risk  or  would  create  a  risk  of  death  or  serious  harm  to  other  persons,  or 
would  be  clearly  inappropriate  or  pointless  in  the  circumstances  of  the  incident.87 

It  must  however  be  stressed  that  the  Basic  Principles  are  addressed  to  officers 
"who  exercise  police  powers,  especially  the  powers  of  arrest  or  detention."  Military 
authorities  are  included,  but  only  if  they  exercise  police  powers,88  which  could  be 

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interpreted  as  meaning,  e  contrario,  that  the  rules  do  not  bind  military  authorities 
engaged  in  the  conduct  of  hostilities. 

Theoretically,  IHRL  is  the  same  in  international,  in  non-international  and  out- 
side of  armed  conflicts.  The  right  to  life  is  in  addition  not  subject  to  derogations, 
except,  under  the  ECHR,  in  case  of  "lawful  acts  of  war."89  The  classic  case  in  which 
a  human  rights  body  has  assessed  the  right  to  life  in  the  context  of  an  armed  conflict 
is  the  Tablada  case.  In  that  case,  a  group  of  fighters  attacked  an  army  base  in  Argen- 
tina. The  Inter- American  Commission  on  Human  Rights  held  that  "civilians  .  .  . 
who  attacked  the  Tablada  base . . .  whether  singly  or  as  a  member  of  a  group  . . .  are 
subject  to  direct  individualized  attack  to  the  same  extent  as  combatants"  and  lose  the 
benefit  of  the  proportionality  principle  and  of  precautionary  measures.90  It  then 
exclusively  applied  IHL  (of  international  armed  conflicts)  to  those  attackers.  Only 
civilian  bystanders  and  attackers  who  surrendered  were  considered  to  benefit  from 
the  right  to  life.  The  Commission  did  not  raise  the  issue  whether  the  fighters  should 
have  been  arrested  rather  than  killed  whenever  possible. 

In  the  Guerrero  case,  the  Human  Rights  Committee  found  Colombia  to  have  ar- 
bitrarily deprived  persons  who  were  suspected — but  even  by  the  subsequent  en- 
quiry not  proven — to  be  kidnappers  and  members  of  a  "guerrilla  organization"  of 
their  right  to  life.  The  police  waited  for  the  suspected  kidnappers  in  the  house 
where  they  had  believed  the  victim  of  a  kidnapping  to  be  held,  but  which  they 
found  empty.  When  the  suspected  kidnappers  arrived,  they  were  shot  without 
warning,  without  being  given  an  opportunity  to  surrender  and  despite  the  fact  that 
none  of  the  kidnappers  had  fired  a  shot,  but  simply  tried  to  flee.91 

The  jurisprudence  of  the  ECtHR  in  cases  involving  the  right  to  life  in  the  non- 
international  armed  conflict  in  Chechnya  includes  statements  which  appear  to  re- 
quire that  in  the  planning  and  execution  of  even  a  lawful  action  against  fighters, 
any  risk  to  life  and  the  use  of  lethal  force  must  be  minimized.92  These  statements 
were  not  limited  to  the  protection  of  the  lives  of  civilians,  but  the  actual  victims  in 
the  case  were  civilians.  In  all  other  cases  in  which  human  rights  bodies  and  the  ICJ 
applied  the  right  to  life  in  armed  conflicts  not  of  an  international  character,  the 
persons  killed  were  either  hors  de  combat  or  not  alleged  to  have  been  fighters.93 
However,  fighters  are  very  often  killed,  e.g.,  bombed,  while  they  are  not  hors  de 
combat.  Nevertheless,  no  such  case  has  been  brought  before  an  international  hu- 
man rights  monitoring  body.  Some  observers  have  deduced  from  the  absence  of 
any  such  case  law  that  such  killings  do  not  violate  the  right  to  life,  a  case  being 
brought  before  the  Inter- American  system  by  a  surviving  relative  of  a  FARC  mem- 
ber being  "unthinkable."94 


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When  May  International  Forces  Attack  or  Detain  Someone  in  Afghanistan? 

The  limited  body  of  case  law  is  thus  not  really  conclusive  on  the  question  as  to 
what  IHRL  requires  from  government  authorities  using  force  against  fighters,  but 
there  is  no  clear  indication  that  the  principles  applicable  in  peacetime  do  not  apply. 

2.  On  Detention 

Human  rights  provisions  regulating  deprivation  of  liberty  can  be  found  in  a  vari- 
ety of  different  treaties  that  stipulate  that  a  person  may  only  be  deprived  of  liberty 
"on  such  grounds  and  in  accordance  with  such  procedure  as  are  established  by 
law."95  All  treaties  prohibit  arbitrary  arrest  or  detention,96  but  only  Article  5  of  the 
ECHR  specifically  and  exhaustively  enumerates  the  admissible  reasons  for  depriving 
a  person  of  his/her  liberty.  Besides  conviction,  education  of  minors,  mental  illness, 
drug  addiction,  vagrancy  and  immigration  control,  these  include  (in  Article 
5(l)(c))  not  only  detention  on  remand,  but  also,  as  an  alternative,  instances 
"when  [the  detention]  is  reasonably  considered  necessary  to  prevent  his  commit- 
ting an  offence  . . . ."  Under  the  jurisprudence  of  the  ECtHR,  the  latter  alternative 
could  be  seen  as  implicitly  allowing  for  internment,  i.e.,  administrative  detention, 
to  hinder  an  individual  from  committing  a  concrete  and  specific  offence.97  In  that 
situation,  however,  the  person  must  also  be  brought  (under  Article  5(3)) 
"promptly  before  a  judge  or  other  officer  authorised  by  law  to  exercise  judicial 
power  and  shall  be  entitled  to  trial  within  a  reasonable  time  or  to  release  pending 
trial"  (emphasis  added).  Therefore,  a  majority  of  writers  conclude  that  article 
5(l)(c)  covers  only  detention  in  the  framework  of  criminal  proceedings  and  there- 
fore does  not  allow  internment  (except  in  a  state  of  emergency).98  The  jurispru- 
dence of  the  ECtHR  is  however  not  clear  on  this  issue  and  certain  obiter  dicta  seem 
to  indicate  the  contrary.99 

The  ICCPR  does  not  mention  specific  reasons  justifying  internment,  but  re- 
quires in  Article  9(1)  that,  even  when  all  other  conditions  are  fulfilled,  the  intern- 
ment not  be  arbitrary.  The  Human  Rights  Committee  underlines  that  "[t]he 
drafting  history . . .  confirms  that  'arbitrariness'  is  not  [simply]  to  be  equated  with 
'against  the  law',  but  must  be  interpreted  more  broadly  to  include  elements  of  in- 
appropriateness,  injustice,  lack  of  predictability  and  due  process  of  law."100  The  ar- 
rest and  detention  must  be  reasonable  and  necessary.101 

Internment  of  enemy  fighters  would  therefore  certainly  be  admissible  even 
without  a  trial  under  the  ICCPR,  while  the  jury  is  still  out  for  the  ECHR.  Under 
both  instruments,  however,  two  procedures  must  be  complied  with  for  a  person  to 
be  lawfully  deprived  of  his/her  liberty.  First,  an  arrested  person  must  be  promptly 
informed  of  the  reasons  for  arrest.102  Second,  any  person  deprived  of  liberty  "shall 
be  entitled  to  take  proceedings  before  a  court,  in  order  that  that  court  may  decide 


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without  delay  on  the  lawfulness  of  his  detention  and  order  his  release  if  the  deten- 
tion is  not  lawful."103 

As  such,  the  right  to  personal  freedom  is  subject  to  possible  derogations  in  case 
of  a  situation  threatening  the  life  of  the  nation,  if  such  derogation  is  necessary  to 
face  the  situation,  is  proportionate  to  the  threat  and  is  not  incompatible  with  other 
international  obligations  of  the  derogating  State  (such  as,  in  case  of  armed  conflict, 
obligations  stemming  from  IHL).  Furthermore,  the  derogation  must  be  officially 
declared  and  communicated  to  the  other  State  parties  to  the  treaty  from  which  a 
State  wishes  to  derogate.  In  addition,  under  the  ICCPR,  the  derogation  may  not 
lead  to  or  consist  of  discrimination  on  inadmissible  grounds.  Under  the  American 
Convention  on  Human  Rights,  judicial  guarantees  essential  for  the  protection  of 
non-derogable  rights  may  not  be  subject  to  derogations.  The  Inter-American 
Court  of  Human  Rights  has  therefore  found  that  the  access  to  habeas  corpus  and 
amparo  proceedings  are  non-derogable  rights.104  Similarly,  the  Human  Rights 
Committee  considers  that  the  right  to  have  any  arrest  be  controlled  by  a  judicial 
body  may  never  be  derogated  from  because  it  constitutes  a  necessary  mechanism  of 
enforcement  for  such  non-derogable  rights  as  the  prohibition  of  inhumane  and 
degrading  treatment  and  the  right  to  life.105  The  ECtHR  accepted  in  the  past  that 
certain  violations  of  the  right  to  a  judicial  remedy,  provided  for  in  Article  5(4) 
ECHR,  were  covered  by  the  right  to  derogation  under  Article  15,  ECHR.106  It  is 
however  submitted  that  the  Court  would  not  necessarily  decide  so  today,  as  inter- 
national practice  shown  above  has  since  developed  toward  recognizing  the  non- 
derogable  nature  of  habeas  corpus.  As  a  possible  first  step  in  this  direction,  the 
Court  held  that  a  period  of  fourteen  days  before  being  brought  before  a  judicial  au- 
thority, together  with  lack  of  access  to  a  lawyer  and  inability  to  communicate  with 
family  and  friends,  was  contrary  to  the  Convention  despite  a  derogation  by  the 
State  concerned.107  As  for  customary  IHRL,  it  is  widely  claimed  that  the  right  to  ha- 
beas corpus  is  non-derogable.108 

VI.  What  Prevails  If  Both  IHL  and  IHRL  Apply? 

If  both  IHL  and  IHRL  apply  and  provide  differing  answers  in  a  given  situation,  the 
lex  specialis  principle  determines  which  of  the  two  prevails.109  It  must  however  be 
stressed  that  if  (for  whatever  reason)  one  of  the  two  branches  does  not  apply  to  cer- 
tain conduct,  no  lex  specialis  issue  arises.  Thus,  if  the  United  States  is  correct  in  con- 
sidering that  IHRL  does  not  apply  extraterritorially  or  if  IHRL  does  not  create 
obligations  for  armed  groups,  as  the  prevailing  opinion  goes,110  their  conduct  is 
governed  exclusively  by  IHL. 


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1.  The  Determination  of  the  Lex  Specialis 

I  have  tried  elsewhere  to  explore  what  the  principle  "lex  specialis  derogat  legi 
general?  means  in  general  and  in  particular  concerning  IHL  and  IHRL.111  The 
principle  does  not  indicate  an  inherent  quality  in  one  branch  of  law  or  of  one  of  its 
rules.  Rather,  it  determines  which  rule  prevails  over  another  in  a  particular  situa- 
tion.112 Each  case  must  be  analyzed  individually.113 

Several  factors  must  be  weighed  to  determine  which  rule,  in  relation  to  a  certain 
problem,  is  special.  Specialty  in  the  sense  of  logic  implies  that  the  norm  that  applies 
to  certain  facts  must  give  way  to  the  norm  that  applies  to  those  same  facts  as  well  as 
to  an  additional  fact  present  in  the  given  situation.  Between  two  applicable  rules, 
the  one  which  has  the  larger  "common  contact  surface  area"114  with  the  situation 
applies.  The  norm  with  the  scope  of  application  that  enters  completely  into  that  of 
the  other  norm  must  prevail,  otherwise  it  would  never  apply.115  It  is  the  norm  with 
the  more  precise  or  narrower  material  and/or  personal  scope  of  application  that 
prevails.116  Precision  requires  that  the  norm  addressing  explicitly  a  problem  pre- 
vails over  the  one  that  treats  it  implicitly,  the  one  providing  the  advantage  of  detail 
over  the  other's  generality,117  and  the  more  restrictive  norm  over  the  one  covering 
the  entire  problem  but  in  a  less  exacting  manner.118 

A  less  formal  factor — and  equally  less  objective — that  permits  determination  of 
which  of  two  rules  apply  is  the  conformity  of  the  solution  to  the  systemic  objectives 
of  the  law.119  Characterizing  this  solution  as  "  lex  specialis"  perhaps  constitutes  mis- 
use of  language.  The  systemic  order  of  international  law  is  a  normative  postulate 
founded  upon  value  judgments.120  In  particular  when  formal  standards  do  not  in- 
dicate a  clear  result,  this  teleological  criterion  must  weigh  in,  even  though  it  allows 
for  personal  preferences.121 

The  principle  traditionally  deals  with  antinomies  between  conventional  rules. 
Whether  it  also  applies  to  the  relationship  between  two  customary  rules  is  less 
clear.  Theoretically,  this  is  not  the  case,  if  one  adopts  a  traditional  understanding  of 
customary  law.  The  customary  rule  applicable  to  a  certain  problem  derives  from 
the  practice  and  opinio  juris  of  States  in  relation  to  that  problem.  In  relation  to  the 
same  problem,  there  cannot  be  a  customary  "IHRL"  and  another  customary  "IHL" 
rule.  One  always  focuses  on  the  practice  and  the  opinio  juris  manifested  in  relation 
to  problems  as  similar  as  possible  to  the  one  to  be  resolved.  This  appears  to  be  the 
approach  of  the  ICRC,  which  refers,  in  its  Customary  Law  Study,  to  a  vast  array  of 
practice  in  human  rights,  including  outside  of  armed  conflicts.122  In  practice,  how- 
ever, when  one  looks  for  a  customary  rule,  one  often  refers  to  a  text,  whether  a 
treaty  or  another  instrument  codifying  customary  law  or  one  that  instigated  the  de- 
velopment of  a  customary  rule,123  or  even  a  doctrinal  text.  Then,  one  specific  prob- 
lem could  be  covered  by  two  contradictory  texts,  both  deduced  from  State  practice. 

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The  choice  between  these  two  texts  is,  in  my  opinion,  governed  by  the  same  princi- 
ples as  the  choice  between  two  treaty  rules.  If  the  State  practice  clarifying  which  of 
the  two  rules  prevails  in  the  given  situation  is  not  sufficiently  dense,  one  must  dis- 
cover by  the  usual  methods  which  of  the  two  rules,  derived  from  the  practice  ana- 
lyzed from  different  perspectives,  constitutes  the  lex  specialis. 

2.  On  Attacks 

First,  it  must  be  emphasized  that  there  is  a  good  deal  of  common  ground  between 
IHL  and  IHRL.  In  a  "battlefield-like"  situation,  arrest  is  virtually  always  impossible 
without  putting  the  government  forces  into  disproportionate  danger.  A  fighter 
presents  a  great  threat  to  life  even  if  that  threat  consists  of  attacks  against  armed 
forces.  The  immediacy  of  that  threat  might  be  based  not  only  on  what  the  targeted 
fighter  is  expected  to  do,  but  also  on  his  or  her  previous  behavior.124  Therefore, 
even  under  IHRL,  in  such  situations,  lethal  force  could  be  used.  On  the  other  hand, 
the  life  of  a  fighter  who  is  hors  de  combat  is  equally  protected  by  both  branches. 

It  is  where  the  solutions  of  the  two  branches  actually  contradict  each  other  that 
the  applicable  rule  must  be  determined  under  the  lex  specialis  principle.  The  quint- 
essential example  of  such  a  contradiction  is  the  Taliban  or  Al  Qaeda  leader  attend- 
ing a  secret  meeting  in  Kabul.  Many  interpret  IHL  as  permitting  international 
forces  to  shoot  to  kill  since  he  is  a  fighter,  but  this  is  controversial.  IHRL  would 
clearly  say  he  must  be  arrested  and  a  graduated  use  of  force  must  be  employed,  but 
this  conclusion  is  based  upon  precedents  which  arose  in  peacetime  and  IHRL  is  al- 
ways more  flexible  according  to  the  situation. 

In  my  view,  some  situations  contain  more  specificities  of  the  situation  for  which 
the  IHL  rule  was  made  and  some  situations  more  facts  for  which  human  rights 
were  typically  made.  There  is  a  sliding  scale125  between  the  lone  Taliban  leader  in 
Kabul  and  the  Taliban  fighter  engaged  in  a  nearly  conventional  battle  with  interna- 
tional forces  in  the  mountains  around  Khost.  It  is  impossible  to  provide  a  "one  size 
fits  all"  answer;  as  shown  above,  the  lex  specialis  principle  does  not  determine  pri- 
orities between  two  rules  in  the  abstract,  but  offers  a  solution  to  a  concrete  case  in 
which  competing  rules  lead  to  different  results.  The  famous  dictum  by  the  ICJ  that 
"  [t]he  test  of  what  is  an  arbitrary  deprivation  of  life . . .  [must]  be  determined  by  the 
applicable  lex  specialis,  namely,  the  law  applicable  in  armed  conflict"126  should  not 
be  misunderstood.  It  has  to  be  read  in  the  context  of  the  opinion,127  in  which  the 
ICJ  had  to  determine  the  legality  in  abstracto  of  the  use  of  a  certain  weapon. 

Such  a  flexible  solution,  which  makes  the  actual  required  behavior  depend  upon 
the  situation  at  hand,  is  dangerous,  in  particular  regarding  attacks,  where  it  literally 
deals  with  a  question  of  life  and  death  and  where  it  has  to  be  applied  by  every  sol- 
dier and  leads  to  irreversible  results.  It  is  therefore  indispensable  to  determine 

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When  May  International  Forces  Attack  or  Detain  Someone  in  Afghanistan? 

factors  which  make  either  the  IHL  of  international  armed  conflicts  rule  or  the 
IHRL  rule  prevail. 

The  existence  and  extent  of  control  by  governmental  and  international  forces 
over  the  place128  where  the  attack  occurs  point  toward  IHRL  as  lex  specialis.129  Even 
if  IHRL  obligations  under  the  right  to  life  existed  for  a  given  State  beyond  territory 
that  is  under  the  control  of  that  State,  control  over  the  place  where  the  attack  occurs 
is  a  factor  making  IHRL  prevail  over  IHL.  The  latter  was  made  for  hostilities  against 
forces  on  or  beyond  the  front  line,  i.e.,  in  a  place  that  is  not  under  the  control  of 
those  who  attack  them,  while  law  enforcement  concerns  persons  who  are  under  the 
jurisdiction  of  those  who  act.  In  traditional  conflict  situations  this  corresponds  to 
the  question  of  how  remote  the  situation  is  from  the  battlefield,130  although  fewer 
and  fewer  contemporary  conflicts  are  characterized  by  front  lines  and  battlefields. 
What  then  constitutes  sufficient  control  to  warrant  IHRL  predominating  as  the  lex 
specialis7.  International  forces  could  not  simply  argue  that  the  presence  of  a  solitary 
rebel  or  even  a  group  of  rebels  indicates  that  in  fact  they  are  not  fully  in  control  of 
the  place  and  therefore  act  under  IHL  as  lex  specialis.  The  question  is  rather  one  of 
degree.  If  the  international  forces  could  effect  an  arrest  (of  a  member  of  the 
Taliban)  without  being  overly  concerned  about  interference  by  other  Taliban  in 
that  operation,  then  they  have  sufficient  control  over  the  place  to  make  human 
rights  prevail  as  lex  specialis. 

This  criterion  of  control  leaves  the  solution  a  little  more  open  in  an  area  that  is 
under  firm  control  of  neither  side  (such  as  many  places  in  Afghanistan).  Even 
where  the  strict  requirements  of  necessity  of  IHRL  are  not  fulfilled  (if  they  are,  both 
branches  lead  to  the  same  result),  the  impossibility  of  arresting  the  fighter,131  the 
danger  inherent  in  an  attempt  to  arrest  the  fighter132  and  the  danger  represented  by 
the  fighter  for  government  and  international  forces  and  civilians  as  well  as  the  im- 
mediacy of  this  danger133  may  lead  to  the  conclusion  that  IHL  is  the  lex  specialis  in 
that  situation.  These  factors  are  interlinked  with  the  elements  of  control  described 
above.  In  addition,  where  neither  party  has  clear  geographical  control,  in  my  view, 
the  higher  the  degree  of  certainty  that  the  target  is  actually  a  fighter,  the  easier  the 
IHL  approach  appears  as  lex  specialis.134  Attacks  are  lawful  against  persons  who  are 
actually  fighters,  while  law  enforcement  is  by  definition  directed  against  suspects. 

The  main  weakness  of  such  a  flexible  approach  is  its  practicability.  If  the  answer 
depends  on  the  specific  situation,  how  can  a  soldier  know  what  to  apply?  This 
problem  can  only  be  solved  by  precise  instructions  and  orders  for  every  operation 
and  every  sortie.  In  addition,  on  the  international  level,  guidelines  might  be  devel- 
oped in  discussions  among  IHL  and  IHRL  experts,  law  enforcement  practitioners 
and  representatives  of  the  military.  Logically,  (former)  fighters  should  also  be 


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involved,  in  particular  if  the  guidelines  equally  cover  conduct  of  such  groups,135  to 
ensure  that  they  can  be  applied  in  practice. 

3.  On  Detention 

When  comparing  the  rules  of  IHL  of  non-international  armed  conflicts  on  proce- 
dural guarantees  for  persons  arrested  with  those  of  IHRL,  the  former  do  not  exist 
while,  except  for  the  admissible  extent  of  derogations,  the  latter  are  clear  and  well 
developed  by  jurisprudence.  The  latter  must  therefore  prevail.  They  are  more  pre- 
cise and  more  restrictive.  The  ICRC  Customary  Law  Study  appears  to  adopt  this 
approach  when  it  interprets  the  alleged  IHL  rule  prohibiting  the  arbitrary  depriva- 
tion of  liberty  through  the  lens  of  IHRL.136  Unlike  a  person  to  be  targeted,  for 
whom  a  flexible  approach  was  advocated  above,  a  detainee  is  clearly  under  control 
of  those  who  detain  him  or  her.  It  may  be  added  that  the  result  is  not  so  different 
from  that  of  an  application  by  analogy  of  the  guarantees  foreseen  by  Convention 
IV  for  civilians  in  international  armed  conflicts,  the  only  difference  being  that  un- 
der IHRL  a  court  must  decide,  while  under  IHL  an  administrative  body  is  suffi- 
cient.137 Under  IHRL  too,  however,  the  court  does  not  necessarily  have  to  be  a  fully 
independent  and  impartial  tribunal  that  could  try  a  person,  but  it  must  have  a  judi- 
cial character  and  it  may  only  take  decisions  after  judicial,  adversarial  proceedings 
providing  the  individual  guarantees  appropriate  to  the  reasons  of  the  internment 
in  question. 

The  only  exception  where  IHL  must  prevail,  as  it  was  specifically  made  for 
armed  conflicts  and  foresees  a  rule,  exists  when  either  an  agreement  between  the 
parties  or  a  unilateral  recognition  of  belligerency  makes  the  full  regime  of  POWs 
applicable.  In  that  case  detained  fighters  have  the  disadvantage  of  a  lack  of  access  to 
habeas  corpus  (although  there  must  inevitably  exist  a  procedure  to  determine 
whether  an  arrested  person  is  or  is  not  an  enemy  fighter  benefiting  from  POW 
status),  but  they  have  the  advantage  of  a  detailed  regime  governing  their  detention, 
of  immunity  against  prosecution  and  of  a  right  to  be  released  at  the  end  of  active 
hostilities.  In  relation  to  Afghanistan,  the  question  arises  whether  the  agreements 
concluded  by  certain  coalition  partners  such  as  Canada  with  the  Afghan  govern- 
ment in  which  both  parties  undertake  to  "treat  detainees  in  accordance  with  the 
standards  set  out  in  the  Third  Geneva  Convention"138  can  be  considered  as  a  uni- 
lateral granting  of  the  protection  of  Convention  III,  which  would  make  IHL  prevail 
over  the  IHRL  procedural  guarantees.  According  to  the  letter  of  those  agreements, 
this  is  the  case,  at  least  for  persons  who  are  actually  detained  by  the  Afghan  authori- 
ties. In  reality,  however,  it  would  be  very  astonishing  if,  through  those  agreements, 
the  Afghan  government  waived  the  right  to  prosecute  those  arrested  for  acts  of  hos- 
tility against  their  forces,  which  is  part  of  POW  status.  Nongovernmental 

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When  May  International  Forces  Attack  or  Detain  Someone  in  Afghanistan? 

organization  reports  rather  indicate  that  even  the  treatment  of  those  persons  is  far 
from  what  Convention  III  would  require.139  In  my  view,  only  full  POW  status  may 
offer  a  lex  specialis  compared  with  the  detailed  procedural  guarantees  of  IHRL. 

The  main  difficulty  with  this  approach  too  is  whether  it  is  realistic  to  expect 
States  and  non-State  actors,  interning  possibly  thousands,  to  bring  all  internees  be- 
fore a  court  without  delay  during  armed  conflict.  If  it  is  not,  such  an  obligation 
risks  making  it  extremely  difficult  to  conduct  war  effectively  and,  thus,  could  lead 
to  less  compliance  with  the  rules  in  the  long  term,  e.g.,  summary  executions  dis- 
guised as  battlefield  killings. 

A  second  concern  derives  from  the  differences  between  State  and  non-State  ac- 
tors, which  have  equal  obligations  under  IHL  but  not  under  IHRL.  The  question  of 
whether  a  non-State  actor  may  establish  a  court  remains  controversial.140  The  re- 
quirements that  there  be  a  legal  basis  and  procedures  established  by  law  for  intern- 
ment raise  the  same  concern.  While  human  rights  themselves  stipulate  at  least  two 
procedural  requirements,  neither  they  nor  IHL  applicable  to  non-international 
armed  conflict  provides  a  specific  legal  basis  for  internment.  While  a  State  can  so 
provide  in  its  domestic  law,  how  is  the  non-State  actor  to  establish  this  basis  in  law? 
Could  then  a  non-State  actor  also  derogate  from  IHRL?  Application  of  IHRL  seems 
to  make  it  impossible  for  one  party  to  the  armed  conflict — the  non-State  actor — to 
intern  legally.  Parties  to  armed  conflicts  intern  persons,  hindering  them  from  con- 
tinuing to  bear  arms,  so  as  to  gain  the  military  advantage.  If  the  non-State  actor 
cannot  legally  intern  persons — recalling  that  it  is  a  serious  violation  of  IHL  to  deny 
quarter141 — the  non-State  actor  is  left  with  little  option  but  to  release  the  captured 
enemy  fighters.  If  rules  applicable  to  armed  conflict  make  efficient  fighting  impos- 
sible, they  will  not  be  respected,  thus  undermining  any  protection  the  law  provides. 
These  may  be  reasons  for  not  applying  the  same  lex  specialis  reasoning  to  armed 
groups  even  if  IHRL  were  considered  to  bind  non-State  armed  groups. 

VII.  Conclusion 

In  an  ideal  world,  armed  forces  could  apply  one  set  of  rules  when  abroad,  they 
would  always  know  who  a  person  they  are  confronted  with  is,  they  would  deal  un- 
der IHL  with  enemy  fighters,  while  the  Afghan  police  would  deal  in  full  respect  of 
IHRL  with  everyone  else.  This  ideal  world  does  not  exist,  and  even  less  so  in  Afghan- 
istan. It  is  the  very  essence  of  stability  operations  that  they  take  place  in  an  environ- 
ment which  offers  the  full  spectrum  of  situations.  It  is  therefore  not  astonishing  but 
in  fact  normal  that  the  full  spectrum  of  laws  apply:  IHL,  made  for  armed  conflicts 
but  leaving  some  questions  open,  in  particular  in  non-international  armed  con- 
flicts; IHRL,  made  for  the  relations  between  a  State  and  its  citizens,  but  also 

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applicable  to  (or  at  least  containing  values  that  must  protect)  foreigners  and  people 
confronted  with  agents  of  a  State  abroad;  and  the  domestic  law  of  the  territorial 
State  and  of  the  home  State.  It  is  also  normal  that  there  is  no  general  answer  on  how 
those  laws  interrelate  and  which  prevails.  Everything  depends  on  where  on  the 
spectrum  a  certain  encounter  with  local  people  is  situated.  Most  often,  in  addition, 
the  soldier  acting  in  the  field,  and  even  the  commander  responsible  for  a  detention, 
does  not  know  where  on  the  spectrum  he  or  she  is  standing.  Therefore,  the  rela- 
tionship between  IHL  and  IHRL  for  international  forces  in  Afghanistan  depends 
on  many  variables,  and  the  identity  and  weight  of  those  variables  are  in  addition 
controversial  among  lawyers.  The  approach  suggested  here  as  to  when  and  whether 
an  Afghan  may  be  attacked  and  detained  like  a  soldier  of  the  German  Wehrmacht 
in  World  War  II  and  when  he  or  she  must  benefit  from  the  guarantees  benefiting  in 
peacetime  even  the  most  suspect  person  lurking  in  a  dodgy  neighborhood  is  based 
upon  the  fundamental  ideas  and  the  typical  situations  for  which  the  two  branches 
were  made.  Moreover,  it  takes  into  account  the  practical  difficulties  of  decision 
making  and  the  risks,  consequences  and  reversibility  of  mistakes  in  that  decision 
making,  for  both  the  target  and  the  member  of  the  international  forces.  If  the  security 
of  the  international  forces  were  the  overriding  consideration,  they  would  not  be 
sent  by  their  governments  to  such  a  dangerous  place  as  Afghanistan.  Victory  does 
not  mainly  depend  upon  their  military  superiority,  but  on  the  impression  they 
leave  with  the  Afghan  population,  compared  with  what  their  enemies  have  to  offer. 
Many  will  consider  the  very  nuanced  line  suggested  in  this  article,  which  in 
addition  on  some  important  issues  is  unable  to  provide  solutions  and  only  lists  ar- 
guments, as  unrealistic.  In  my  view,  full-spectrum  operations  require  soldiers  at  an 
increasingly  lower  level  to  apply,  simultaneously,  complicated  and  controversial 
rules.  However,  they  are  not  and  they  should  not  be  left  alone.  They  need  the  best 
possible  training  and  clear  instructions  for  every  sortie.  In  addition,  international 
lawyers  and  practitioners  should  meet,  not  to  reaffirm  the  theory  or  to  conclude 
that  the  old  rules  are  not  adequate  for  the  new  situation,  but  to  operationalize  the 
interplay  between  the  existing  rules  agreed  upon  by  States,  including  to  explain  the 
few  issues  on  which  there  are  genuine  divergences  of  view,  the  (often  rather  lim- 
ited) practical  impact  of  those  divergences  and  the  possible  solutions. 

Notes 

1 .  See  infra  text  accompanying  note  54. 

2.  For  those  requirements  in  particular,  see  the  decision  of  the  International  Criminal  Tri- 
bunal for  the  former  Yugoslavia  in  Prosecutor  v.  Ramush  Haradinaj,  Idriz  Balaj  and  Lahi 
Brahimaj,  Case  No.  IT-04-84-T,  Trial  Chamber  Judgment,  paras.  37-99  (Apr.  3,  2008). 


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When  May  International  Forces  Attack  or  Detain  Someone  in  Afghanistan? 

3.  Thus  the  ICRC  position  according  to  Adam  Roberts.  See  Adam  Roberts,  The  Laws  of  War 
in  the  War  on  Terror,  32  ISRAEL  YEARBOOK  OF  HUMAN  RIGHTS  193  (2002). 

4.  See  Convention  Relative  to  the  Protection  of  Civilian  Persons  in  Time  of  War  art.  47, 
Aug.  12,  1949,  6  U.S.T.  3516,  75  U.N.T.S.  287,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR 
301  (Adam  Roberts  &  Richard  Guelff  eds.,  3d.  ed.  2000)  [hereinafter  Geneva  Convention  IV]. 

5.  Convention  for  the  Amelioration  of  the  Condition  of  Wounded  and  Sick  in  Armed 
Forces  in  the  Field  art.  2,  Aug.  12, 1949, 6  U.S.T.  31 14,  75  U.N.T.S.  31  [hereinafter  Geneva  Con- 
vention I];  Convention  for  the  Amelioration  of  the  Condition  of  Wounded,  Sick  and  Ship- 
wrecked Members  of  Armed  Forces  at  Sea  art.  2,  Aug.  12,  1949,  6  U.S.T.  3217,  75  U.N.T.S.  85 
[hereinafter  Geneva  Convention  II];  Convention  Relative  to  the  Treatment  of  Prisoners  of  War 
art.  2,  Aug.  12, 1949, 6  U.S.T.  3316, 75  U.N.T.S.  135  [hereinafter  Geneva  Convention  III];  Proto- 
col Additional  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the  Protection  of 
Victims  of  International  Armed  Conflicts,  June  8, 1977, 1 125  U.N.T.S.  3  [hereinafter  Additional 
Protocol  I];  all  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  4,  at  197,  222,  244 
and  422,  respectively;  Geneva  Convention  IV,  supra  note  4. 

6.  See  William  K.  Lietzau,  Combating  Terrorism:  Law  Enforcement  or  War?,  in  TERRORISM 
AND  INTERNATIONAL  LAW,  CHALLENGES  AND  RESPONSES  80  (Michael  Schmitt  &  Gian  Luca 
Beruto  eds.,  2002). 

7.  Loizidou  v.  Turkey,  1996-VI  Eur.  Ct.  H.R.  2216,  2235-36,  para.  56;  Cyprus  v.  Turkey, 
2001 -IV  Eur.  Ct.  H.R.  1,  para.  77.  (These  and  all  other  decisions  of  the  European  Court  of  Human 
Rights  are  available  online  at  http://echr.coe.int/echr/en/hudoc.) 

8.  See  Michael  J.  Dennis,  Application  of  Human  Rights  Treaties  Extraterritorially  in  Times  of 
Armed  Conflict  and  Military  Occupation,  99  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  1 19, 
123-24(2005). 

9.  See  Legal  Consequences  of  the  Construction  of  a  Wall  in  the  Occupied  Palestinian  Terri- 
tory, Advisory  Opinion,  2004  I.C.J.  136,  paras.  102, 1 10  (July  9);  Adam  Roberts,  Prolonged  Mili- 
tary Occupations:  The  Israeli-Occupied  Territories  since  1967,  84  AMERICAN  JOURNAL  OF 
INTERNATIONAL  LAW  44,  71-72  (1990).  The  Coalition  Provisional  Authority  Administrator  in 
Iraq,  Ambassador  L.  Paul  Bremer,  is  reported  to  have  stated  in  a  letter  to  Amnesty  International 
that  "the  only  relevant  standard  applicable  to  the  Coalition's  detention  practices  is  the  Fourth 
Geneva  Convention  of  1949."  See  AMNESTY  INTERNATIONAL,  IRAQ:  MEMORANDUM  ON  CON- 
CERNS RELATED  TO  LEGISLATION  INTRODUCED  BY  THE  COALITION  PROVISIONAL  AUTHORITY 
(2003),  available  at  http://web.amnesty.org/library/Index/ENGMDE14 1762003?open8cof= 
ENG-IRQ. 

10.  Legal  Consequences  of  the  Construction  of  a  Wall,  supra  note  9,  paras.  107-12;  Armed 
Activities  on  the  Territory  of  the  Congo  (Dem.  Rep.  Congo  v.  Uganda),  2005  I.C.J.  116,  paras. 
216-17  (Dec.  19).  (The  decisions  of  the  International  Court  of  Justice  are  available  at  http:// 
www.icj-cij.org/docket/index.php?pl=3&p2=4.) 

1 1 .  U.N.  Human  Rights  Committee,  Concluding  Observations  of  the  Human  Rights  Commit- 
tee: Israel  para.  10,  U.N.  Doc.  CCPR/C/79/Add.93  (Aug.  18,  1998);  U.N.  Human  Rights  Com- 
mittee, General  Comment  31:  The  Nature  of  the  General  Legal  Obligation  Imposed  on  States  Parties 
to  the  Covenant?*™.  10,  U.N.  Doc.  CCPR/C/21/Rev.l/Add.l3  (May  26,  2004). 

12.  See,  e.g.,  UK  MINISTRY  OF  DEFENCE,  THE  MANUAL  OF  THE  LAW  OF  ARMED  CONFLICT 
para.  11.19(2004). 

13.  See  also  references  in  Special  Rapporteur,  Report  of  the  Special  Rapporteur  of  the  Commis- 
sion on  Human  Rights  on  the  Situation  of  Human  Rights  in  Kuwait  under  Iraqi  Occupation  paras. 
50-59,  delivered  to  the  U.N.  Econ.  and  Soc.  Council,  U.N.  Doc.  E/CN.4/ 1992/26  (Jan.  16, 1992) 
(prepared  by  Walter  Kalin). 


456 


Marco  Sassdli 


14.  John  Cerone,  Human  Dignity  in  the  Line  of  Fire:  The  Application  of  International  Human 
Rights  Law  during  Armed  Conflict,  Occupation,  and  Peace  Operations,  39  VANDERBILT  JOURNAL 
of  Transnational  Law  1447, 1491-92  (2006). 

15.  Alejandre  v.  Cuba,  Case  11.589,  Inter-Am.  C.H.R.,  Report  No.  86/99,  OEA/Ser.L/V/ 
11.106  doc.  3  rev.  at  586,  para.  25  (1999). 

16.  Bankovic  et  al.  v.  Belgium  et  al.,  App.  No.  52207/99,  2001-XII  Eur.  Ct.  H.R.  333,  paras. 
70-71. 

17.  Issa  and  Others  v.  Turkey,  App.  No.  31821/96,  41  Eur.  Ct.  H.R.  Rep.  567,  paras.  76-82 
(2004). 

18.  Pad  and  Others  v.  Turkey,  App.  No.  60167/00,  Admissibility,  paras.  54-55  (Eur.  Ct. 
H.R.,  June  28,  2007). 

19.  Nuala  Mole,  Issa  v.  Turkey:  Delineating  the  Extra-territorial  Effect  of  the  European  Con- 
vention on  Human  Rights,  1  EUROPEAN  HUMAN  RIGHTS  LAW  REVIEW  86-87  (2005). 

20.  Issa  v.  Turkey,  supra  note  1 7,  para.  75.  In  this  decision,  the  Court  was  drawing  on  its  prior 
case  law  regarding  Cyprus. 

21.  Cerone,  supra  note  14,  at  1494-1507,  frames  the  discussion  in  terms  of  a  "range"  of  ap- 
plicable rights  and  in  terms  of  the  "level  of  obligation"  binding  States  acting  extraterritorially. 

22.  Hussein  v.  21  States,  App.  No.  23276/04,  42  Eur.  H.R.  Rep.  SE16  at  3  (Mar.  14,  2006) 
(Court  Decision  on  Admissibility). 

23.  Id.  at  4. 

24.  Hess  v.  United  Kingdom,  18  YEARBOOK  OF  THE  EUROPEAN  CONVENTION  ON  HUMAN 
RIGHTS  146,  176  (1975)  (Eur.  Comm'n  on  H.R.). 

25.  Damira  Kamchibekova,  State  Responsibility  for  Extraterritorial  Human  Rights  Violations, 
13  Buffalo  Human  Rights  Law  Review  87, 125  (2007). 

26.  Hess  v.  United  Kingdom,  supra  note  24,  at  176  (emphasis  added). 

27.  A  State  that  is  an  occupying  power  has,  however,  the  positive  obligation  to  protect  the 
right  to  life  of  persons  within  its  jurisdiction  against  third  parties.  The  ICJ  held  that  Uganda,  as  an 
occupying  power  in  Congo,  had  an  obligation  "to  protect  the  inhabitants  of  the  occupied  territory 
against  acts  of  violence,  and  not  to  tolerate  such  violence  by  any  third  party."  See  Armed  Activities 
on  the  Territory  of  the  Congo  (Dem.  Rep.  Congo  v.  Uganda),  2005  I.C.J.  116,  paras.  178-79. 

28.  On  the  irrelevance  of  who  arrested  a  detainee,  see  Michael  Fordham  et  al.,  Joint  Opinion, 
In  the  Matter  of  the  All  Party  Parliamentary  Group  on  Extraordinary  Rendition  and  in  the  Mat- 
ter of  the  Human  Rights  Responsibility  Arising  from  the  Military  Detainee  Handovers  in  Iraq 
paras.  10  and  15(2)  (July  28,  2008),  available  at  http://www.extraordinaryrendition.org/index 
.php?option=com_docman8rtask=cat_view&gid=30&Itemid=27. 

29.  Article  15  of  the  European  Convention  for  the  Protection  of  Human  Rights  and  Funda- 
mental Freedoms,  Nov.  4, 1950, 213  U.N.T.S.  222  [hereinafter  European  Convention],  refers  to 
"time  of  war  or  other  public  emergency  threatening  the  life  of  the  nation";  Article  4  of  the  Inter- 
national Covenant  on  Civil  and  Political  Rights,  Dec.  16,  1966,  999  U.N.T.S.  171  [hereinafter 
ICCPR],  refers  to  "time  of  public  emergency  which  threatens  the  life  of  the  nation  and  the  exis- 
tence of  which  is  officially  proclaimed";  Article  27  of  the  American  Convention  on  Human 
Rights,  Nov.  22, 1969, 1 144  U.N.T.S.  123  [hereinafter  American  Convention],  refers  to  "time  of 
war,  public  danger,  or  other  emergency  that  threatens  the  independence  or  security  of  a  State 
Party." 

30.  R  (on  the  Application  of  Al-Jedda)  (FC)  v.  Secretary  of  State  for  Defence  [2007]  UKHL 
58  (per  Lord  Bingham,  para.  38),  available  at  http://www.publications.parliament.uk/pa/ 
Id200708/ldjudgmt/jd071212/jedda-l.htm)  [hereinafter  Al-Jedda]. 

31.  Id. 


457 


When  May  International  Forces  Attack  or  Detain  Someone  in  Afghanistan? 

32.  Nonetheless,  it  may  well  be  that  the  illegality  of  the  exercise  also  means  it  violates  IHRL, 
as  IHRL,  contrary  to  IHL,  knows  no  distinction  between  ius  ad  bellum  and  ius  in  bello.  See  Wil- 
liam Schabas,  Lex  Specialist  Belt  and  Suspenders?  The  Parallel  Operation  of  Human  Rights  Law 
and  the  Law  of  Armed  Conflict  and  the  Conundrum  of "Jus  Ad  Bellum,  40  ISRAEL  LAW  REVIEW  592, 
593,  607-10  (2007). 

33.  Loizidou  v.  Turkey,  1996-VI  Eur.  Ct.  H.R.  2216,  at  2235-36,  para.  52  (emphasis  added). 

34.  Al-Jedda,  supra  note  30,  paras.  26-39  (per  Lord  Bingham),  125-29  (per  Baroness  Hale), 
130-35  (per  Lord  Carswell)  and  151  (per  Lord  Brown).  Lord  Rodger  agrees  in  principle  in  obiter 
at  paragraph  118.  The  Law  Lords  held  that  Article  5  rights  may  be  "displaced"  or  "qualified"  by 
UN  Security  Council  Resolution  1546,  but  insisted  that  the  infringement  be  limited.  Lord 
Bingham  held  that  they  must  "ensure  that  the  detainee's  rights  under  article  5  are  not  infringed 
to  any  greater  extent  than  is  inherent  in  such  detention."  Id.,  para.  39.  Lord  Carswell  proposed 
specific  "safeguards"  to  be  implemented  during  such  detention  "so  far  as  is  practicable  and  con- 
sistent with  the  needs  of  national  security  and  the  safety  of  other  persons."  Id.,  para.  130. 

35.  See  Application  of  the  Convention  on  the  Prevention  and  Punishment  of  the  Crime  of 
Genocide  (Bosn.  8c  Herz.  v.  Serb.  &  Mont.),  1993  I.C.J.  325,  440-41,  paras.  100-102  (Sept.  13) 
(separate  opinion  of  Judge  Lauterpacht). 

36.  See  Behrami  v.  France  and  Saramati  v.  France,  45  Eur.  Ct.  H.R.  10  (2007).  In  this  case  the 
question  of  attribution  was  not  clearly  distinguished  from  the  above-mentioned  question  of 
whether  a  Security  Council  resolution  overrides  the  substantive  human  rights  obligations  of  a 
State,  but  in  its  global  reasoning  the  ECtHR  suggested  that  such  resolutions  have  precisely  that 
effect.  Id.,  para.  149.  The  two  questions  were  distinguished  in  the  Al-Jedda  case  by  the  UK  House 
of  Lords,  which  rejected  on  the  facts  the  claims  of  the  government  under  the  first  question  but 
answered  the  second  question  affirmatively  (Al-Jedda,  supra  note  30,  paras.  22-24  (attribution), 
para.  39  (human  rights)  (per  Lord  Bingham);  Lord  Rodger  dissenting  on  the  question  of  attribu- 
tion (see  particularly  para.  99)). 

37.  U.N.  Human  Rights  Committee,  Consideration  of  Reports  Submitted  by  States  Parties  Un- 
der Article  40  of  the  Covenant:  Comments  by  the  Government  of  Germany  to  the  Concluding  Obser- 
vations of  the  Human  Rights  Committee,  U.N.  Doc.  CCPR/CO/80/DEU/Add.  1  (Jan.  5, 2005);  UN 
Human  Rights  Comm.,  Concluding  Observations  of  the  Human  Rights  Committee:  Poland  para.  3, 
U.N.  Doc.  CCPR/CO/82/POL  (Dec.  2,  2004).  Other  State  parties  have  answered  questions  re- 
garding the  actions  of  their  national  forces  in  peacekeeping  missions  without  contending  that 
the  ICCPR  does  not  apply  beyond  their  State  borders  or  in  that  context  (Belgium,  U.N.  Human 
Rights  Committee,  Consideration  of  Reports  Submitted  by  States  Parties  under  Article  40  of  the 
Covenant  para.  22,  U.N.  Doc.  CCPR/C/SR.  1707  (Oct.  27, 1998);  Italy,  U.N.  Human  Rights  Com- 
mittee, Consideration  of  Reports  Submitted  by  States  Parties  under  Article  40  of  the  Covenant  para. 
22,  U.N.  Doc.  CCPR/C/SR.  1680  (Sept.  24, 1998);  Canada,  U.N.  Human  Rights  Committee,  Con- 
sideration of  Reports  Submitted  by  States  Parties  under  Article  40  of  the  Covenant  paras.  29,  32, 
U.N.  Doc.  CCPR/C/SR.  1738  (Mar.  7,  1999)). 

38.  See  Report  of  the  International  Law  Commission  on  its  Fifty-eighth  Session,  ch.  VII, 
U.N.  GAOR,  61st  Sess.,  Supp.  No.  10,  U.N.  Doc.  A/61/10  (2006)  (discussing  Articles  28  and  29  of 
the  Draft  Articles  on  the  Responsibility  of  International  Organizations). 

39.  Waite  and  Kennedy  v.  Germany,  1999-1  Eur.  Ct.  H.R.  393;  Bosphorus  Hava  Yollari 
Turizm  ve  Ticaret  Anonim  Sirketi  v.  Ireland,  2005-VI  Eur.  Ct.  H.R.  para.  154. 

40.  Additional  Protocol  I,  supra  note  5,  art.  51(3),  which  reflects  customary  law,  but  the  ex- 
act meaning  of  which  is  controversial  and  presently  subject  to  an  ICRC-led  process  of  research 
and  reflection  on  and  clarification  of  the  notion  of  direct  participation  in  hostilities.  See  infra 
note  46. 


458 


Marco  Sassdli 


41.  Jean  S.  Pictet,  Development  and  Principles  of  International  Humanitarian 
LAW  75-76  (1985). 

42.  See  British  War  Office,  III  Manual  of  Military  Law  (Law  of  War  on  Land)  para.  115 
(1958). 

43.  For  the  divergences  of  view  in  the  ICRC  expert  consultations  on  the  notion  of  direct  par- 
ticipation in  hostilities,  see  Direct  Participation  2005  Report,  infra  note  46,  at  45-46;  Louise 
Doswald-Beck,  The  right  to  life  in  armed  conflict:  does  international  humanitarian  law  provide  all 
the  answers?,  88  INTERNATIONAL  REVIEW  OF  THE  RED  CROSS  881,  902  (2006);  Vincent- Joel 
Proulx,  If  the  Hat  Fits,  Wear  It,  If  the  Turban  Fits,  Run  for  Your  Life:  Reflections  on  the  Indefinite 
Detention  and  Targeted  Killing  of  Suspected  Terrorists,  56  HASTINGS  LAW  JOURNAL  801,  882-83 
(2006). 

44.  Additional  Protocol  I,  supra  note  5,  art.  51(5)(b). 

45.  See  Geneva  Conventions  I— III,  supra  note  5,  art.  3;  Geneva  Convention  IV,  supra  note  4, 
art.  3;  Protocol  Additional  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  Non-International  Armed  Conflicts  art.  4,  June  8, 1977,  1 125  U.N.T.S. 
609,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  4,  at  483  [hereinafter  Addi- 
tional Protocol  II]. 

46.  Recently,  the  ICRC  was  engaged,  in  consultation  with  experts,  in  a  process  of  research, 
reflection  on  and  clarification  of  the  notion  of  "direct  participation  in  hostilities"  under  IHL. 
This  process  has  not  yet  shown  definitive  results  but  it  clearly  demonstrated  profound  diver- 
gences over  the  question  of  when  enemy  fighters  may  be  killed  in  a  non-international  armed 
conflict.  See  Third  Meeting  on  the  Notion  of  Direct  Participation  in  Hostilities  under  Interna- 
tional Humanitarian  Law  (Oct.  23-25,  2005),  http://www.icrc.org/Web/eng/siteengO.nsf/ 
htmlall/participation-hostilities-ihl-3 1 1 205/$File/Direct_participation_in_hostilities_2005_eng.pdf 
[hereinafter  Direct  Participation  2005  Report];  Second  Expert  Meeting:  Direct  Participation  in 
Hostilities  under  International  Humanitarian  Law  (Oct.  25-26,  2004),  http://www.icrc.org/ 
Web/eng/siteeng0.nsf/htmlall/participation-hostilities-ihl-3 1 1 205/$File/Direct_participation_in_ 
hostilities_2004_eng.pdf;  Direct  Participation  in  Hostilities  under  International  Humanitarian 
Law  (Sept.  2003),  http://www.icrc.org/Web/eng/siteengO.nsf/htmlall/participation-hostilities 
-ihl-3 1 1205/$File/Direct%20participation%20in%20hostilities-Sept%202003.pdf.  Based  upon 
those  discussions,  the  ICRC  is  currently  preparing  an  "Interpretative  Guidance  on  the  Notion  of 
Direct  Participation  in  Hostilities." 

47.  University  Centre  for  International  Humanitarian  Law,  Expert  Meeting  on  the  Right  to  Life 
in  Armed  Conflict  and  Situations  of  Occupation  34  (2005),  available  at  http://www.adh-geneve.ch/ 
pdfs/3rapport_droit_vie.pdf  [hereinafter  UCIHL  Report] . 

48.  Direct  Participation  2005  Report,  supra  note  46,  at  64;  David  Kretzmer,  Targeted  Killing 
of  Suspected  Terrorists:  Extra-judicial  Executions  or  Legitimate  Means  of  Defence?,  16  EUROPEAN 
JOURNAL  OF  INTERNATIONAL  LAW  171,  197-98  (2005). 

49.  Under  Common  Article  3,  the  term  "armed  forces"  includes  rebel  armed  groups.  See 
Marco  Sassdli,  Terrorism  and  War,  4  JOURNAL  OF  INTERNATIONAL  CRIMINAL  JUSTICE  959,  977 
(2006). 

50.  Commentary  on  the  Additional  Protocols  of  8  June  1977  to  the  Geneva  Con- 
ventions OF  12  AUGUST  1949  para.  4789  (Yves  Sandoz,  Christophe  Swinarski  &  Bruno  Zim- 
mermann  eds.,  1987). 

51.  Direct  Participation  2005  Report,  supra  note  46,  at  48-49. 

52.  Public  Committee  against  Torture  in  Israel  v.  Government  of  Israel  et  al.,  HCJ  769/02, 
Judgment,  para.  39  (Dec.  13, 2006),  available  at  http://elyonl.court.gov.il/files_eng/02/690/007/ 
a34/02007690.a34.pdf  [hereinafter  Public  Committee  against  Torture]. 


459 


When  May  International  Forces  Attack  or  Detain  Someone  in  Afghanistan? 

53.  Direct  Participation  2005  Report,  supra  note  46,  at  43-44. 

54.  Id.  at  64;  Kretzmer,  supra  note  48,  at  198-99,  goes  in  a  similar  direction. 

55.  Jean-Marie  Henckaerts  &  Louise  Doswald-Beck,  I  Customary  International 
Humanitarian  Law  3  (Rule  l)  (2005). 

56.  Id. 

57.  Id.  at  19  (Rule  6). 

58.  Mat  17  (Rule  5). 

59.  Id.  at  12. 

60.  Id.  at  17. 

61.  Id.  at  21. 

62.  Id. 

63.  Marco  SassOli  &  Antoine  Bouvier,  How  does  law  protect  in  war?  251  (2d  ed. 
2006). 

64.  Alexander  Orakhelashvili,  The  Interaction  between  Human  Rights  and  Humanitarian 
Law:  Fragmentation,  Conflict,  Parallelism,  or  Convergence?,  19  EUROPEAN  JOURNAL  OF  INTERNA- 
TIONAL Law  161,  167  (2008). 

65.  Geneva  Convention  III,  supra  note  5,  art.  21. 

66.  Geneva  Convention  IV,  supra  note  4,  art.  42  (for  an  alien  on  the  territory  of  a  party). 

67.  Id.,  art.  78(1)  (in  occupied  territory). 

68.  Id.,  arts.  43,  78(2). 

69.  Id.,  art.  147.  See  also  Statute  of  the  International  Criminal  Court  art.  8(2)(a)(vii),  July  17, 
1998,  2187  U.N.T.S.  90;  Statute  of  the  International  Criminal  Tribunal  for  the  Prosecution  of 
Persons  Responsible  for  Serious  Violations  of  International  Humanitarian  Law  Committed  in 
the  Territory  of  the  former  Yugoslavia  since  1991  art.  2(g),  S.C.  Res.  827,  U.N.  Doc.  S/RES/827 
(1993). 

70.  Additional  Protocol  II,  supra  note  45,  arts.  5,  6(5). 

71.  Henckaerts  &  Doswald-Beck,  supra  note  55,  at  344-52. 

72.  Id.  at  348-51. 

73.  Additional  Protocol  II,  supra  note  45,  arts.  5,  6. 

74.  See  Jelena  Pejic,  Procedural  Principles  and  Safeguards  for  Internment/Administrative  De- 
tention in  Armed  Conflict  and  Other  Situations  of  Violence,  87  INTERNATIONAL  REVIEW  OF  THE 
RED  CROSS  375,  377  (2005). 

75.  For  a  position  rejecting  such  an  analogy,  see  United  Nations  Commission  on  Human 
Rights,  Working  Group  on  Arbitrary  Detention,  Situation  of  Detainees  at  Guantanamo  Bay  para. 
24,  U.N.  Doc.  E/CN.4/2006/120  (Feb.  2006). 

76.  Henckaerts  &  Doswald-Beck,  supra  note  55,  at  352. 

77.  Geneva  Convention  III,  supra  note  5,  art.  6. 

78.  HENCKAERTS  &  DOSWALD-BECK,  supra  note  55,  at  352;  LINDSAY  MOIR,  THE  LAW  OF  IN- 
TERNAL Armed  Conflict  41  (2002). 

79.  Article  5  of  Geneva  Convention  III  prescribes  status  determination  tribunals  only  for 
persons  a  detaining  power  wants  to  deny  POW  status. 

80.  When  are  active  hostilities  against  the  Taliban  over?  Only  once  the  last  member  of  the 
Taliban  hidden  in  a  mountain  cave  is  arrested? 

81.  Article  6(5)  of  Additional  Protocol  II  simply  encourages  the  widest  possible  amnesty. 

82.  See  Marco  Sassoli  &  Laura  M.  Olson,  The  relationship  between  international  humanitar- 
ian and  human  rights  law  where  it  matters:  admissible  killing  and  internment  of  fighters  in  non- 
international  armed  conflicts,  90  INTERNATIONAL  REVIEW  OF  THE  RED  CROSS  599  (2008). 

83.  Id. 


460 


Marco  Sassdli 


84.  European  Convention,  supra  note  29,  art.  2(2). 

85.  McCann  v.  United  Kingdom,  324  Eur.  Ct.  H.R.  (ser.  A)  paras.  200-205  (1995). 

86.  See,  e.g.,  Las  Palmeras  Case,  2002  Inter-Am.  Ct.  H.R.  (ser.  C)  No.  96  (2002). 

87.  See  Basic  Principles  on  the  Use  of  Force  and  Firearms  by  Law  Enforcement  Officials  fflf  9, 
10,  U.N.  Doc.  A/CONF.144/28/Rev.l  at  112  (1990),  available  at  http://www.unhchr.ch/html/ 
menu3/b/h_comp43.htm. 

88.  Id.,  note.  The  note  clarifies  the  term  "law  enforcement  officials"  by  referring  to  the  com- 
mentary to  Article  1  of  the  Code  of  Conduct  for  Law  Enforcement  Officials. 

89.  European  Convention,  supra  note  29,  art.  5(2).  It  has  been  argued  that  this  only  refers  to 
international  armed  conflicts.  See  Doswald-Beck,  supra  note  43,  at  883.  In  any  case,  no  State  has 
ever  tried  to  derogate  based  on  this  exception. 

90.  Abella  v.  Argentina  (Tablada),  Case  1 1.137,  Report  No.  55/97,  Inter-Am.  C.H.R.,  OEA/ 
Ser.L/V/II.95  doc.  7  rev.,  para.  178  (1997)  (emphasis  supplied). 

91.  Camargo  on  behalf  of  Guerrero  v.  Colombia,  Hum.  Rts.  Comm.,  Comm.  No.  R.  11/45, 
U.N.  Doc.  Supp.  No.  40  (A37/40)  (Mar.  31, 1982)  [hereinafter  Guerrero  case]. 

92.  Isayeva  v.  Russia,  App.  No.  57950/00, 41  Eur.  Ct.  H.R.  Rep.  paras.  175-76  (2005). 

93.  For  an  overview,  see  NILS  MELZER,  TARGETED  KILLING  IN  INTERNATIONAL  LAW  169-73, 
384-92  (2008). 

94.  UCIHL  Report,  supra  note  47,  at  36. 

95.  ICCPR,  supra  note  29,  art.  9(1).  See  also  European  Convention,  supra  note  29,  art.  5(1); 
American  Convention,  supra  note  29,  art.  7;  African  Charter  on  Human  and  Peoples'  Rights  art. 
6,  June  17,  1981,  OAU  Doc.  CAB/LEG/67/3  rev.  5,  21  INTERNATIONAL  LEGAL  MATERIALS  58 
(1982)  [hereinafter  African  Charter]. 

96.  ICCPR,  supra  note  29,  art.  9(1);  European  Convention,  supra  note  29,  art.  5;  American 
Convention,  supra  note  29,  art.  7(3);  African  Charter,  supra  note  95,  art.  6. 

97.  See  Guzzardi  v.  Italy,  3  Eur.  Ct.  H.R.  Rep.  333,  para.  102  (1981). 

98.  See  D.J.  Harris,  Michael  O'Boyle  8c  Colin  Warbrick,  Law  of  the  European  Con- 
vention ON  HUMAN  RIGHTS  115-21,  particularly  117  (1995)  (in  human  rights  terms  "intern- 
ment" is  more  commonly  referred  to  as  "preventive  detention");  see  also  CLARE  OVEY  &  ROBIN 
C.A.  White,  Jacobs  and  White:  European  Convention  on  Human  Rights  108-10  (3d  ed. 

2002). 

99.  Lawless  v.  Ireland,  3  Eur.  Ct.  H.R.  (ser.  A)  at  51-53;  1  Eur.  H.R.  Rep.  15,  para.  14  of  sec- 
tion entitled  "The  Law"  (1979-80). 

100.  Mukong  v.  Cameroon,  Comm.  No.  458/1991,  U.N.  Doc.  CCPR/C/51/D/458/1991 
(1994),  reprinted  in  OFFICE  OF  THE  UNITED  NATIONS  HIGH  COMMISSIONER  FOR  HUMAN 

Rights,  5  Selected  Decisions  of  the  Human  Rights  Committee  86  (1994). 

101.  H.  van  Alphen  v.  The  Netherlands,  Hum.  Rts.  Comm.,  Comm.  No.  305/1988,  U.N.  Doc. 
A/45/40  (vol.  II)  at  115,  para.  5.8  (1990);  Spakmo  v.  Norway,  Hum.  Rts.  Comm.,  Comm.  No. 
631/1995,  U.N.  Doc.  A/55/40  (vol.  II)  at  26,  para.  6.3  ( 1999).  See  also  U.N.  Human  Rights  Commit- 
tee, General  Comment  No.  8,  Right  to  liberty  and  security  of  persons  (Art.  90),  paras.  1  and  4  ( 1 982). 

102.  ICCPR,  supra  note  29,  art.  9(2);  European  Convention,  supra  note  29,  art.  5(2).  See  also 
American  Convention,  supra  note  29,  art.  7(4). 

103.  ICCPR,  supra  note  29,  art.  9(4).  See  also  European  Convention,  supra  note  29,  art.  5(4); 
American  Convention,  supra  note  29,  art.  7(6);  African  Charter,  supra  note  95,  art.  7(l)(a). 

104.  Habeas  Corpus  in  Emergency  Situations  (arts.  27(2)  and  7(6)  of  the  American  Conven- 
tion), Advisory  Opinion  OC-8/87,  January  30,  1987,  Inter-Am.  C.H.R.  (Ser.  A)  No.  8  (1987). 

105.  See  U.N.  Human  Rights  Committee,  General  Comment  No.  29,  U.N.  Doc.  CCPR/C/21/ 
Rev.l/Add.l  1  on  Art.  4  ICCPR,  para.  16  (2001)  [hereinafter  General  Comment  29]. 


461 


When  May  International  Forces  Attack  or  Detain  Someone  in  Afghanistan? 

106.  Ireland  v.  United  Kingdom,  25  Eur.  Ct.  H.R.  (ser.  A)  paras.  202-24  (1978). 

107.  Aksoy  v.  Turkey,  1996-VI  Eur.  Ct.  H.R.  2260,  paras.  78,  83  and  84. 

108.  For  a  list  of  practice  pointing  to  the  non-derogability  of  habeas  corpus,  see  HENCKAERTS 
&  DOSWALD-BECK,  supra  note  55,  at  350-51  and  accompanying  footnotes  (including  General 
Comment  29,  supra  note  105,  para.  16).  See  also  Doug  Cassel,  Security  Detention  under  Interna- 
tional Human  Rights  and  Humanitarian  Law,  98  JOURNAL  OF  CRIMINAL  LAW  &  CRIMINOLOGY 
811  (2008);  Pejic,  supra  note  74,  at  387.  Although  the  decision  was  solely  based  on  the  US  Consti- 
tution, one  could  also  refer  to  the  decision  of  the  US  Supreme  Court  in  Boumediene  v.  Bush,  128 
S.Ct.  2229  (2008),  which  indicates  that  States  consider  habeas  corpus  to  cover  even  persons  char- 
acterized as  enemy  combatants  in  an  armed  conflict. 

109.  Legality  of  the  Threat  or  Use  of  Nuclear  Weapons,  Advisory  Opinion,  1996  I.C.J.  226, 
para.  25  (July  8);  Legal  Consequences  of  the  Construction  of  a  Wall  in  the  Occupied  Palestinian 
Territory,  Advisory  Opinion,  2004  I.C.J.  136,  para.  106. 

1 10.  See  Nigel  S.  Rodley,  Can  Armed  Opposition  Groups  Violate  Human  Rights  Standards?,  in 
HUMAN  RIGHTS  IN  THE  TWENTY-FIRST  CENTURY  297  (Kathleen  E.  Mahoney  &  Paul  Mahoney 
eds.,  1993);  U.N.  Econ.  &  Soc.  Council,  Report  of  the  Consultative  Meeting  on  the  Draft  Basic  Prin- 
ciples and  Guidelines  on  the  Right  to  a  Remedy  and  Reparations  for  Victims  of  Violations  of  Interna- 
tional Human  Rights  and  Humanitarian  Law  para.  57,  U.N.  Doc.  E/CN. 4/2003/63  (Dec.  27, 
2002).  For  a  more  progressive  view,  see  ANDREW  CLAPHAM,  HUMAN  RIGHTS  OBLIGATIONS  OF 

Non-State  actors  271-99  (2006). 

111.  Marco  Sassoli,  Le  droit  international  humanitaire,  une  lex specialis par  rapport  aux  droits 
humains?,  in  LES  DROITS  DE  L'HOMME  ET  LA  CONSTITUTION,  ETUDES  EN  L'HONNEUR  DU 
PROFESSEUR  GIORGIO  MALINVERNI  375-95  (Andreas  Auer,  Alexandre  Fluckiger  &  Michel 
Hottelier  eds.,  2007). 

1 12.  International  Law  Commission,  Fragmentation  of  International  Law:  Difficulties  Arising 
from  the  Diversification  and  Expansion  of  International  Law,  Report  of  the  Study  Group  of  the  Inter- 
national Law  Commission  para.  1 12,  U.N.  Doc.  A/CN.4/L.682  (Apr.  13, 2006)  {finalized  by Martti 
Koskenniemi)  [hereinafter  Fragmentation  of  International  Law];  Heike  Krieger,  A  Conflict  of 
Norms:  The  Relationship  between  Humanitarian  Law  and  Human  Rights  Law  in  the  ICRC  Cus- 
tomary Law  Study,  11  JOURNAL  OF  CONFLICT  &  SECURITY  LAW  265,  269,  271  (2006);  Philip 
Alston  et  al.,  The  Competence  of  the  UN  Human  Rights  Council  and  its  Special  Procedures  in  rela- 
tion to  Armed  Conflicts:  Extrajudicial  Executions  in  the  "War  on  Terror,"  19  EUROPEAN  JOURNAL 
OF  INTERNATIONAL  LAW  183,  192  (2008);  Report  of  the  International  Law  Commission  on  the 
Work  of  its  Fifty-Sixth  Session  para.  304,  U.N.  GAOR,  59th  Sess.  Supp.  No.  10,  U.N.  Doc.  A/59/ 
10  (2004). 

113.  Anja  Lindroos,  Addressing  Norm  Conflicts  in  a  Fragmented  System:  The  Doctrine  of  Lex 
Specialis,  74  NORDIC  JOURNAL  OF  INTERNATIONAL  LAW  27,  42  (2005). 

114.  These  terms  were  first  used  by  Mary  Ellen  Walker,  an  LL.M.  student  at  the  Geneva  Acad- 
emy of  International  Humanitarian  Law  and  Human  Rights  in  my  2008  IHL  class. 

115.  Karl  Larenz,  Methodenlehre  der  Rechtswissenschaft  267-68  (6th  ed.  1991 ). 

116.  Norberto  Bobbio,  Des  criterespour  resoudre  les  antinomies,  in  LES  ANTINOMIES  EN  DROIT: 
ETUDES  244  (Chaim  Perelman  ed.,  1965). 

117.  See,  e.g.,  SEYED  ALI  SADAT-AKHA,  METHODS  OF  RESOLVING  CONFLICTS  BETWEEN 
TREATIES  124  (2003). 

118.  See  the  ECtHR  concerning  the  relationship  between  Articles  13  and  5(4)  of  the  ECHR. 
Brannigan  and  McBride  v.  United  Kingdom,  258  Eur.  Ct.  H.R.  (ser.  A)  at  57,  para.  76  (1993). 

119.  Fragmentation  of  International  Law,  supra  note  112,  para.  107. 

120.  Krieger,  supra  note  1 12,  at  280. 


462 


Marco  Sassdli 


121.  Bobbio,  supra  note  116,  at  240-41.  See  also  Wilfred  Jenks,  The  Conflict  of  Law-Making 
Treaties,  30  BRITISH  YEAR  BOOK  OF  INTERNATIONAL  LAW  450  (1953). 

122.  HENCKAERTS  &  DOSWALD-BECK,  supra  note  55,  at  299-383. 

123.  Marco  SassOli,  Bedeutung  einer  Kodifikation  fur  das  allgemeine 
volkerrecht — mit  besonderer  betrachtung  der  regeln  zum  schutze  der 
zlvilbevolkerung  vor  den  auswirkungen  von  feindseligkeiten  (1990). 

124.  Direct  Participation  2005  Report,  supra  note  46,  at  52. 

125.  UCIHL  Report,  supra  note  47,  at  38;  Direct  Participation  2005  Report,  supra  note  46,  at 
51-52. 

126.  Legality  of  the  Threat  or  Use  of  Nuclear  Weapons,  Advisory  Opinion,  1996  I.C.J.  226, 
supra  note  109,  para.  25. 

127.  Alston  et  al,  supra  note  112,  at  192-93. 

128.  If  the  person  targeted  is  under  control  both  IHL  and  IHRL  prohibit  summary  execution. 

129.  Doswald-Beck,  supra  note  43,  at  897;  UCIHL  Report,  supra  note  47,  at  36;  Kretzmer,  supra 
note  48,  at  203;  Cordula  Droege,  The  Interplay  between  International  Humanitarian  Law  and  In- 
ternational Human  Rights  Law  in  Situations  of  Armed  Conflict,  40  ISRAEL  LAW  REVIEW  347 
(2007). 

130.  Droege,  supra  note  129,  at  347. 

131.  Public  Committee  against  Torture,  supra  note  52,  para.  40;  Doswald-Beck,  supra  note 
43,  at  891. 

132.  Public  Committee  against  Torture,  supra  note  52,  para.  40. 

133.  Kretzmer,  supra  note  48,  at  203. 

134.  Guerrero  case,  supra  note  91,  para.  13.1-13.3;  Public  Committee  against  Torture,  supra 
note  52,  para.  40;  Orna  Ben-Naftali  &  Keren  R.  Michaeli,  "We  Must  Not  Make  a  Scarecrow  of  the 
Law":  A  Legal  Analysis  of  the  Israeli  Policy  of  Targeted  Killings,  36  CORNELL  INTERNATIONAL 
LAW  JOURNAL  233,  290  (2003). 

135.  In  relation  to  armed  groups,  it  is  uncertain  that  the  lex  specialis  is  the  same  as  for  govern- 
ment soldiers.  Both  parties  must  be  equal  as  far  as  the  applicable  IHL  is  concerned,  but  they  are 
not  equal  as  far  as  IHRL  is  concerned.  Even  if  the  latter  is  addressed  to  non-State  actors,  it  can 
only  require  from  them  certain  conduct  toward  persons  who  are  in  an  area  under  their  control. 
In  addition,  a  State  has  the  alternative  of  law  enforcement;  therefore  to  plan  an  operation  in  such 
a  way  so  as  to  maximize  the  possibility  of  being  able  to  arrest  persons,  while  the  question  whether 
armed  groups  may  legislate  to  make  their  enemies'  conduct  illegal,  or  whether  they  may  enforce 
existing  legislation,  is  controversial. 

136.  See  HENCKAERTS  &  DOSWALD-BECK,  supra  note  55,  at  344-52. 

137.  Jean  S.  Pictet,  Commentary  IV  on  the  Geneva  Conventions  of  12  August  1949, 
at  260,  369  (1952). 

138.  Quoted  in  Amnesty  International  Canada  and  British  Columbia  Civil  Liberties  Associa- 
tion v.  Chief  of  the  Defence  Staff  for  the  Canadian  Forces,  Minister  of  National  Defence  and  At- 
torney General  of  Canada,  2008  F.C.  336,  para.  175,  available  at  http://www.lornewaldman.ca/ 
pdf/aidecision.pdf. 

139.  Amnesty  International,  Afghanistan:  Detainees  transferred  to  torture: 

ISAF  COMPLICITY?  (2007). 

140.  Jonathan  Somer,  Jungle  justice:  passing  sentence  on  the  equality  of  belligerents  in  non- 
international  armed  conflict,  89  INTERNATIONAL  REVIEW  OF  THE  RED  CROSS  655  (2007). 

141.  Statute  of  the  International  Criminal  Court,  supra  note  69,  art.  8(2)(e)(x).  See  also 
HENCKAERTS  &  DOSWALD-BECK,  supra  note  55,  at  161. 


463 


XVIII 


Afghanistan  Legal  Lessons  Learned: 
Army  Rule  of  Law  Operations 

Eric  Talbot  Jensen  and  Amy  M.  Pomeroy* 


In  2002,  the  White  House  published  the  National  Security  Strategy.  Rather  than 
focusing  exclusively  on  military  operations,  the  strategy  is  comprehensive  and 
recognizes  that  acts  ranging  from  poverty  reduction  to  disease  eradication  will 
contribute  to  America's  national  security.  However,  one  of  the  most  crucial  com- 
ponents of  the  National  Security  Strategy  which  will  impact  virtually  all  other  com- 
ponents is  the  worldwide  implementation  of  the  rule  of  law.1  In  furtherance  of  the 
National  Security  Strategy,  National  Security  Presidential  Directive  44  was  issued 
in  late  2005  and  states  that  it  is  US  policy  to  work  with  other  countries  toward  effec- 
tive implementation  of  the  rule  of  law.2  The  directive  tasks  the  Secretaries  of  State 
and  Defense  with  coordinating  rule  of  law  efforts  and  with  integrating  them  into 
military  contingency  plans.  Consequently,  by  direction  of  the  President,  the  mili- 
tary has  a  key  role  to  play  in  implementing  the  rule  of  law  and  judge  advocates  ( JAs) 
must  be  prepared  to  lead  these  efforts. 


*  Lieutenant  Colonel  Eric  Talbot  Jensen,  Judge  Advocate,  US  Army,  and  Amy  M.  Pomeroy, 
Student,  Brigham  Young  University  Law  School  serving  as  a  Legal  Intern,  International  Law 
Branch,  Office  of  The  Judge  Advocate  General,  US  Army.  The  views  expressed  in  this  article  are 
those  of  the  authors  and  not  The  Judge  Advocate  General's  Corps,  the  United  States  Army  or  the 
Department  of  Defense. 


Afghanistan  Legal  Lessons  Learned:  Army  Rule  of  Law  Operations 

Commanders  look  to  JAs  with  the  expectation  that  they  will  be  competent  and 
innovative  in  implementing  the  unit's  rule  of  law  mission.3  This  is  clearly  demon- 
strated by  the  Center  for  Law  and  Military  Operations'  publication  of  the  Rule  of 
Law  Handbook:  A  Practitioner's  Guide  for  Judge  Advocates  (Rule  of  Law  Handbook) , 
where  a  "constantly  re-occurring  theme"  is  that  "the  command  naturally  turns  to 
the  legal  expert  within  the  task  force  to  plan,  execute,  coordinate,  and  evaluate  rule 
of  law  efforts."4 

Over  six  years  of  operations  in  Afghanistan,  during  which  commanders  have  re- 
lied on  JAs  in  their  rule  of  law  operations,  have  created  a  number  of  lessons  learned; 
this  paper  will  highlight  three: 

•  Rule  of  law  operations  must  be  totally  integrated  into  all  phases  and  aspects 
of  military  operations  and  the  unit  mission; 

•  US  Army  rule  of  law  efforts  must  be  completely  coordinated  and 
synchronized  with  other  rule  of  law  efforts,  especially  those  of  the  host  nation,  and 
must  recognize  what  role  the  military  is  organizationally  qualified  to  fill;  and 

•  Military  rule  of  law  operations  must  be  effects-based. 

Before  addressing  these  lessons  learned,  it  is  important  to  highlight  the  discus- 
sion surrounding  the  definition  of  rule  of  law.  There  are  divergent,  and  often  con- 
flicting, views  among  academics,  US  government  agencies,  US  allies  and  even 
within  the  Department  of  Defense,  on  what  is  meant  by  the  rule  of  law.5  This  defi- 
nitional ambiguity  allows  two  organizations  or  individuals  to  be  deeply  committed 
to  accomplishing  rule  of  law  tasks,  yet  proceed  in  diametrically  opposed  directions. 

Additionally,  it  is  important  to  discuss  the  obligation  that  international  law  cre- 
ates to  conduct  rule  of  law  operations.  Recent  court  decisions  such  as  those  of  the 
United  Kingdom's  House  of  Lords  in  Al-Jedda,6  the  European  Court  of  Human 
Rights  cases  from  Kosovo7  and  Canada's  Amnesty  International  v.  Canada8  have  re- 
lied on  Security  Council  resolutions  to  determine  the  substance  and  extent  of  legal 
obligations  imposed  on  armed  forces.  The  United  Nations  Security  Council  has 
signaled  through  several  resolutions9  that  supporting  and  promoting  rule  of  law 
initiatives  are  not  only  permissible,  but  are  obligations  that  participants  in  armed 
conflict  are  required  to  fulfill.  It  is  incumbent  on  US  forces  to  be  aware  of  these 
emerging  practices  and  recognize  that  these  obligations  will  likely  follow  any 
armed  conflict,  whether  brought  on  by  reason  of  occupation  or  some  other  theory. 
With  international  law  imposing  additional  obligations  to  carry  out  rule  of  law  op- 
erations, it  is  more  crucial  than  ever  to  catalogue  lessons  learned,  analyze  their  ap- 
plication to  doctrine  and  ensure  that  the  US  military  is  conducting  its  rule  of  law 
operations  appropriately. 


466 


Eric  Talbot  Jensen  and  Amy  M.  Pomeroy 


I.  To  Be  Effective,  Rule  of  Law  Operations  Must  Be  Totally  Integrated  into  All 
Phases  and  Aspects  of  Military  Operations  and  the  Unit  Mission 

In  the  aftermath  of  World  War  II,  the  US  military  embarked  on  a  massive  rule  of 
law  project  that  continued  for  years  and  involved  a  large  pool  of  military  resources. 
However,  as  the  Cold  War  heated  up,  the  focus  transitioned  from  rebuilding  a  dev- 
astated Europe  to  defending  a  reconstructed  Europe  from  attack.  As  a  result,  the 
focus  of  military  doctrine,  training,  manning  and  equipping  also  adapted  to  this 
new  environment.  While  this  adaptation  was  necessary,  it  drew  resources  and  ex- 
pertise away  from  rule  of  law  capabilities.  Over  the  subsequent  decades,  resources, 
experience  and  training  remained  focused  in  other  areas.  The  result  was  that  JAs 
who  deployed  to  Afghanistan  felt  as  though  they  were  working  in  an  emerging  area 
of  doctrine  without  guidance  or  training.10 

This  was  felt  not  only  by  JAs,  but  by  the  Army  as  a  whole.  The  lack  of  doctrine 
and  guidance  was  a  significant  lesson  learned  from  early  operations  and  sparked  a 
number  of  initiatives  and  actions  that  have  tried  to  remedy  this  doctrinal  and  train- 
ing gap.  These  efforts  have  included  a  somewhat  circular  process  of  (1)  analyzing 
lessons  learned  from  military  operations,  (2)  rewriting  doctrine  to  include  princi- 
ples drawn  from  these  lessons,  (3)  including  this  doctrine  in  mission  training  and 
mission  rehearsal  exercises  at  combat  training  centers  and  then  (4)  collecting  les- 
sons learned  from  the  application  of  new  doctrine  in  actual  military  operations 
which  can  then  be  reviewed  and  fed  back  into  the  doctrine  review  process. 

The  first  step  in  this  process — analysis — led  to  the  recognition  that  rule  of  law 
efforts  needed  to  be  reintegrated  into  Army  doctrine.  The  second  step,  rewriting 
doctrine  to  reflect  this  recognition,  is  well  illustrated  by  several  publications  that 
emerged  after  the  initial  stages  of  engagement  in  Iraq  and  Afghanistan.  The  most 
recent  Joint  Publication  3-0,  Doctrine  for  Joint  Operations,  divides  military  opera- 
tions into  three  categories:  offensive  operations,  defensive  operations  and  stability 
operations.11  Promoting  stability  operations  to  the  same  level  as  offense  and  de- 
fense is  a  dramatic  change  from  a  Cold  War  paradigm  where  defending  the  Fulda 
Gap  against  an  invasion  by  Warsaw  Pact  forces  was  the  primary  focus. 

The  importance  of  stability  operations  is  echoed  in  the  2005  Department  of  De- 
fense Directive  3000.05,  Military  Support  for  Stability,  Security,  Transition,  and 
Reconstruction  (SSTR)  Operations,  which  states: 

Stability  operations  are  a  core  U.S.  military  mission  that  the  Department  of  Defense 
shall  be  prepared  to  conduct  and  support.  They  shall  be  given  priority  comparable  to 
combat  operations  and  be  explicitly  addressed  and  integrated  across  all  [Department 


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Afghanistan  Legal  Lessons  Learned:  Army  Rule  of  Law  Operations 

of  Defense]  activities  including  doctrine,  organization,  training,  education,  exercises, 
materiel,  leadership,  personnel,  facilities,  and  planning.12 

Rule  of  law  operations  are  an  essential  subset  of  stability  operations.  Declaring 
stability  operations  to  be  a  core  US  military  mission  has  driven  an  increase  in  the 
expenditure  of  training  resources  and  has  changed  the  planning  and  execution 
stages  to  ensure  units  can  accomplish  rule  of  law  missions. 

Doctrine  has  also  been  rewritten  to  reflect  the  roles  the  military  should  be  pre- 
pared to  fulfill  to  further  the  rule  of  law.  One  change  in  doctrine  acknowledges  that 
the  military  may  be  called  upon  to  play  a  supporting  governance  role.  Joint  Publi- 
cation 3-0  discusses  the  various  phases  of  an  operation,  the  last  two  of  which  are 
"stabilize"  and  "enable  civil  authority."  To  complete  these  last  two  phases,  "[t]he 
joint  force  maybe  required  to  perform  limited  local  governance,  integrating  the  ef- 
forts of  other  supporting/contributing  multinational,  [other  government  agencies, 
international  government  agencies,  or  nongovernmental  agencies  (NGOs)],  par- 
ticipants until  legitimate  local  entities  are  functioning.  This  includes  providing  or 
assisting  in  the  provision  of  basic  services  to  the  population."13  Further,  "The  joint 
force  will  be  in  a  supporting  role  to  the  legitimate  civil  authority  in  the  region 
throughout  the  'enable  civil  authority'  phase."14 

Current  doctrine  also  recognizes  that  the  military  can  aid  rule  of  law  develop- 
ment by  creating  security,  a  prerequisite  for  the  rule  of  law,  and  a  fundamental  mil- 
itary mission  throughout  all  phases  of  an  operation.  Depending  on  the 
circumstances,  "it  may  be  the  only  real  contribution  that  US  forces  can  make  to- 
wards implementing  the  rule  of  law."15  Experience  has  taught  that,  for  a  multitude 
of  reasons,  there  is  a  direct  correlation  between  the  establishment  of  a  safe  and  se- 
cure environment  and  the  ability  to  accomplish  rule  of  law  objectives.  Achieving 
such  an  environment  requires  in-depth  planning  from  the  very  earliest  stages  of 
the  operation. 

Finally,  military  doctrine  has  changed  to  recognize  that  US  forces  promote  the 
rule  of  law  when  their  own  actions,  across  the  spectrum  of  military  operations,  re- 
inforce the  legitimacy  of  the  rule  of  law  even  before  a  stable  environment  has  been 
created.  The  Rule  of  Law  Handbook  accurately  states  that "  [a]  command's  ability  to 
establish  the  rule  of  law  within  its  area  of  control  is  dependent  in  large  part  on  its 
own  compliance  with  legal  rules  restricting  soldiers'  (and  the  command's  own)  dis- 
cretion."16 This  idea  is  echoed  in  the  Center  for  Army  Lessons  Learned  compilation 
on  counterinsurgency  (COIN)  operations  which  states  that  "[military  actions 
[must  be]  conducted  in  consonance  with  specified  civil  rights,  liberties,  and  objec- 
tives."17 The  only  way  to  do  that  is  to  ensure  that  rule  of  law  considerations  are  an 
essential  part  of  the  unit  mission  and  intertwined  with  all  military  operations  and 


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Eric  Talbot  Jensen  and  Amy  M.  Pomeroy 


training.  Every  soldier,  sailor,  airman  and  Marine  must  recognize  that  his  or  her 
actions  can  have  a  profound  effect  on  the  success  of  the  national  strategic  interest 
in  supporting  rule  of  law  operations  throughout  the  world. 

To  effectively  carry  out  these  and  other  doctrinal  changes,  the  Army  has  trans- 
formed its  combat  training  centers  into  stability  operations  training  grounds.  The 
National  Training  Center  in  California,  Joint  Readiness  Training  Center  in  Louisi- 
ana and  Joint  Multinational  Readiness  Center  in  Germany  have  all  incorporated 
stability  operations,  including  rule  of  law  operations,  into  their  training  scenarios. 
Units  routinely  conduct  "mission  rehearsal  exercises"  at  these  locations  to  prepare 
themselves  for  the  actual  events  that  will  take  place  in  an  impending  deployment  to 
Afghanistan  or  Iraq.  This  training  not  only  incorporates  the  new  stability  opera- 
tions doctrine,  but  also  the  most  recent  lessons  learned  from  units  currently  de- 
ployed. With  this  training,  units  are  better  prepared  to  deploy  to  Afghanistan  and 
similar  environments  and  support  rule  of  law  operations. 

The  importance  of  promoting  and  complying  with  the  rule  of  law  has  been 
clearly  stated  in  almost  every  "lesson  learned"  from  deployed  units.  The  doctrine  is 
now  in  place  and  in  the  process  of  continual  review  based  on  continuing  feedback 
from  current  military  operations.  Furthermore,  mechanisms  for  implementing  the 
doctrine,  such  as  training  at  the  combat  maneuver  training  centers,  are  also  in 
place.  What  remains  is  for  the  doctrine  to  be  implemented  on  the  ground,  ensuring 
that  these  legal  lessons  are  truly  learned,  not  lost. 

II.  US  Army  Rule  of  Law  Efforts  Must  Be  Completely  Coordinated  and 

Synchronized  with  Other  Rule  of  Law  Efforts,  Especially  Those  of  the  Host 

Nation,  and  Must  Recognize  What  Role  the  Military  Is 

Organizationally  Qualified  to  Fill 

Because  rule  of  law  efforts  are  so  complex,  they  are  most  effective  when  all  contrib- 
uting groups,  especially  the  host  nation,  coordinate  with  one  another  rather  than 
inadvertently  working  at  cross  purposes.  The  Rule  of  Law  Handbook  illustrates  this 
point: 

Rule  of  law  operations  in  Iraq  and  Afghanistan  have  repeatedly  demonstrated  that  rule 
of  law  practitioners  who  seek  to  coordinate  efforts,  funding,  and  resources  with  other 

agencies  and  organizations  yield  the  most  effective  results [A]  s  hostilities  come  to  a 

close  other  [US  Government]  agencies  . . .  will  arrive  in  theater.  Regional,  state-based 
economic  and  security  organizations  such  as  the  Gulf  Cooperative  Council  or  the 
Organization  for  Security  and  Cooperation  in  Europe  .  .  .  may  have  a  presence.  The 
United  Nations  may,  depending  upon  the  operation  have  a  presence,  as  may 
nongovernmental  agencies  with  an  interest  in  human  rights  and  justice.  Each  of  these 

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Afghanistan  Legal  Lessons  Learned:  Army  Rule  of  Law  Operations 

organizations  is  a  tool  and  potential  force  multiplier  for  the  rule  of  law  Judge  Advocate 
to  maximize  the  effect  of  his  efforts.18 

Unfortunately,  the  US  military  and  the  world  at  large  had  not  yet  learned  this 
lesson  when  operations  began  in  Afghanistan: 

Pursuant  to  the  Bonn  Agreement,  the  rule  of  law  effort  in  Afghanistan  was  organized 
by  a  "lead  nation"  approach,  with  different  countries  taking  the  lead  in  developing 
different  aspects  of  the  rule  of  law  in  Afghanistan.  Germany  became  the  lead  nation  for 
developing  the  Afghan  police  force,  while  Italy  was  given  responsibility  for  developing 
the  judicial  sector  ....  The  split  international  effort  has  proven  unwieldy  for  many 

reasons,  since  a  rule  of  law  effort  has  to  address  police  and  judicial  reform  in  concert 

[and]  the  division  of  tasks  among  nations  did  not  necessarily  match  the  structure  of  the 
Afghan  government's  legal  administrative  apparatus.19 

Not  only  is  the  lead-nation  approach  unwieldy,  it  has  not  been  well  received  by 
Afghanistan.  The  2008  Paris  Conference  made  it  clear  that  Afghanistan  is  the  lead 
nation  for  Afghanistan's  rule  of  law  initiatives.  This  led  to  a  change  in  approach  by 
interested  nations  and  caused  some  adaptation  to  the  lead-nation  concept.20 

This  incongruent  approach  on  the  international  level  was  little  different  from 
the  approach  at  the  US  national  level.  US  agencies  involved  in  rule  of  law  opera- 
tions in  Afghanistan  include  the  Department  of  State,  the  Office  of  the  Coordina- 
tor for  Reconstruction  and  Stabilization  (S/CRS),  the  Bureau  for  International 
Narcotics  and  Law  Enforcement  Affairs,  the  United  States  Agency  for  Interna- 
tional Development  (USAID),  the  Department  of  Justice,  the  United  States  Insti- 
tute for  Peace,  the  Department  of  Defense  (including  judge  advocates,  civil  affairs 
personnel,  military  police  and  Provincial  Reconstruction  Teams),21  the  Defense 
Institute  of  International  Legal  Studies  and  the  Combined  Security  Transition 
Command-Afghanistan.  One  lesson  learned  that  has  been  constant  throughout 
the  operation  in  Afghanistan,  and  has  been  emphasized  as  recently  as  the  fall  of 
2007,  is  that  all  these  organizations  are  working  hard,  but  their  efforts  are  not  well 
coordinated. 

This  lack  of  concerted  effort  on  rule  of  law  operations  was  noted  early  in  Af- 
ghanistan operations  and  the  US  government  has  taken  steps  to  try  and  solve  this 
problem.  As  previously  mentioned,  the  Department  of  Defense  promulgated  Joint 
Publication  3-0  and  Department  of  Defense  Directive  3000.05,  both  of  which  draw 
attention  to  the  necessity  of  interagency  and  intergovernmental  cooperation  for 
long-term  success.22  In  December  of  2005,  President  Bush  promulgated  National 
Security  Presidential  Directive  44,  which  recognizes  the  prior  lack  of  coordination 
and  states: 


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Eric  Talbot  Jensen  and  Amy  M.  Pomeroy 


To  achieve  maximum  effect,  a  focal  point  is  needed  (i)  to  coordinate  and  strengthen 
efforts  of  the  United  States  Government  to  prepare,  plan  for,  and  conduct 
reconstruction  and  stabilization  assistance  and  related  activities  in  a  range  of  situations 
that  require  the  response  capabilities  of  multiple  United  States  Government  entities 
and  (ii)  to  harmonize  such  efforts  with  U.S.  military  plans  and  operations.23 

The  directive  then  identifies  who  will  be  responsible  for  this  coordination,  stating: 

The  Secretary  of  State  shall  coordinate  and  lead  integrated  United  States  Government 
efforts,  involving  all  U.S.  Departments  and  Agencies  with  relevant  capabilities,  to 
prepare,  plan  for,  and  conduct  stabilization  and  reconstruction  activities.  The 
Secretary  of  State  shall  coordinate  such  efforts  with  the  Secretary  of  Defense  to  ensure 
harmonization  with  any  planned  or  ongoing  U.S.  military  operations  across  the 
spectrum  of  conflict.24 

This  directive  was  followed  by  the  creation  of  the  Department  of  State,  Office  of 
the  Coordinator  for  Reconstruction  and  Stabilization  in  August  2004.  The  mission 
of  the  S/CRS  is  "  [t]o  lead,  coordinate  and  institutionalize  U.S.  Government  civilian 
capacity  to  prevent  or  prepare  for  post-conflict  situations,  and  to  help  stabilize  and 
reconstruct  societies  in  transition  from  conflict  or  civil  strife,  so  they  can  reach  a 
sustainable  path  toward  peace,  democracy  and  a  market  economy."25 

The  S/CRS  acknowledges  the  difficulty  in  harmonizing  efforts  in  this  area.  Its 
website  proclaims: 

Until  now,  the  international  community  has  undertaken  stabilization  and 
reconstruction  operations  in  an  ad  hoc  fashion,  recreating  the  tools  and  relationships 
each  time  a  crisis  arises.  If  we  are  going  to  ensure  that  countries  are  set  on  a  sustainable 
path  towards  peace,  democracy  and  a  market  economy,  we  need  new,  institutionalized 
foreign  policy  tools — tools  that  can  influence  the  choices  countries  and  people  make 
about  the  nature  of  their  economies,  their  political  systems,  their  security,  indeed,  in 
some  cases  about  the  very  social  fabric  of  a  nation.26 

Unfortunately,  neither  the  establishment  of  the  S/CRS  nor  any  other  initiative 
by  the  Department  of  Defense,  Department  of  State  or  any  other  agency  has  been 
sufficient  to  create  a  synchronized  approach  to  rule  of  law  in  Afghanistan,  even  af- 
ter almost  seven  years  of  rule  of  law  operations. 

It  would  be  unfair  to  attribute  this  failure  either  to  the  Department  of  State  or  to 
the  Department  of  Defense,  or  to  any  other  single  factor  for  that  matter.  But  there 
are  clearly  some  lessons  that  have  been  learned  by  the  US  Army.  The  first  is  that  any 
successful  rule  of  law  initiative  must  be  host-nation  driven.  If  the  people  and  gov- 
ernments (whether  local,  regional  or  national)  of  Afghanistan  are  not  consulted,  or 


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Afghanistan  Legal  Lessons  Learned:  Army  Rule  of  Law  Operations 

fail  to  embrace  proposed  rule  of  law  operations,  not  only  are  the  operations 
doomed  to  failure,  they  will  not  promote  the  strategic  interests  of  the  United  States. 
Conversely,  when  Afghanis  and  the  Afghan  government  are  a  part  of  a  cooperative 
effort,  great  progress  can  be  made.  One  such  example  of  a  successful  rule  of  law  col- 
laboration with  the  host  nation  is  the  creation  of  the  Provincial  Justice  Conferences 
(PJC)  program  in  Afghanistan: 

The  Provincial  Justice  Conferences  (PJCs)  program  attempts  to  [bring  Government  of 
Afghanistan  (GoA)]  justice  officials  from  Kabul  to  meet  their  counterparts  in  the 
provinces  to  discuss  the  obstacles  to  delivery  of  justice  services  to  the  province  and  to 
identify  solutions  that  can  be  instituted  expediently  and  in  a  cost-effective  way.  Follow- 
up  PJCs  are  generally  scheduled  within  a  period  of  three  to  six  months  to  check  on 
progress  made  on  the  identified  solutions  and  to  discuss  outstanding  issues.  One 
essential  key  to  a  successful  PJC  has  been  the  invitation  and  inclusion  of  all  interested 
[US  government  (USG)]  agencies,  the  international  community,  and  NGO 
representatives.  Each  agency  or  organization  has  the  benefit  of  significant,  specialized, 
and  diverse  experience.  With  the  inclusion  of  as  many  subject-matter  experts  as 
possible,  new  ideas  may  emerge  to  correct  persistent  problems. 

As  of  the  first  quarter  of  2007,  PJCs  and  follow-up  PJCs  [had]  been  conducted  in  six 
provinces  in  Afghanistan.  The  first  PJCs  drew  small  attendance  from  among  the 
provincial  justice  officials,  but  more  recent  PJCs  have  drawn  upwards  of  150  people 
from  the  national,  provincial,  and  district  levels,  and,  in  some  cases,  from  neighboring 
provinces.  A  typical  PJC  program  consists  of  several  distinct  parts.  First,  all  participants 
are  taken  on  a  tour  of  justice  facilities  in  the  provincial  capital,  to  include  the  prison, 
police  headquarters/detention  centers,  judges'  office,  prosecutor's  office,  courthouse, 
and  defense  counsel  offices  (if  any).  This  feature  gives  participants  a  first-hand  view  of 
the  justice  infrastructure  and  an  opportunity  to  observe  justice  officials  in  their  own 
environments.  Second,  a  general  session  of  all  participants  is  convened  and  hosted  by 
the  provincial  governor.  Brief  comments  from  the  governor,  justice  officials,  and  USG/ 
international  participants  are  presented.  After  a  communal  lunch,  hosted  by  one  or 
more  of  the  USG  participants,  conferees  are  divided  into  groups  representing  their 
individual  justice  interests — police,  judges,  prosecutors,  defense  counsel,  and  prison 
administrators.  These  groups  discuss  specialized  problems  and  their  potential 
solutions.  The  small  groups  take  notes  on  their  discussions  from  which  a  mark  plan  can 
be  developed.  Finally,  the  small  group  leaders  from  either  GoA  or  the  provincial 
government  present  summaries  of  their  discussions  to  a  final  general  session  at  the  end 
of  the  day.27 

Organizing  a  PJC  is  a  difficult  and  time-consuming  process  and  becomes  more 
so  as  the  organizing  rule  of  law  officer  attempts  to  include  all  interested  agencies. 
However,  it  is  this  type  of  coordination  and  inclusion  that  links  agency  resources 
with  the  Afghanis  who  are  attempting  to  create  the  rule  of  law  in  courtrooms  and 


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Eric  Talbot  Jensen  and  Amy  M.  Pomeroy 


police  stations.  This  host-nation  lead  in  rule  of  law  programs  is  vital  to  their  con- 
tinued vitality  and  eventual  success. 

A  second  lesson  is  that  the  military  is  not  the  most  qualified  or  appropriate  body 
to  conduct  many  aspects  of  rule  of  law  operations.  Department  of  Defense  Direc- 
tive 3000.05  recognizes  this  and  states,  "[m]any  stability  operations  tasks  are  best 
performed  by  indigenous,  foreign,  or  U.S.  civilian  professionals."28  There  are  sim- 
ply tasks  that  the  military  is  not  the  most  qualified  to  perform.  A  recent  after-action 
review  highlights  this  point: 

The  military  possesses  an  organizational  culture  that  is  different  from  the  rest  of  the 
interagency.  The  military  skill  sets  are  required  in  order  to  establish  the  rule  of  law 
initially,  and  then  other  elements  of  national  power  are  better  suited  to  restore 
economic  and  industrial  power.  Two  main  points  of  understanding  are  ( 1 )  civilians  are 
not  in  the  military  chain  of  command  and  do  not  accept  military  leadership  and  (2) 
civilians  cannot  be  ordered  to  do  anything.  The  interagency  operates  on  the  unity  of 
effort,  while  the  military  prefers  unity  of  command.29 

Additionally,  it  would  simply  be  counterproductive  for  the  military  to  undertake 
certain  tasks,  as  doing  so  could  create  reliance  on  military  action  by  the  host  nation 
and  others. 

Despite  the  military's  inherently  limited  ability  to  implement  the  rule  of  law,  in 
the  absence  of  other  options,  the  military  may  find  it  necessary  to  step  into  a  vac- 
uum in  order  to  ensure  that  certain  necessary  tasks  are  accomplished.  Department 
of  Defense  Directive  3000.05  also  recognizes  this  side  of  the  coin  and,  after  recog- 
nizing that  many  stability  operations  are  ideally  left  to  others,  states  that, 
"  [nonetheless,  U.S.  military  forces  shall  be  prepared  to  perform  all  tasks  necessary 
to  establish  or  maintain  order  when  civilians  cannot  do  so."30  While  few  would 
likely  quibble  with  this  statement,  applying  it  is  more  difficult,  especially  determin- 
ing when  the  time  is  right  for  the  military  to  step  up  and  perform  these  tasks  as  op- 
posed to  waiting  for  others.  This  difficult  decision  must  be  made  and  made 
competently  by  commanders  and  J  As  on  the  ground  using  their  best  judgment. 

A  third  lesson  is  that  the  rule  of  law  is  more  effectively  implemented  when  all 
players  act  in  concert.  JAs  need  to  plan  for  and  work  within  the  multinational  and 
interagency  environment  in  order  to  maximize  efficiency,  effectiveness  and  en- 
gagement. If  the  US  military  doesn't  function  within  the  joint,  interagency  and 
multinational  environment  when  forwarding  rule  of  law  initiatives,  it  simply  does 
not  function  effectively.  As  the  Rule  of  Law  Handbook  accurately  states,  "[w]hat  is 
agreed  upon  by  almost  every  individual  who  has  worked  in  this  area  is  that  joint, 
inter-agency,  and  multinational  coordination  is  the  basic  foundation  upon  which 
all  rule  of  law  efforts  must  be  built."31  And  further: 

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Afghanistan  Legal  Lessons  Learned:  Army  Rule  of  Law  Operations 

Without  coordination  with  other  players  in  the  rule  of  law  arena,  the  efforts  of  a  single 
contributor  in  isolation  are  at  best  less  than  optimal  and  at  worst  counterproductive  to 
the  overall  rule  of  law  reform  objectives  being  pursued.  Quite  simply,  coordination  and 
synchronization  is  to  the  rule  of  law  effort  what  fires  and  maneuver  is  to  the  high 
intensity  conflict.32 

As  the  Army  internalizes  this,  it  will  be  better  able  to  coordinate  with  other 
agencies. 

Despite  initial  and  continuing  difficulties,  there  have  been  instances  in  which 
the  military  has  worked  successfully  with  other  agencies  to  create  positive  results. 
The  following  illustration  from  the  Rule  of  Law  Handbook  is  based  on  lessons 
learned  through  after-action  reviews.  While  lengthy,  it  demonstrates  quite  clearly 
the  increased  likelihood  of  success  for  rule  of  law  operations  when  a  broad  range  of 
parties  are  involved. 

Nowhere  was  the  interagency  success  more  evident  than  the  justice  sector 
achievements  in  the  Wardak  province  known  as  the  Wardak  Model  Justice  Project.  In 
late  2005,  the  Justice  Sector  Support  Program  (JSSP),  a  contractor  of  the  [Department 
of  State  (DOS)]  International  Narcotics  and  Law  Enforcement  Affairs  Bureau  (INL), 
began  a  training  program  for  provincial  and  district  level  judges  and  prosecutors  in 
Maydan  Wardak.  Almost  simultaneously,  but  without  advanced  coordination,  DOD 
rule  of  law  and  [Civil  Affairs  (CA)]  personnel  teamed  up  to  build  a  justice 
administration  building  in  Maydan  Shar.  Using  [Commander's  Emergency  Response 
Program  (CERP)]  funds,  available  to  tactical  commanders  for  urgent  and 
humanitarian  rebuilding  projects  in  post-conflict  Afghanistan  and  Iraq,  the 
[Combined  Forces  Command-Afghanistan  (CFC-A)]  rule  of  law  and  CA  team 
obtained  the  blueprints  for  a  generic  administration  building  from  USAID.  USAID 
was  using  the  blueprints  to  build  up  to  40  provincial  courthouses  throughout 
Afghanistan.  Using  these  blueprints,  CFC-A  began  construction  in  early  2006  on  the 
justice  administration  building  in  Maydan  Shar. 

Momentum  gathered  as  the  people  of  Maydan  Wardak  generated  more  enthusiasm  for 
the  improvements  being  made.  The  USG  agencies  began  to  look  more  carefully  at  each 
other's  rule  of  law  activities  in  Maydan  Wardak,  and,  aided  by  strong  leadership  on  the 
Special  Committee  for  the  Rule  of  Law[,]  began  a  concerted  coordination  effort  to 
build  on  those  successes.  Lessons  learned  were  shared  among  the  Special  Counselor  on 
the  Rule  of  Law  agency  representatives,  resulting  in  more  efficient  delivery  of  proposed 
projects. 

USAID  began  construction  on  a  new  courthouse,  and  one  of  its  contractors  offered  to 
introduce  its  new  paper-based  court  administration  system  in  Maydan  Shar.  CFC-A 
also  provided  a  justice  motor-pool  (with  maintenance  and  fuel  packages)  and 
sponsored  a  public  awareness  campaign  to  let  the  citizens  of  the  province  know  the 


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Eric  Talbot  Jensen  and  Amy  M.  Pomeroy 


steps  being  taken  to  improve  the  delivery  of  justice  services.  At  the  same  time,  CFC-A 
contracted  with  an  Afghan  NGO  to  provide  defense  counsel  services  to  criminal 
defendants  in  Wardak  and  five  other  provinces.  Ultimately,  building  on  the  combined 
efforts  of  the  other  USG  agencies,  the  DOS  announced  in  late  2006  that  it  would  build  a 
new,  state-of-the-art  prison  and  national  corrections  training  facility  in  Maydan 
Wardak.  The  result  of  the  ongoing  combined  efforts  of  these  agencies  was  the  Wardak 
Model  Justice  Project,  the  name  reflecting  the  goal  of  the  agencies  involved  that  the 
justice  system  in  Maydan  Wardak  should  be  rebuilt  to  serve  as  a  model  for  the 
international  community  and  the  GoA  for  such  improvements  in  other  provinces. 

Interagency  cooperation  and  communications  between  the  agencies  involved  in 
Wardak  continues  in  2007.  A  group  of  agency  representatives  and  provincial  justice 
and  government  officials  gathers  monthly  in  Wardak  to  discuss  problems  with  and 
future  plans  for  further  expansion  of  the  Wardak  Model  Justice  Project.  Visibility  on 
this  project  remains  high  as  the  provincial  governor  continues  to  chair  each  monthly 
meeting.  Participants  from  all  USG  agencies  are  invited  to  these  meetings,  as  well  as 
representatives  of  the  international  community  and  various  NGOs.  The  recently 
arrived  Turkish  Provincial  Reconstruction  Team  (PRT)  brought  a  police  training  team 
with  them,  and  this  program  has  been  incorporated  into  the  Wardak  Model  Justice 
Project.  Similar  efforts  are  being  planned  for  Nangarhar,  Bamyian,  and  Logar 
provinces  as  part  of  [a]  wider  DOS  strategic  plan  for  implementation  of  its  rule  of  law 
program.33 

While  the  Wardak  Project  clearly  illustrates  the  benefits  that  can  be  achieved 
when  several  agencies  each  work  toward  a  common  end,  much  of  the  success 
achieved  in  Wardak  was  more  a  product  of  coincidence  than  of  premeditated  coor- 
dination on  the  part  of  the  agencies  involved.  In  the  vast  majority  of  cases,  consci- 
entious, institutionalized  coordination  will  be  needed,  as  illustrated  by  the 
following  example: 

In  early  2006,  a  Special  Counselor  on  the  Rule  of  Law  was  appointed  by  the  DOS  to 
coordinate  interagency  rule  of  law  efforts  in  Afghanistan,  to  assure  that  gaps  and 
overlaps  in  such  efforts  were  corrected,  and  to  assist  in  the  development  of  a  broader 
USG  rule  of  law  agenda.  ...  A  committee  of  representatives  from  each  USG  agency 
involved  in  rule  of  law  activities  was  organized  and  was  chaired  by  the  Special 
Counselor  who  was  later  replaced  by  a  senior  lawyer  who  currently  holds  the  title  of 
Rule  of  Law  Coordinator. . . .  Regular  and  frequent  rule  of  law  meetings  have  resulted 
in  much  greater  coordination  of  rule  of  law  efforts  at  the  strategic  level,  the 
development  of  strong  interpersonal  and  cooperative  relationships,  and  a  greater 
awareness  of  each  agency's  rule  of  law  activities  among  and  between  all  participants 
and  the  rule  of  law  [sic]  Coordinator.34 


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Afghanistan  Legal  Lessons  Learned:  Army  Rule  of  Law  Operations 

If  the  Provincial  Justice  Conferences  program,  the  creation  of  the  office  of  Rule 
of  Law  Coordinator  and  the  Wardak  Project  are  indicative  of  the  future  of  inter- 
agency and  international  coordination,  there  is  much  to  be  optimistic  about  con- 
cerning rule  of  law  operations  in  Afghanistan.  The  clear  lesson  learned  is  that  it  is 
only  through  complete  coordination  and  inclusion  of  host-nation  components 
that  all  the  disparate  efforts  to  promote  rule  of  law  within  Afghanistan  can  be 
successful. 

III.  To  Be  Effective,  Military  Rule  of  Law  Operations  Must  Be  Effects-Based 

In  October  2002  after  a  year  of  operations  in  Afghanistan,  Desmond  Saunders- 
Newton  and  Aaron  B.  Frank  wrote  in  a  National  Defense  University  publication 
that 

[t]he  U.S.  military,  under  the  guidance  of  the  Secretary  of  Defense,  is  moving  toward  a 
new  concept  of  military  planning  and  operations  that  is  agile  and  adaptable  to  the 
conflict  at  hand.  .  .  .  The  new  concept  called  effects-based  operations  encompasses 
processes,  tools,  and  organizations  that  focus  planning,  executing,  and  assessing 
military  activities  for  the  effects  produced  rather  than  merely  tallying  the  number  of 
targets  destroyed.35 

The  authors  go  on  to  write  that  what  is  needed  is  not  a  "traditional  force-on- 
force  analysis,"  but  "the  skillful  use  of  force  in  conjunction  with  diplomatic,  eco- 
nomic, legal,  and  other  instruments  of  national  power"36  that  are  characteristic  of 
effects-based  operations. 

This  effects-based  approach  has  been  used  effectively  in  Afghanistan,  particu- 
larly in  rule  of  law  initiatives.37  Because  effects-based  operations  are  "fundamen- 
tally about  linking  end  states  and  objectives  to  tactical  tasks  through  identifying 
and  producing  desired  effects  to  accomplish  missions,"38  it  is  vital  for  JAs  to  focus 
on  the  effect  desired,  rather  than  on  the  project  that  may  or  may  not  accomplish 
this  effect.  This  is  reflected  in  the  Rule  of  Law  Handbook,  which  states: 

[institutional  improvements  can  be  valuable,  but  rule  of  law  projects  should 
ultimately  focus  on  bringing  about  particular  effects,  not  on  the  institutions  that  may 
exist  following  the  completion  of  the  project.  Thus,  it  is  critical  to  keep  in  mind  what 
values  are  represented  by  the  rule  of  law  so  that  those  values,  not  some  intermediate, 
institutionally  focused  objectives,  drive  the  rule  of  law  efforts.39 

To  illustrate  this  point,  consider  the  administrative  functioning  of  a  court  sys- 
tem. In  many  areas  of  Afghanistan,  the  court  system  had  no  administrative 


476 


Eric  Talbot  Jensen  and  Amy  M.  Pomeroy 


structure,  such  as  a  docketing  and  case-tracking  system,  or  method  of  reporting 
and  documenting  case  decisions.  As  JAs  recognize  the  need  to  institutionalize  case 
administration,  they  may  be  tempted  to  try  and  recreate  a  modern  court  system, 
complete  with  computerized  databases  and  transfer  and  recording  capabilities. 
However,  one  of  the  lessons  learned  from  such  efforts  in  Afghanistan  is  that  "it  is 
usually  better  to  favor  low-tech  solutions,  such  as  manual  court  reporting  and  pa- 
per riling  systems."40  More  modern  systems  require  trained  computer  personnel  to 
operate  and  maintain  the  systems.  Even  more  basic,  such  systems  require  continu- 
ous access  to  electricity.  While  these  aspects  of  running  a  court  system  may  not  be 
issues  in  the  United  States,  they  are  significant  constraints  in  Afghanistan  and 
other  similar  situations  where  the  US  Army  operates.  Such  considerations  cause 
the  Rule  of  Law  Handbook  to  conclude,  "[w]hen  it  comes  to  administrative  infra- 
structure, the  clear  lesson  is  that  simplicity  is  key."41 

The  lesson  here  is  that  a  JA  who  is  not  focused  on  effects  may  instead  focus  on 
creating  the  best  administrative  court  system  possible,  using  the  most  modern 
technologies.  However,  if  the  effect  desired  is  a  functioning  administrative  court 
system  that  can  effectively  maintain  itself,  a  concentration  on  low- tech  solutions  is 
much  more  likely  to  succeed. 

While  this  is  a  simplistic  example,  a  similar  analysis  can  be  applied  to  rule  of  law 
operations  generally.  Important  initiatives,  such  as  establishing  a  defense  bar,  en- 
suring a  trained  and  independent  judiciary,  establishing  judicial  oversight  on  po- 
lice activities  and  maintaining  a  penal  system  that  complies  with  fundamental 
human  rights,  all  benefit  from  an  effects-based  approach. 

A  comprehensive  and  effective  effects-based  approach  to  rule  of  law  operations 
has  several  components;  the  first  is  the  completion  of  an  initial  assessment.  Such 
assessments  look  at  the  current  and  prior  situations  and  develop  a  factual  founda- 
tion upon  which  future  actions  can  occur.  These  assessments  are  often  done  in  the 
US  Army  by  civil  affairs  personnel,  but  every  "Judge  Advocate  engaged  in  the  rule 
of  law  mission  must  become  comfortable  with  creating  and  reviewing  assessments 
of  foreign  nations'  legal  systems,  including  courts,  private  organizations,  police, 
and  prisons."42  Such  assessments  should  include  the  history  and  tradition  of  the  lo- 
cal legal  system,  identification  of  which  persons  and  organizations  have  a  role  in 
the  system,  and  what  capabilities  and  needs  currently  exist.43  A  good  assessment 
that  is  continually  updated  will  provide  the  foundation  for  rule  of  law  operations 
that  can  focus  on  and  accomplish  the  desired  rule  of  law  effects. 

A  second  component,  and  one  of  the  most  difficult  aspects  of  effect-based  oper- 
ations, is  determining  measures  of  effectiveness  that  will  accurately  reflect  whether 
the  desired  effects  have  been  achieved.  Metrics,  which  are  quantitative  or  qualita- 
tive systems  of  measurement,  have  become  an  important  part  of  assessing  rule  of 

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Afghanistan  Legal  Lessons  Learned:  Army  Rule  of  Law  Operations 

law  effectiveness.  "Meaningful  metrics  permit  the  Judge  Advocate  ...  to  not  only 
measure  whether  the  mission  is  accomplishing  its  goals,  but  to  also  convey  infor- 
mation to  superiors  and  policy  makers  in  a  quantifiable  manner  that  is  not  purely 
anecdotal."44  An  example  of  a  meaningful  metric  measuring  overall  movement  to- 
ward the  rule  of  law  would  incorporate  individuals'  perceptions  of  whether  (or  to 
what  degree)  the  law  is  superior  to  individuals,  is  applied  by  an  impartial  and  inde- 
pendent body  and  is  applied  consistently  to  all  subjects. 

In  attempting  to  develop  metrics  that  measure  success,  it  is  tempting  to  revert  to 
focusing  on  means  rather  than  effects.  The  Rule  of  Law  Handbook  reminds  us  why 
this  urge  must  be  overcome: 

At  the  sustained  deployment  stage,  merely  focusing  upon  the  number  of  court  houses 
operating,  the  number  of  prison  cells  available,  and  the  number  of  judges  hearing  a 
given  number  of  cases  begins  to  tell  an  increasingly  irrelevant  story.  Now  operations 
are  moving  into  the  higher  realm  of  what  constitutes  establishment  of  the  rule  of  law.  A 
tyrannical  system  despised  by  its  population  can  have  courthouses,  cells,  and  case 
adjudication  statistics  and  yet  the  rule  of  law  does  not  exist.  Once  a  plateau  of  recovery 
is  reached  where  the  facilities  and  personnel  exist  to  operate  the  legal  system,  then  the 
metrics  upon  which  assessments  and  planning  are  built  must  shift  to  analyzing  the 
efficacy  and  legitimacy  of  the  system.45 

The  veracity  of  the  effects-based  approach  is  echoed  in  a  recent  publication  from 
the  Center  for  Army  Lessons  Learned.  Michael  McCoy  writes  that  Provincial  Re- 
construction Teams 

should  design  measures  of  effectiveness  that  delineate  the  perception  of  safety,  the 
reduction  of  security  incidences  that  impact  daily  life,  the  capacity  of  the  government 
to  provide  basic  services  and  rule  of  law,  and  the  popular  acceptance  of  legitimate 
formal  and  informal  organizations  and  leaders  by  both  the  majority  of  the  population 
and  disaffected  elements  of  the  population.46 

Designing  metrics  that  adequately  measure  the  desired  effects  and  provide  use- 
ful input  into  the  way  forward  is  a  difficult  task.  It  is  easy  to  see  why  Samuel  Young, 
writing  concerning  V  Corps  operations,  concludes  that  "[t]he  complexity  of  con- 
ducting non-lethal  Effects  Based  Operations  in  a  Joint,  Interagency,  Intergovern- 
mental, and  Multinational  (JIIM)  environment  challenges  the  mindset,  training, 
and  organization  of  our  warfighting  formations."47 

Despite  some  difficulties,  this  effects-based  approach  has  been  utilized  with  great 
success  in  Afghanistan  by  members  of  the  10th  Mountain  Division  whose  experi- 
ences were  recorded  in  a  recent  Initial  Impressions  Report.  Prior  to  deployment,  the 
division  developed  a  comprehensive  effects-based  plan  to  guide  it  during  its  year  in 

478 


Eric  Talbot  Jensen  and  Amy  M.  Pomeroy 


Afghanistan.  Its  objectives  were  to  improve  security;  support  the  local,  provincial 
and  national  governments;  and  improve  local  and  provincial  infrastructure. 

Beginning  with  their  campaign  plan,  operational  desired  effects  were  identified  as 
"results/conditions"  that[,]  when  achieved,  represent  accomplishing  stated  objectives. 
Desired  effects  were  clearly  articulated  for  each  operational  objective  that  in  turn 
served  as  guides  for  developing  tactical  missions  and  tasks  for  subordinate  units. 
Throughout  all  planning  and  coordination  activities,  the  staff  was  disciplined  to  review 
stated  effects  in  the  campaign  plan  and  then  develop  activities  and  tasks  to  help 
generate  the  stated  desired  effects. 

The  Division's  operations  were  assessment  driven.  Daily,  weekly,  and  monthly 
assessments  of  the  progress  of  operations  helped  determine  what  [Combined  Joint 
Task  Force] -76  was  doing  right  and  what  areas  of  the  plan  needed  adjustment.  These 
assessments  were  focused  on  both  measures  of  performance  of  tasks  and  measures  of 
effectiveness  in  achieving  desired  effects.48 

The  Initial  Impressions  Report  concludes  by  stating  that "  [t]he  Division  is  very 
comfortable  with  using  an  effects-based  approach  to  guide  operations"  and  "[t]he 
10th  [Mountain]  was  clearly  very  successful  during  their  year  in  Afghanistan."49 

Though  reformulating  efforts  to  focus  on  effects  and  finding  meaningful  met- 
rics to  measure  these  effects  may  be  difficult,  it  is  clear  that  the  effects-based  ap- 
proach to  rule  of  law  operations  is  the  most  effective.  The  lesson  learned  for  JAs  is 
that  they  must  adopt  and  internalize  the  effects-based  approach  and  become  fully 
engaged  in  the  metrics  process  of  assessment  and  analysis. 

IV.  Conclusion 

As  is  aptly  illustrated  by  the  Naval  War  College's  dedication  of  a  complete  work- 
shop and  volume  of  the  "Blue  Book"  to  this  topic,  there  are  numerous  lessons  to  be 
learned  from  the  current  military  operations  in  Afghanistan.  For  the  US  Army, 
some  of  the  most  significant  legal  lessons  have  been  in  the  area  of  rule  of  law  opera- 
tions. The  Army  is  still  in  the  process  of  learning  many  of  these  lessons,  but  some 
have  already  been  put  into  practice,  benefitting  operations  in  Iraq.  As  we  continue 
to  apply  what  we  have  learned  by  integrating  the  rule  of  law  into  military  practice, 
cooperating  with  other  agencies  and  measuring  the  success  of  our  operations  by 
their  effects,  future  rule  of  law  efforts  will  better  serve  the  US  strategic  national 
interest. 


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Afghanistan  Legal  Lessons  Learned:  Army  Rule  of  Law  Operations 


Notes 

1.  The  White  House,  National  Security  Strategy  of  the  United  States  3, 9-10, 17, 19, 22,  28 
(Sept.  2002),  available  at  http://www.acq.osd.mil/ncbdp/nm/docs/Relevant%20Docs/national 
_security_strategy.pdf. 

2.  National  Security  Presidential  Directive/NSPD-44  (2005),  available  at  http://www.fas.org/ 
irp/offdocs/nspd/nspd-44.html. 

3.  Center  for  Army  Lessons  Learned,  Division  Commanders  Guide  to  Information  Opera- 
tion in  OIF  &  OEF  Handbook  (Dec.  2007),  available  at  https://callsearch.leavenworth.army.mil/ 
CALL2Search/isysquery/9e25b547-35fc-469d-8aaf-84ad401c78cl/19/doc/  (available  to  current 
DoD  employees  and  their  contractors  through  approved  website  access). 

4.  Center  for  Law  and  Military  Operations,  The  Judge  Advocate  General's 
Legal  Center  School  and  Joint  Force  Judge  Advocate,  United  States  Joint  Forces 
Command,  Rule  of  Law  Handbook:  A  Practitioner's  Guide  for  Judge  Advocates  i 

(2007)  [hereinafter  RULE  OF  LAW  HANDBOOK]. 

5.  Id.  The  UN  Security  Council's  definition  is  a  good  starting  point  and  comports  with 
most  definitions  of  the  rule  of  law:  ( 1 )  The  law  is  supreme,  (2)  the  law  is  applied  by  an  independ- 
ent institution  (such  as  a  judicial  branch)  and  (3)  the  law  applies  equally  to  all  subjects  of  the  law. 
See  Federal  Ministry  for  European  and  International  Affairs  (Austria)  &  Institute 
for  International  Law  and  Justice,  New  York  University  School  of  Law,  The  U.N. 
Security  Council  and  the  Rule  of  Law:  The  Role  of  the  Security  Council  in 
Strengthening  a  Rules-Based  International  System  3-4  (2008). 

6.  R  (Al-Jedda)  v.  Secretary  of  State  for  Defence,  [2007]  UKHL  58  (House  of  Lords  2007). 

7.  Behrami  v.  France  and  Saramati  v.  France,  Germany  and  Norway,  apps.  nos.  71412/01 
and  78166/01,  45  Eur.  Ct.  H.R.  41  (2007)  (Grand  Chamber). 

8.  Amnesty  International  Canada  v.  Canada  (Attorney  General),  2008  FC  336  (2008). 

9.  S.C.  Res.  1806,  U.N.  Doc.  S/RES/1806  (Mar.  20, 2008);  S.C.  Res.  1662,  U.N.  Doc.  S/RES/ 
1662  (Mar.  23,  2006);  S.C.  Res.  1746,  U.N.  Doc.  S/RES/1746  (Mar.  23,  2007);  S.C.  Res.  1802, 
U.N.  Doc.  S/RES/1802  (Feb.  25,  2008). 

10.  Rule  of  Law  Handbook,  supra  note  4,  at  i. 

11.  Chairman  of  the  Joint  Chiefs  of  Staff,  Joint  Publication  3-0,  Doctrine  for  Joint  Opera- 
tions, at  V-l  (Sept.  2006,  with  change  1,  Feb.  13, 2008),  available  at  http://www.dtic.mil/doctrine/ 
jel/new_pubs/jp3_0.pdf  [hereinafter  Joint  Pub.  3-0]. 

12.  Department  of  Defense,  Directive  3000.05,  Military  Support  for  Stability,  Security, 
Transition,  and  Reconstruction  (SSTR)  Operations  para.  4. 1  (Nov.  28, 2005),  available  at  http:// 
www.dtic.mil/whs/directives/corres/pdf/300005p.pdf  [hereinafter  DoD  Directive  3000.05].  See 
also  Joint  Pub.  3-0,  supra  note  1 1,  at  V-l,  which  defines  stability  operations  as  "missions,  tasks, 
and  activities  [that]  seek  to  maintain  or  reestablish  a  safe  and  secure  environment  and  provide 
essential  governmental  services,  emergency  infrastructure  reconstruction,  or  humanitarian 
relief." 

13.  Joint  Pub.  3-0,  supra  note  11,  at  IV-29. 

14.  MatIV-30. 

15.  Rule  of  Law  Handbook,  supra  note  4,  at  8. 

16.  Id.  at  16. 

17.  Center  for  Army  Lessons  Learned,  Southern  Afghanistan  COIN  Operations  24  (2006), 
available  at  https://callsearch.leavenworth.army.mil/CALL2Search/isysquery/9e25b547-35fc 
-469d-8aaf-84ad401c78cl/35/doc/  (available  to  current  DoD  employees  and  their  contractors 
through  approved  website  access). 

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Eric  Talbot  Jensen  and  Amy  M.  Pomeroy 


18.  Rule  of  Law  Handbook,  supra  note  4,  at  1 12. 

19.  Id.  at  51  (footnote  omitted). 

20.  M.  Ashraf  Haidari,  Paris  Conference:  Aid  Effectiveness  Key  to  Addressing  Afghanistan's 
Rebuilding  Challenges  (June  12,  2008),  EURASIANET,  http://www.eurasianet.org/departments/ 
insight/articles/eav06 1 208f.shtml. 

21.  One  of  the  three  focuses  of  Provincial  Reconstruction  Teams  is  to  "[ijncrease  provin- 
cial stability  through  international  military  presence  and  assist  in  developing  nascent  host  na- 
tion security  and  rule  of  law  capacity."  Michael  McCoy,  Center  for  Army  Lessons  Learned, 
Provincial  Reconstruction  Team  Playbook  (Sept.  2007),  available  at  https://callsearch 
.leavenworth.army.mil/CALL2Search/isysquery/9e25b547-35fc-469d-8aaf-84ad401c78cl/13/doc/ 
(available  to  current  DoD  employees  and  their  contractors  through  approved  website  access) 
[hereinafter  PRT  Handbook]. 

22.  For  example,  DoD  Directive  3000.05,  supra  note  12,  para.  4.4  states: 

Integrated  civilian  and  military  efforts  are  key  to  successful  stability  operations. 
Whether  conducting  or  supporting  stability  operations,  the  Department  of  Defense 
shall  be  prepared  to  work  closely  with  relevant  U.S.  Departments  and  Agencies,  foreign 
governments  and  security  forces,  global  and  regional  international  organizations,  U.S. 
and  foreign  non-governmental  organizations,  and  private  sector  individuals  and  for- 
profit  companies. 

23.  National  Security  Presidential  Directive/NSPD-44,  supra  note  2,  para.  3. 

24.  Id.,  para.  4. 

25.  US  Department  of  State,  Office  of  the  Coordinator  for  Reconstruction  and  Stabilization, 
http://www.state.gOv/s/crs/  (last  visited  Feb.  18, 2008). 

26.  US  Department  of  State,  About  S/CRS,  http://www.state.gOv/s/crs/c  1 2936.htm  (last  vis- 
ited Feb.  18,2009). 

27.  RULE  OF  LAW  HANDBOOK,  supra  note  4,  at  56  (footnote  omitted). 

28.  DoD  Directive  3000.05,  supra  note  12,  para.  4.3. 

29.  Center  for  Army  Lessons  Learned,  Leader  Challenges  -  OEF  and  OIF  (Dec.  2005),  avail- 
able at  ht1ps://callsearch.leavenworth.army.mil/CALL2Search/isysquery/9e25b547-35fc-469d-8aaf 
-84ad401c78cl/33/doc/  (available  to  current  DoD  employees  and  their  contractors  through  ap- 
proved website  access). 

30.  DoD  Directive  3000.05,  supra  note  12,  para.  4.3. 

3 1 .  RULE  OF  LAW  HANDBOOK,  supra  note  4,  at  ii. 

32.  Id. 

33.  Id.  at  54-55  (footnote  omitted). 

34.  Id.  at  52-53  (footnote  omitted). 

35.  Desmond  Saunders-Newton  8c  Aaron  B.  Frank,  Effects-Based  Operations:  Building  the 
Analytic  Tools,  DEFENSE  HORIZONS,  Oct.  2002,  at  1,  http://www.ndu.edu/inss/DefHor/DH19/ 
193-619_DH19.pdf. 

36.  Id.  at  2. 

37.  Center  for  Army  Lessons  Learned,  A  Special  Study  on  Effects-Based  Approach  to 
Military  Operations  (May  2005),  available  at  https://callsearch.leavenworth.army.mil/ 
CALL2Search/  isysquery/263df3d8-ca0e-41c9-9d43-0ef4907e39bc/23/doc/  (available  to  current 
DoD  employees  and  their  contractors  through  approved  website  access). 

38.  Id. 

39.  RULE  OF  LAW  HANDBOOK,  supra  note  4,  at  19  (footnote  omitted). 

40.  Id.  at  75. 

41.  Id. 


481 


Afghanistan  Legal  Lessons  Learned:  Army  Rule  of  Law  Operations 

42.  Mat  121. 

43.  Id.  at  121-34. 

44.  Id.  at  134. 

45.  Id.  at  137. 

46.  PRT  Handbook,  supra  note  21. 

47.  Samuel  R.  Young,  Center  for  Army  Lessons  Learned,  V  Corps  as  Multi-National  Corps  - 
Iraq  (June  2007),  available  at  https://callsearch.leavenworth.army.mil/CALL2Search/isysquery/ 
263df3d8-ca0e-41c9-9d43-0ef4907e39bc/18/doc/  (available  to  current  DoD  employees  and 
their  contractors  through  approved  website  access). 

48.  Mike  Stark,  Initial  Impressions  Report  (IIR)  -  10th  Mountain  Division  -  Observations  of 
a  Modular  Force  Division  Operating  as  a  CJTF  in  OEF,  1.3  (2007),  available  at  https:// 
callsearch.leavenworth.army.mil/call2-search/isysquery/556986ea-00d2-4eb4-a5b6 
-4c739a45695d/l/doc/  (available  to  current  DoD  employees  and  their  contractors  through 
approved  website  access). 

49.  Id. 


482 


PART  VI 


HUMAN  RIGHTS  ISSUES 


XIX 


Is  Human  Rights  Law  of  Any  Relevance  to 
Military  Operations  in  Afghanistan? 

Fran^oise  J.  Hampson* 

/.  Introduction 

Newspaper  reports  in  Western  Europe  and  the  publications  of  reputable  hu- 
man rights  groups,  such  as  Human  Rights  Watch  and  Amnesty  Interna- 
tional, give  the  impression  that  innocent  villagers  are  being  indiscriminately  killed 
by  coalition  forces  in  Afghanistan.1  News  reports  also  suggest  that  Afghans  com- 
plain of  the  lack  of  physical  security  and  of  very  slow  progress  in  the  development 
of  physical  and  social  infrastructure.  The  issue  is  not,  in  this  context,  whether  such 
claims  are  well  founded.  The  perception  of  the  Afghans  and  of  the  human  rights 
groups  is  that  civilians  are  being  killed  unnecessarily  and,  by  implication,  unlaw- 
fully. The  forces  involved  claim  to  be  showing  the  most  rigorous  adherence  to  the 
requirements  of  the  law  of  armed  conflict.2  Part  of  the  explanation  for  the  gap  in 
perceptions  may  be  that  the  Afghans  and  the  human  rights  groups  are  thinking  in 
terms  of  respect  for  human  rights  law,  in  the  context  of  a  law  and  order  paradigm, 
whereas  the  military  forces  are  thinking  exclusively  in  terms  of  the  law  of  armed 
conflict.  This  raises  the  question  of  the  relevance  of  human  rights  law  to  the  con- 
duct of  military  operations  in  Afghanistan,  the  subject  of  this  article. 

Before  embarking  on  an  analysis  of  the  principal  questions  at  issue,  it  is  neces- 
sary to  make  a  number  of  preliminary  points.  The  first  is  that  it  will  be  assumed  that 
two,  legally  significantly  different  operations  are  being  conducted  in  Afghanistan. 


*  Professor,  Department  of  Law  &  Human  Rights  Centre,  University  of  Essex,  UK. 


Is  Human  Rights  Law  of  Any  Relevance  to  Military  Operations  in  Afghanistan? 

One  is  the  International  Security  Assistance  Force  (ISAF)  operation,  which  has  a 
Security  Council  mandate  and  is  there  to  assist  the  government  of  Afghanistan.3  It 
is  said  to  be  dealing  with  an  insurgency,  led  by  the  Taliban,  and  to  be  governed  by 
the  rules  applicable  in  non-international  armed  conflict.  The  second  is  Operation 
Enduring  Freedom,  which  is  said  to  be  a  continuation  of  the  conflict  which  started 
in  2001  between  an  ad  hoc  coalition,  working  with  the  Northern  Alliance,  and  the 
Taliban  and  Al  Qaeda  forces.  This  conflict  is  said  to  be  international  in  nature.  This 
characterization  of  the  conflict(s)  is  not  without  controversy  but  will  not  be  further 
explored  here. 

The  second  preliminary  point  concerns  the  nature  of  human  rights  law.  Lawyers 
with  certain  armed  forces  shy  away  from  anything  to  do  with  human  rights  law 
and,  by  extension,  with  human  rights  more  generally,  perhaps  at  least  in  part  owing 
to  fear  of  the  unknown.4  They  claim  that  it  has  nothing  to  do  with  them  and  their 
operations,  a  claim  that,  in  such  broad  terms,  is  patently  untrue.  This  article  cannot 
hope  to  provide  a  general  introduction  to  human  rights  law;  for  that,  readers  need 
to  seek  elsewhere.5  It  is,  nevertheless,  necessary  to  highlight  certain  features  of  this 
body  of  rules.  First,  there  is  a  difference  between  human  rights  law  and  human 
rights.  The  former  refers  to  legal  obligations  of  States.  The  focus  will  be  principally 
on  treaty  law,  which  is  of  course  subject  to  ratification.  The  main  emphasis  will  be 
on  the  international  treaties,  notably  the  International  Covenant  on  Civil  and  Po- 
litical Rights,  with  only  occasional  reference  to  the  regional  treaties.  It  should  not 
be  forgotten,  however,  that  there  are  human  rights  mechanisms  that,  ultimately, 
owe  their  existence  to  the  UN  Charter.6  All  States  are  subject  to  their  scrutiny.  The 
norms,  respect  for  which  they  monitor,  are  either  part  of  customary  human  rights 
law  or  part  of  Charter  law.  Human  rights  more  generally  refers  to  values  and  pre- 
cepts that  may  (or  should)  be  the  basis  of  policy  decisions,  such  as  the  rule  of  law, 
democracy,  participation,  transparency  and  accountability.  Human  rights  in  this 
sense  is  part  of  the  "good  governance"  agenda. 

Second,  human  rights  law  is  civil  in  character,  like  any  other  area  of  public  inter- 
national law.  States  found  to  have  violated  human  rights  law  may  be  required  to 
amend  their  law  and  to  make  restitution.  The  failure  to  investigate  an  alleged  human 
rights  violation  and,  where  appropriate,  to  institute  domestic  criminal  proceedings 
may  be  a  violation  of  human  rights  law  but  the  enforcement  of  that  body  of  law  at 
the  regional  or  international  level  does  not  involve  criminal  proceedings.7  The  in- 
dividual perpetrator  is  not  the  human  rights  violator.  The  State  which  is  responsi- 
ble for  the  non-investigation  will  be  held  responsible  under  human  rights  law.  This 
points  to  a  significant  difference  between  human  rights  law  and  the  law  of  armed 
conflict.  The  former  only  binds  the  State.  Human  rights  law  is  not  based  on  the 
bond  of  citizenship.  The  rights  are  said  to  be  inherent  in  every  human  being.  This 

486 


Fran$oise  J.  Hampson 


means  that  they  do  not  need  to  be  earned  and  are  not  dependent  upon  good  behav- 
ior. Human  rights  law  is  about  the  relationship  between  those  who  exercise  au- 
thority and  those  subjected  to  its  exercise.  It  applies  to  anyone  subject  to  the  exercise 
of  such  authority  or  jurisdiction,  a  concept  that  will  be  examined  further  below. 

Third,  human  rights  law  contains  both  positive  and  negative  obligations.  Not 
only  is  there  the  negative  obligation,  for  example,  not  to  torture.  Only  State  agents 
can  trigger  responsibility  for  breach  of  the  negative  obligation.  There  is  also  a  posi- 
tive obligation  to  protect  persons  from  torture,  both  at  the  hands  of  State  agents 
and  third  parties.  This  is  generally  satisfied  by  having  a  properly  functioning  legal 
system  that  penalizes  the  behavior  in  question  and  an  effective  system  of  investiga- 
tion and  prosecution  that  ensures  that  wrongdoers  are  punished.8  In  some  circum- 
stances, it  may  require  more  than  that  in  the  way  of  protection.9 

The  fourth  element  represents  a  sweeping  generalization.  Provided  that  caveat 
is  not  forgotten,  the  claim  may  still  offer  useful  insights.  Human  rights  law,  at  least 
as  enforced  by  regional  human  rights  courts,  is  designed  principally  to  be  applied 
after  the  event.  It  provides  general  principles  which  enable  a  judge  to  determine  in 
a  precise  set  of  circumstances  whether  a  rule  has  been  violated.  It  is  capable  of  con- 
siderable fine-tuning,  particularly  with  the  development  over  time  of  fairly  consis- 
tent case  law.  What  permits  such  fine-tuning  is  the  use  of  limitation  clauses,  which 
are  an  intrinsic  part  of  the  elaboration  of  many  rights.  For  example,  there  is  no  ab- 
solute right  of  freedom  of  expression.  Rather,  the  starting  point  is  that  such  a  right 
exists  but  it  can  be  subject  to  restrictions  imposed  by  law  and  based  on  one  or  more 
generally  defined  grounds,  on  condition  that  the  limitation  is  both  necessary  and 
proportionate.10  In  the  case  of  negative  obligations,  responsibility  often  appears  to 
be  based  on  the  result.  One  exception  is  responsibility  for  unlawful  killings,  where 
what  the  reasonable  perpetrator  thought  would  obviously  be  relevant.  In  contrast, 
the  law  of  armed  conflict  is  designed  to  provide  guidance  to  armed  forces  at  the 
time  decisions  are  made  and  actions  undertaken.  The  emphasis  in  criminal  pro- 
ceedings on  what  was  known  at  the  time  should  avoid  the  danger  that  determina- 
tions of  responsibility  after  the  event  will  be  based  on  the  twenty- twenty  vision  of 
hindsight.11  The  fine-tuning  occurs  in  the  mind  of  the  commander,  rather  than 
that  of  the  judge. 

The  fifth  issue  is  that  the  starting  point  of  human  rights  law  is  the  protected  inter- 
est or  right.  Any  limitations  or  exceptions  have  to  be  interpreted  restrictively.  In  the 
case  of  the  law  of  armed  conflict,  the  law  itself  represents  a  balance.  One  side  of  that 
balance  should  not  be  interpreted  restrictively  in  relation  to  the  other.  This  is  a  possi- 
ble explanation  for  the  way  in  which  certain  human  rights  groups,  on  occasion,  ap- 
pear to  interpret  the  law  of  armed  conflict;  they  are  treating  the  protection  of 
civilians,  for  example,  as  the  starting  point  and  any  restrictions  as  an  exception. 

487 


Is  Human  Rights  Law  of  Any  Relevance  to  Military  Operations  in  Afghanistan? 

This  article  will  consider  five  issues:  first,  whether  human  rights  law  remains  ap- 
plicable when  the  law  of  armed  conflict  is  applicable;12  second,  whether  human 
rights  obligations  apply  extraterritorially;  third,  the  impact  of  the  territorial  State's 
human  rights  obligations  for  other  States  assisting  it;  fourth,  the  effect  of  a  Security 
Council  mandate  on  legal  obligations  that  would  otherwise  be  applicable;  and,  fi- 
nally, whether  human  rights  notions  could  offer  useful  guidance  to  armed  forces, 
whether  or  not  human  rights  law  is  applicable  dejure. 

It  is  clear  that  the  interplay  between  human  rights  law  and  the  law  of  armed  con- 
flict is  currently  a  source  of  confusion  and  the  subject  of  debate.  There  are  plausible 
explanations  for  how  we  have  come  to  find  ourselves  in  this  muddle.  The  law  of 
armed  conflict,  historically,  regulated  inter-State  conflicts  and  civil  wars  of  such  in- 
tensity that  they  resembled  inter-State  conflicts.  In  view  of  the  impact  of  the  latter 
on,  for  example,  trade  and  ports,  third  States  had  to  recognize  belligerency  to  pro- 
tect their  rights  as  neutrals.13  In  1949,  there  was  the  first  attempt  in  treaty  law  to 
regulate  every  type  of  internal  conflict,  provided  that  it  constituted  an  armed  con- 
flict and  not  merely  isolated  and  sporadic  acts  of  violence.14  Traditionally,  such 
conflicts  had  been  purely  the  province  of  domestic  law,  including  constitutional 
law,  criminal  law  and  civil  liberties.  Domestic  law  determined  the  circumstances  in 
which  an  emergency  could  be  declared.  It  also  dealt  with  the  consequences  of  such 
an  emergency,  including  civil  liberties  safeguards  which  could  not  be  suspended. 
In  other  words,  Common  Article  3  of  the  Geneva  Conventions15  made  inroads, 
albeit  very  minimal  ones,  in  the  relationship  between  the  individual  and  the 
State.16  At  about  the  same  time,  domestic  civil  liberties  rules  surfaced  on  the  inter- 
national plane  as  human  rights  law.17  The  shift  from  domestic  to  international  law 
owed  much  to  the  desire  to  prevent  what  was  perceived  to  have  contributed  to  the 
causes  of  the  Second  World  War  and  to  the  appalling  conduct  of  those  exercising 
governmental  authority  during  the  course  of  the  war,  in  both  national  and  occu- 
pied territory.  The  respect  for  human  rights  was  seen  as  a  way  of  ensuring  that  peo- 
ple did  not  "have  recourse,  as  a  last  resort,  to  rebellion  against  tyranny  and 
oppression."18  It  was  necessary  to  reinforce  domestic  provisions,  designed  to  pre- 
vent the  misuse  of  authority  but  which  could  be  subverted,  with  international 
guarantees.  The  regional  and  international  enforcement  of  human  rights  law  is  not 
an  end  in  itself.  It  is  designed  to  persuade  a  State  to  adopt  the  necessary  measures  at 
the  domestic  level. 

It  was  recognized  that  States  might  well  have  to  deal  with  emergencies,  in  which 
certain  rights  might  be  subject  to  unusual  restrictions,  but  it  was  made  clear  that, 
even  in  such  circumstances,  certain  guarantees  had  to  be  maintained.  In  other 
words,  the  very  raison  d'etre  for  the  international  spine-stiffening  of  domestic  civil 
liberties  rules  was  the  risk  of  abuse  and  misuse  of  governmental  authority  in 

488 


Francoise  J.  Hampson 


emergencies  or  periods  of  conflict.  The  law  sought  to  prevent  the  situation  from 
deteriorating  to  that  level  but,  if  it  did  so,  the  law  sought  to  ensure  that  things  did 
not  get  even  worse.  From  the  outset  then,  one  could  have  predicted  overlap  be- 
tween the  new  inroads  made  by  the  law  of  armed  conflict  into  internal  conflicts  and 
the  internationalization  of  domestic  constitutional  and  civil  liberties  guarantees. 
Superficially,  there  may  be  an  obvious  solution  for  those  who  seek  to  keep  the  law 
of  armed  conflict  and  human  rights  law  separate,  rather  than  to  seek  an  accommo- 
dation between  the  two  bodies  of  rules.  It  would  involve  eliminating  all  law  of 
armed  conflict  rules  applicable  in  non-international  armed  conflict,  other  than 
perhaps  those  non-international  conflicts  which  resemble  international  armed 
conflicts.  Human  rights  law  would  be  the  only  body  of  rules  regulating  affairs 
within  a  State,  including  armed  conflict.  Quite  apart  from  the  problem  of  eliminat- 
ing a  widely  accepted  body  of  rules19  and  the  question  of  the  desirability  of  doing 
so,  it  is  difficult  to  see  how  such  a  rigid  distinction  could  be  made.  What  would 
happen  to  those  rules  applicable  within  a  State's  own  territory  during  international 
armed  conflict?20  Would  States  be  willing  to  assist  other  States  dealing  with  an  insur- 
gency, if  they  were  subject  to  human  rights  law,  without  any  law  of  armed  conflict- 
inspired  modification?21 

Where  we  are  at  present  may  appear  chaotic  and  confused  but  the  only  solution 
is  to  find  a  way  forward,  not  back.  The  first  step  is  to  seek  to  clarify  the  relationship 
between  the  two  bodies  of  rules. 

II.  Whether  Human  Rights  Law  Remains  Applicable  When  the 
Law  of  Armed  Conflict  Is  Applicable 

Before  addressing  the  principal  question,  it  is  again  necessary  to  make  two  prelimi- 
nary points.  First,  as  any  legal  system  develops,  it  has  to  address  the  question  of  the 
boundary  between  two  sets  of  rules.  An  obvious  example  in  the  context  of  domestic 
law  is  the  boundary  between  contract  law  and  tort.  Where  a  party  to  a  contract  dis- 
charges his  obligation  negligently,  occasioning  loss  to  the  other  party,  should  the 
claim  be  brought  for  breach  of  contract  or  for  negligence?  There  is  no  question  of 
arbitrarily  restricting  either  body  of  rules.  It  is  a  matter  of  finding  a  suitable  accom- 
modation. The  same  issue  has  already  arisen  and  been  dealt  with  in  international 
law.  The  law  of  the  sea,  for  example,  has  had  to  find  a  way  to  accommodate  the  free 
passage  rights  of  warships,  including  submarines,  and  the  need  of  the  coastal  State  to 
regulate  and  protect  a  range  of  interests  and  activities  in  the  territorial  sea,  contigu- 
ous zone  and  exclusive  economic  zone.22  In  other  words,  there  is  nothing  new  or 
unique  in  the  potential  overlap  of  the  law  of  armed  conflict  and  human  rights  law. 


489 


Is  Human  Rights  Law  of  Any  Relevance  to  Military  Operations  in  Afghanistan? 

The  second  point  is  that  the  relationship  between  the  two  bodies  of  rules  is  a 
general  question,  rather  than  one  relating  to  particular  rules.  It  has  never  been  sug- 
gested, for  example,  that  one  answer  could  be  given  for  rules  of  international 
armed  conflict  and  another  for  rules  of  non-international  armed  conflict.  Either 
the  applicability  of  the  law  of  armed  conflict  has  the  effect  of  "turning  off'  the  ap- 
plicability of  human  rights  law  or  it  does  not.  This  is  a  further  reason  why  the  solu- 
tion discussed  at  the  end  of  the  introduction  is,  in  fact,  no  solution. 

Three  separate  questions  need  to  be  distinguished.  The  first  is  whether  human 
rights  law  remains  applicable  at  all  when  the  law  of  armed  conflict  is  applicable.  If 
that  is  answered  in  the  affirmative,  two  further,  related  questions  become  relevant. 
First,  to  what  extent  is  human  rights  law  applicable  and,  second,  how,  if  at  all,  are 
the  relevant  human  rights  norms  affected  by  the  applicability  of  the  law  of  armed 
conflict? 

A.  Whether  Human  Rights  Law  Is  Applicable  at  All 

There  is  overwhelming  evidence  that  human  rights  law  does  remain  applicable 
when  the  law  of  armed  conflict  is  applicable.  This  is  to  be  found  in  treaty  law,  par- 
ticularly those  treaties  dealing  with  civil  and  political  rights.  The  derogation 
clauses23  provide  that  certain  rights  remain  applicable  even  during  "war  or  other 
public  emergency."24  Such  situations  clearly  include  ones  in  which  the  law  of 
armed  conflict  will  also  be  applicable.  A  large  majority  of  States  are  bound  by  one 
or  more  of  such  treaties.25  State  practice  confirms  this  initial  impression.  As  far  as 
political  organs  are  concerned,  the  General  Assembly,  the  Security  Council  and  the 
Human  Rights  Council  (and  its  predecessor,  the  UN  Commission  on  Human 
Rights)  have  passed  both  subject  and  situation-specific  resolutions  in  which  refer- 
ence is  made  to  both  human  rights  law  and  the  law  of  armed  conflict.26  In  the  case 
of  judicial  and  quasi-judicial  organs,  the  International  Court  of  Justice  (ICJ)  stated 
clearly  that  human  rights  law  remains  applicable  in  all  circumstances,  subject  only  to 
derogation.27  The  principal  human  rights  treaty  monitoring  body  at  the  interna- 
tional level,  the  Human  Rights  Committee,  in  its  general  comment  on  states  of  emer- 
gency,28 in  its  concluding  observations  on  State  reports29  and  in  determinations  in 
individual  cases,  has  equally  made  it  clear  that  human  rights  law  is  not  displaced  by 
the  applicability  of  the  law  of  armed  conflict.30  The  most  relevant,  in  this  context,  of 
the  Special  Procedures  have  also  expressed  concerns  framed  in  terms  of  human 
rights  law  in  situations  in  which  the  law  of  armed  conflict  was  applicable.31  At  the  re- 
gional level,  the  Inter-American  Commission  on  Human  Rights  and  the  Inter- 
American  Court  of  Human  Rights,  the  former  European  Commission  of  Human 
Rights  and  the  former  and  present  European  Court  of  Human  Rights,  and  the  African 


490 


Francoise  J.  Hampson 


Commission  on  Human  and  Peoples'  Rights  have  also  applied  human  rights  law  in 
circumstances  in  which  the  law  of  armed  conflict  was  clearly  applicable. 

The  only  currently  dissenting  view  is  that  of  two  States:  Israel  and  the  United 
States.  Israel  appears  never  to  have  disputed  the  applicability  of  the  International 
Covenant  on  Civil  and  Political  Rights  in  Israel  itself,  even  though,  as  a  party  to  ac- 
tual and/or  arguable  armed  conflicts,  it  has  rights  and  obligations  under  the  law  of 
armed  conflict  which  have  an  impact  within  Israel.32  Its  objection  has  focused  on 
the  applicability  of  human  rights  law  in  occupied  territory,  which  involves  both  the 
relationship  with  the  law  of  armed  conflict  and  the  question  of  the  extraterritorial 
applicability  of  human  rights  law.33  Since  the  overwhelming  weight  of  evidence 
suggests  that  the  applicability  of  the  law  of  armed  conflict  does  not  displace  that  of 
human  rights  law,  the  question  then  becomes  whether  Israel  and  the  United  States 
can  claim  to  be  persistent  objectors.  The  first  difficulty  for  the  United  States  is  that, 
at  the  time  of  its  ratification  of  the  International  Covenant  on  Civil  and  Political 
Rights,  the  approach  of  the  Human  Rights  Committee  was  already  clear.  The  fail- 
ure of  the  United  States  to  enter  a  reservation  or  interpretative  declaration  on  this 
specific  question  calls  into  question  the  persistence  of  any  alleged  objection.34  A 
similar  argument  could  be  made  in  relation  to  Israel,  which  ratified  the  Interna- 
tional Covenant  only  eight  months  earlier,  on  October  3,  1991.  First,  in  assessing 
such  a  possible  claim,  it  should  be  noted  that  the  relevant  treaty  language  is  unam- 
biguous. Presumably,  the  clearer  the  rule,  the  more  is  expected  of  a  would-be  per- 
sistent objector.  Second,  it  is  not  clear  whether  the  persistent- objector  principle 
applies  to  every  type  of  rule  of  international  law.  The  rule  at  issue  here  is  about  the 
relationship  between  the  two  bodies  of  rules,  rather  than  a  rule  of  conduct.  It  is  not 
clear  whether  that  makes  a  difference.  The  third  difficulty  is  more  fundamental.  In 
the  principal  ICJ  decision  addressing  the  persistent-objector  principle,  the  Anglo- 
Norwegian  Fisheries  Jurisdiction  Case,  it  was  not  the  persistence  of  Norway's  objec- 
tions that  was  decisive  but  the  acceptance  of  or  acquiescence  in  those  objections  by 
the  United  Kingdom.35  Whose  acceptance  of  an  objection  is  required  under  human 
rights  law?  In  particular,  how  important  is  the  lack  of  acceptance  by  a  treaty  moni- 
toring body,  as  opposed  to  other  High  Contracting  Parties?  Human  rights  treaties 
are  particular,  but  not  unique,  in  creating  "objective"  obligations.36  They  are  not 
simply  reciprocal  inter-State  undertakings.  Does  this  imply  that  States  have  dele- 
gated the  power  to  accept  or  reject  alleged  persistent  objection  to  the  treaty  moni- 
toring body?  Even  if  that  is  not  the  case,  is  the  silence  of  other  High  Contracting 
Parties  evidence  of  acceptance,  in  the  face  of  the  opposition  of  the  treaty  monitor- 
ing body?  This  is  not  the  only  area  where  the  rules  of  international  law  have  failed 
to  keep  pace  with  the  development  of  new  types  of  international  machinery.37 


491 


Is  Human  Rights  Law  of  Any  Relevance  to  Military  Operations  in  Afghanistan? 

It  seems  clear  that  human  rights  law  remains  applicable  even  when  the  law  of 
armed  conflict  is  applicable  and  it  seems  doubtful  that  Israel  and  the  United  States 
can  avoid  that  conclusion  by  seeking  to  rely  on  the  persistent-objector  principle. 

B.  To  What  Extent  Is  Human  Rights  Law  Applicable  When  the  Law  of  Armed 
Conflict  Is  Applicable? 

The  General  Assembly  and  the  Security  Council  have  not  addressed  this  specific  is- 
sue. Since  their  resolutions  confirm  that  both  human  rights  law  and  the  law  of 
armed  conflict  may  be  simultaneously  applicable  but  do  not  explain  the  extent  to 
which  the  former  is  applicable,  they  should  probably  be  interpreted  as  saying  "to 
the  extent  that"  human  rights  law  is  applicable. 

The  ICJ  has  been  much  more  specific.  In  the  Advisory  Opinion  The  Legal  Conse- 
quences of  the  Construction  of  a  Wall  in  the  Occupied  Palestinian  Territory,  the  Court 
stated  that  human  rights  law  remains  applicable  subject  only  to  derogation.38  It 
then  applied  its  statement  in  a  contentious  case,  Armed  Activities  on  the  Territory  of 
the  Congo,39  where  it  found  violations  of  both  the  law  of  armed  conflict  (Article  51 
of  Additional  Protocol  I)  and  Article  6  of  the  International  Covenant  on  Civil  and 
Political  Rights  (prohibition  of  arbitrary  killings)  on  the  basis  of  the  same  facts.  The 
facts  found  were  stark  and  involved  a  non-derogable  right.  The  case  therefore 
sheds  little  light  on  the  extent  to  which  human  rights  law  was  applicable. 

On  the  basis  of  the  ICJ  statement  in  the  Advisory  Opinion,  all  non-derogable 
rights  remain  applicable  in  the  usual  way.  It  also  implies  that  if  a  State  has  not  cho- 
sen to  derogate,  the  full  range  of  human  rights  obligations  will  be  applicable.  At  this 
point  it  is  necessary  to  explain  briefly  what  is  meant  by  derogation  under  human 
rights  law. 

Some,  but  not  all,  human  rights  treaties  provide  a  facility  for  States.  In  situa- 
tions of  public  emergency  threatening  the  life  of  the  nation,  they  may  modify 
some,  but  not  all,  of  their  human  rights  obligations  but  any  such  modification  has 
to  be  both  necessary  and  proportionate.  States  are  free  not  to  derogate,  even  in  a 
situation  in  which  they  would  be  legally  entitled  to  do  so.  There  is  a  range  of  rea- 
sons why  a  State  might  fail  to  derogate.  The  first  is  that  lawyers  in  the  relevant  gov- 
ernment department  may  simply  not  think  of  it.  This  could  either  be  the  product 
of  negligence  or  incompetence  on  the  part  of  the  relevant  governmental  authori- 
ties or  they  may  not  take  their  international  law,  or  at  least  their  human  rights  law, 
obligations  sufficiently  seriously  to  conform  to  the  procedural  requirements.  An- 
other possible  explanation  could  be  that  the  State  does  not  wish  to  signal  the  exis- 
tence of  an  emergency  on  its  territory.  While  this  is  thought  to  be  a  common 
explanation  for  the  unwillingness  of  States  to  acknowledge  the  applicability  of 
Common  Article  3  of  the  Geneva  Conventions,  this  appears  less  convincing  as  an 

492 


Fran$oise  J.  Hampson 


explanation  for  non-derogation.  If  a  State  wishes  to  take  measures  not  normally 
permitted  under  human  rights  law,  it  is  required  to  derogate.  It  is  clear  that  a  pub- 
lic emergency  does  not  dejure  trigger  the  modified  applicability  of  human  rights 
law.  This  is  in  contrast  to  the  law  of  armed  conflict,  which  is  applicable  by  virtue  of 
the  facts  and  whether  or  not  the  State (s)  in  question  concede(s)  its  applicability.  It 
is  therefore  easy  to  envisage  a  situation  in  which  a  State  has  not  derogated,  and  in 
which  the  full  range  of  human  rights  obligations  are  applicable  according  to  the 
ICJ,  but  in  which  the  law  of  armed  conflict  is  applicable.40  It  is  not  clear  whether  a 
State  which  is  assisting  a  territorial  State  in  dealing  with  a  non-international 
armed  conflict  can  rely  on  the  derogation  of  the  latter  or  whether  it  can  derogate 
in  its  own  right,  based  on  an  emergency  threatening  the  life  of  the  nation  outside 
its  own  territory. 

It  is  up  to  the  human  rights  body  to  determine  whether  the  situation  represents 
a  public  emergency  threatening  the  life  of  the  nation.41  The  body  will  allow  the 
State  a  "margin  of  appreciation"  in  its  characterization  of  the  situation.42  Under 
the  human  rights  treaties,  the  State  is  required  to  notify  a  designated  authority  that 
it  is  invoking  its  power  to  derogate.43  It  has  to  provide  an  indication  of  which  obli- 
gations it  is  derogating  from,  what  measures  it  has  introduced  and  an  explanation 
of  the  need  for  those  measures.  Certain  provisions,  non-derogable  rights,  cannot 
be  modified  in  any  circumstances.  While  the  list  of  non-derogable  rights  varies 
from  treaty  to  treaty,  they  all  include  the  prohibition  of  arbitrary  killings,  torture44 
and  slavery  and  do  not  include  the  provision  dealing  with  detention.45 

Just  because  a  right  is  potentially  derogable  does  not  mean  that  the  right  as  a 
whole  can  be  suspended.  As  indicated  above,  any  exceptional  restriction  has  to  be 
both  necessary  and  proportionate.46  Furthermore,  certain  restrictions  are  going  to 
be  more  difficult  to  justify  than  others.  For  example,  while  it  may  be  possible  to  jus- 
tify the  creation  of  a  new  ground  of  detention,  such  as  internment  or  administra- 
tive detention,  it  will  be  difficult  to  justify  suspension  of  all  form  of  review  of 
lawfulness  of  detention  {habeas  corpus  and  amparo).47 

This  brief  explanation  of  derogation  helps  put  in  context  the  statement  of  the 
ICJ  that  human  rights  law  remains  fully  applicable,  subject  only  to  derogation. 

In  General  Comment  No.  29,  the  Human  Rights  Committee  has  provided  a 
much  fuller  analysis  of  the  extent  to  which  human  rights  law  remains  applicable 
during  public  emergencies.48  It  first  clarified  the  types  of  situations  in  which  dero- 
gation is  possible.49  It  emphasized  that  the  limitation  clauses  enable  the  Committee 
to  address  a  range  of  troubled  situations  without  recourse  to  derogation.50  The 
Committee  pointed  out  that  for  a  situation  to  be  sufficiently  grave  as  to  justify  der- 
ogation will  generally  mean  that  the  law  of  armed  conflict,  in  the  form  of  at  least 
Common  Article  3,  will  also  be  applicable.51  That  reduces  the  chance  of  there  being 


493 


Is  Human  Rights  Law  of  Any  Relevance  to  Military  Operations  in  Afghanistan? 

a  gap,  where  some  human  rights  guarantees  have  been  withdrawn  but  law  of  armed 
conflict  protections  are  not  available.52  The  Committee  identifies  three  basic  prin- 
ciples. First,  non-derogable  rights  remain  applicable  at  all  times.53  The  second  and 
third  principles  concern  potentially  derogable  rights.  A  requirement  of  human 
rights  law  which  is  prima  facie  derogable  may,  in  effect,  be  non-derogable  if  it  plays 
a  vital  role  in  preventing  violations  of  a  non-derogable  right.54  An  obvious  example 
is  review  of  lawfulness  of  detention,  which  is  said  to  play  a  key  role  in  preventing 
torture  and  other  forms  of  proscribed  ill  treatment.  It  is  not  that  this  element  of  Ar- 
ticle 9  of  the  International  Covenant  on  Civil  and  Political  Rights,  dealing  with  de- 
tention, is  added  to  the  list  of  non-derogable  rights.  That  would  fly  in  the  face  of  the 
express  words  of  the  treaty.  It  is  rather  that  States  are  likely  to  find  it  impossible  to 
justify  the  necessity  of  the  total  extinction  of  the  right,  even  though  they  may  be 
able  to  explain  the  necessity  of  changes  in  its  usual  modalities.  This  second  principle 
may  apply  to  specific  elements  in  the  context  of  a  wider  right.  The  third  principle 
concerns  the  essence  or  core  of  the  wider  right  itself.  The  Committee  suggested  that 
it  would  be  hard  to  justify  the  suspension  of  the  very  essence  of  a  right,  even  if  vari- 
ous constituent  elements  could  be  modified.55  Again,  an  obvious  example  exists  in 
the  field  of  detention.  While,  in  an  emergency,  it  may  be  possible  to  create  addi- 
tional grounds  of  detention,  to  modify  the  modalities  of  review  of  lawfulness  and 
to  lengthen  the  period  during  which  a  person  may  be  held  before  being  brought  be- 
fore a  judicial  officer,  it  would  never  be  possible  to  justify  unacknowledged  deten- 
tion (disappearances).56  To  hold  otherwise  would  be  to  deprive  the  detainees  of  all 
protection  of  the  law. 

When  monitoring  State  reports,  the  Human  Rights  Committee  has  not  always 
made  clear,  in  the  Concluding  Observations,  the  precise  basis  of  its  analysis.  When 
the  Committee  raises  one  issue  but  not  another,  it  is  not  clear  whether  its  failure  to 
raise  the  second  is  because  the  alleged  violation  would,  on  account  of  the  circum- 
stances, be  covered  by  the  operation  of  a  limitation  clause  or  because  it  would  be 
covered  by  a  derogation  or  because  it  did  not  have  the  time  to  consider  the  issue.57 
All  that  can  be  said  in  general  terms  is  that  the  practice  of  the  Committee  in  its 
Concluding  Observations  appears  to  reflect  General  Comment  No.  29.  It  is  also 
noteworthy  that  no  State  has  objected  to  the  General  Comment,  even  though  three 
States  reacted  to  General  Comment  No.  24  on  reservations.58  At  the  very  least,  this 
suggests  that  the  United  States,  the  United  Kingdom  and  France  (the  three  States  in 
question)  had  no  objection  to  General  Comment  No.  29. 59 

The  Human  Rights  Committee  has  dealt  fairly  regularly  with  traditional  non- 
international  armed  conflicts,  that  is  to  say  an  armed  conflict  between  two  groups 
on  the  territory  of  one  State,  where  the  State  itself  may  be  a  party  to  the  conflict.60  It 
has  also  dealt  with  situations  of  occupation  and,  less  frequently,  with  States 

494 


Franqoise  /.  Hampson 


engaged  in  peace  support  operations  outside  national  borders.61  It  is  less  clear  how 
it  would  deal  with  the  relevance  of  human  rights  law  to  an  international  armed 
conflict.  The  ICJ's  statements  are  in  fact  contradictory.  On  the  one  hand,  it  has  said 
that  human  rights  law  remains  applicable  in  all  situations,  subject  only  to  deroga- 
tion, which  implies  that  that  body  of  law  is  relevant  even  in  relation  to  the  conduct 
of  military  operations.62  On  the  other  hand,  the  Court  has  stated, 

As  regards  the  relationship  between  international  humanitarian  law  and  human  rights 
law,  there  are  thus  three  possible  situations:  some  rights  may  be  exclusively  matters  of 
international  humanitarian  law;  others  may  be  exclusively  matters  of  human  rights 
law;  yet  others  may  be  matters  of  both  these  branches  of  international  law.63 

This  implies  that  there  are  situations  not  regulated  by  human  rights  law  but,  given 
the  earlier  comment,  it  is  not  clear  what  those  might  be. 

The  Inter- American  Commission  on  Human  Rights  and  the  Inter-American 
Court  of  Human  Rights  offer  a  more  complicated  picture.  They  apply  human 
rights  law,  taking  account  of  any  derogation,  in  situations  of  emergency.64  In  some 
circumstances,  however,  they  will  take  account  of  the  law  of  armed  conflict  in  in- 
terpreting human  rights  law.65  They  do  so  proprio  motu.  They  only  make  a  finding 
of  violation  of  human  rights  law,  not  of  the  law  of  armed  conflict.  What  is  less  clear 
is  whether  they  take  account  of  the  latter  in  all  situations  in  which  it  may  be  rele- 
vant. If  not,  what  criteria  are  they  applying?  Does  it  depend  on  the  issue  and/or 
whether  there  is  a  relevant  and  specific  rule  of  the  law  of  armed  conflict?66 

The  European  Court  of  Human  Rights  and  the  former  European  Commission 
of  Human  Rights  have  not  articulated  a  view  of  the  relevance  of  the  law  of  armed 
conflict,  even  though  they  have  dealt  with  situations  subject,  or  arguably  subject,  to 
non-international  armed  conflict,  such  as  Northern  Ireland,  Southeast  Turkey  and 
Chechnya,  and  even  an  international  armed  conflict,  the  conflict  between  Turkey 
and  Cyprus.  In  some  cases,  the  applicant's  legal  representative  raised  the  relevant 
law  of  armed  conflict  rule,  usually  to  reinforce  the  human  rights  law  rule.  In  other 
words,  it  is  not  that  the  issue  has  not  been  raised  before  the  European  human  rights 
institutions.  To  date,  it  would  appear  that,  in  all  or  virtually  all  cases  of  actual  or 
possible  non-international  armed  conflict,  the  act  would  have  been  in  breach  of 
both  human  rights  law  and  the  law  of  armed  conflict.  In  those  situations,  the 
European  human  rights  bodies  have  applied  human  rights  law  in  the  normal  way, 
subject  only  to  derogation  where  applicable.  Most  notably,  the  European  Commis- 
sion of  Human  Rights  failed  to  apply  the  law  of  armed  conflict  to  determine  the 
lawfulness  of  the  detention  of  prisoners  of  war  in  the  conflict  between  Turkey  and 
Cyprus.67  Turkey  had  not  submitted  notice  of  derogation  under  which  it  could 


495 


Is  Human  Rights  Law  of  Any  Relevance  to  Military  Operations  in  Afghanistan? 

have  introduced  a  ground  of  detention  not  normally  lawful.  The  detention  of  pris- 
oners of  war  was  therefore  found  to  be  unlawful!  One  of  the  ways  in  which  the  Court 
has  avoided  having  to  face  the  issue  is  as  a  result  of  its  view  of  the  extraterritorial  ap- 
plicability of  human  rights  law,  which  will  be  discussed  in  the  next  section. 

C.  How  Are  the  Relevant  Human  Rights  Norms  Affected  by  the  Applicability 
of  the  Law  of  Armed  Conflict? 

The  focus  in  this  subsection  will  be  on  the  human  rights  norms  dealing  with  kill- 
ings and  detention.  It  should  be  noted  that  other  rights  are  also  relevant,  notably 
those  relating  to  due  process,  freedom  of  speech,  freedom  of  assembly  and  the  right 
to  a  remedy,  particularly  when  States  are  assisting  another  State.68 

Superficially,  there  should  be  no  real  difficulty  in  reconciling  human  rights  law 
and  the  law  of  armed  conflict  for  the  Human  Rights  Committee,  and  for  the  Inter- 
American  Commission  on  Human  Rights  and  the  Inter-American  Court  of 
Human  Rights.  In  both  cases,  the  human  rights  provision  prohibits  arbitrary  kill- 
ings.69 The  right  is  non-derogable.70  What  would  be  arbitrary  in  a  peacetime  con- 
text, in  which  the  framework  of  analysis  is  a  law  and  order  paradigm,  is  not  the 
same  as  what  would  be  arbitrary  in  a  law  of  armed  conflict  context.  It  would  be 
straightforward  for  the  human  rights  monitoring  bodies  to  interpret  "arbitrary"  as 
meaning  that  a  killing  in  conformity  with  the  law  of  armed  conflict  was  not  arbi- 
trary in  a  conflict  context  or  at  least  where  it  occurred  as  part  of  a  military  opera- 
tion. It  should  be  noted  that  this  would  represent  a  reduction  in  the  current  level  of 
protection  in  non-international  armed  conflicts,  where  the  framework  applied  is 
usually  the  law  and  order  paradigm.71 

There  is,  however,  a  real  difficulty  for  parties  to  the  European  Convention  for 
Human  Rights.  The  provision  on  the  use  of  potentially  lethal  force  lists  exhaustively 
the  only  grounds  on  which  State  agents  may  resort  to  such  a  use  of  force.72  It  is 
based  on  the  law  and  order  paradigm.  The  derogation  provision  expressly  envisages 
the  possibility  of  derogation  so  as  to  permit  "lawful  acts  of  war."73  In  order  to  in- 
voke the  provision,  the  State  would  have  to  derogate.  No  State  has  ever  derogated 
from  Article  2  of  the  Convention,  whether  involved  in  a  non-international  armed 
conflict  or  international  armed  conflict  and  whether  the  conflict  was  in  national 
territory  or  extraterritorial.  Since  the  law  of  armed  conflict  is  not  applicable  by 
virtue  of  its  being  invoked  but  by  virtue  of  the  facts,  it  might  be  open  to  the  Euro- 
pean Court  of  Human  Rights  to  choose  to  use  the  law  of  armed  conflict  as  a  frame 
of  reference.74  It  has  not  yet  chosen  to  do  so  in  relation  to  non-international 
armed  conflicts  in  national  territory.75  It  has  generally  been  able  to  avoid  the  issue 
in  extraterritorial  situations.  The  Court  may  have  to  confront  the  issue  in  the 


496 


Francoise  /.  Hampson 


inter- State  case  introduced  by  Georgia  against  Russia  and  the  many  individual 
cases  brought  by  Georgians  and  Russians. 

In  the  case  of  detention,  the  International  Covenant  on  Civil  and  Political 
Rights  and  the  American  Convention  on  Human  Rights  again  prohibit  arbitrary 
detention.76  The  provisions  are  potentially  derogable.77  There  are  elements  to  the 
right  which  may  be  modified  but  from  which  it  is  unlikely  that  States  will  be  al- 
lowed to  depart  completely,  notably  the  provision  for  review  of  detention.78  It 
seems  clear  that  a  State  may,  by  derogation,  introduce  additional  exceptional 
grounds  of  detention.  It  is  not  clear  whether  a  State  needs  to  derogate  in  order  to 
justify  internment  or  administrative  detention.79  The  case  law  makes  it  clear  that 
detention  has  to  be  lawfully  authorized.  The  law  of  armed  conflict  itself  provides 
legal  authority  for  detention  under  Geneva  Conventions  III  and  IV  in  international 
armed  conflicts.  There  is  no  equivalent  provision  in  relation  to  non-international 
armed  conflicts.  Additional  Protocol  II  recognizes  that  people  maybe  detained  and 
provides  guarantees  for  such  detainees  but  it  does  not  itself  authorize  detention. 
This  is  not  surprising,  since  the  underlying  assumption  is  that  the  fighting  is  occur- 
ring in  the  territory  of  one  State  and  the  grounds  of  detention  would  be  expected  to 
be  regulated  by  the  domestic  law  of  that  State.  This  is  most  likely  to  be  a  problem 
where  States  are  involved  in  an  extraterritorial  non-international  armed  conflict. 
That  will  be  discussed  in  the  following  sections. 

The  situation  is  different  for  parties  to  the  European  Convention  for  Human 
Rights.  Again,  the  Convention  does  not  prohibit  arbitrary  detention  but  lists 
exhaustively  the  only  legitimate  grounds  of  detention.80  In  order  to  introduce  ad- 
ditional grounds,  a  State  is  required  to  derogate.  If  it  does  so,  it  may  be  able  to  jus- 
tify the  introduction  of  internment  or  administrative  detention.81  The  issue  of 
extraterritorial  detention  will  be  examined  in  the  next  section. 

It  therefore  appears  that  it  maybe  possible  for  at  least  some  human  rights  bodies 
to  accommodate  the  law  of  armed  conflict  but  that  it  may  be  necessary  to  derogate 
to  make  lawful  exceptional  grounds  of  detention.  It  was  also  seen  that  the  applica- 
tion of  the  law  of  armed  conflict  would  entail  the  reduction  of  existing  protection 
in  relation  to  arbitrary  killings,  at  least  in  non-international  armed  conflicts.  Human 
rights  bodies  can  take  account  of  the  law  of  armed  conflict  but  should  they  do  so 
and,  if  so,  in  what  circumstances? 

When  dealing  with  the  inter- relationship  between  the  law  of  armed  conflict  and 
human  rights  law,  the  ICJ  referred  to  the  former  as  the  lex  specialis.  In  some  ways, 
this  is  unhelpful  because  lex  specialis  more  easily  applies  to  a  vertical  relationship 
between  two  areas  of  law.82  When  dealing  with  a  commercial  tenancy,  any  special 
rules  regarding  such  tenancies  are  the  lex  specialis  as  compared  to  general  rules  on 
tenancies.  In  this  case,  however,  two  separate  legal  areas  are  bumping  into  one 

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another.  The  relationship  is  horizontal,  rather  than  vertical.  Nevertheless,  it  is  clear 
in  general  terms  what  the  ICJ  is  saying.  Law  of  armed  conflict  rules  are  best  suited 
to  conflict  situations  because  they  have  been  designed  for  that  context.  What  is  not 
clear  is  what  precisely  that  means  in  practice.  Does  it  mean  that  in  conflict  situa- 
tions all  human  rights  norms  should  be  interpreted  in  the  light  of  the  law  of  armed 
conflict,  so  that  no  violation  will  be  found  if  there  is  no  violation  of  that  body  of 
law?  That  would  be  unworkable.  There  is  nothing  in  the  law  of  armed  conflict 
about  the  right  to  marry.  The  mere  fact  that  suspending  the  right  to  marry  would 
not  violate  the  law  of  armed  conflict,  which  does  not  address  the  issue,  is  hardly 
sufficient  ground  for  suspending  the  human  rights  provision.  Another  possibility 
would  be  that  a  human  rights  norm  should  only  be  affected  by  the  law  of  armed 
conflict  where  there  is  a  relevant  law  of  armed  conflict  provision.  This  would  lead 
to  the  bizarre  result  that  the  law  of  armed  conflict  would  affect  killings  and  deten- 
tion but  not  the  right  to  demonstrate.83  It  has  also  been  suggested  that  a  human 
rights  body  should  move  backward  and  forward  between  the  two  areas  of  law,  de- 
pending on  the  issue.84  On  that  basis,  the  law  of  armed  conflict  would  deal  with 
grounds  of  detention  and  review  of  detention  in  international  armed  conflicts  but 
not  in  non-international  armed  conflicts.  Since  the  law  of  armed  conflict  does  not 
define  "court"  or  "tribunal,"  the  test  to  be  applied  would  be  a  human  rights  law 
test.  With  regard  to  issues  such  as  the  right  to  summon  witnesses,  where  there  is 
again  no  provision  in  the  law  of  armed  conflict,  reliance  would  be  placed  on  hu- 
man rights  law.  It  is  submitted  that  the  to-ing  and  fro-ing  between  two  legal  re- 
gimes is  unworkable  in  practice.  It  is  rather  as  though  parts  of  a  Mercedes  were 
fitted  to  a  VW  Beetle.  Human  rights  law  might  offer  useful  guidance  as  to  the  issues 
which  need  to  be  addressed,  but  to  suggest  that  human  rights  law  due  process  guar- 
antees should  apply  in  the  normal  way  would  again  lead  to  bizarre  results.  It  would 
be  more  workable  if  a  State  had  derogated  from  the  usual  due  process  guarantees, 
not  by  eliminating  the  guarantees  but  by  modifying  them.  It  is  too  soon  to  know 
how  the  lex  specialis  rule  is  going  to  be  applied  in  practice.  A  practical  way  forward 
will  be  suggested  in  the  conclusion. 

It  is  clear  that  to  some  extent  human  rights  law  remains  applicable  in  situations 
of  conflict,  particularly  non-international  armed  conflict,  but  the  precise  extent  of 
that  co-applicability  and  the  manner  in  which  the  law  of  armed  conflict  impacts 
upon  the  interpretation  of  human  rights  law  is  not  yet  clear. 

III.  The  Extraterritorial  Applicability  of  Human  Rights 

If  human  rights  law  only  applies  within  a  State's  territory,  this  has  very  significant 
implications  for  the  relationship  between  that  body  of  law  and  the  law  of  armed 

498 


Fran$oise  J.  Hampson 


conflict.  It  would  mean  that  the  issue  of  the  overlap  between  the  two  would  only  be 
relevant  in  non-international  armed  conflict  and  in  relation  to  the  State's  acts  and 
omissions  in  its  own  territory  during  an  international  armed  conflict.  If  human 
rights  law  applies  extraterritorially,  the  key  question  becomes  to  what  extent  and  to 
what  types  of  activities  it  is  applicable.85 

The  human  rights  community,  in  advocating  for  extraterritorial  applicability  of 
human  rights  law,  is  concerned  with  the  risk  of  lack  of  accountability.  It  fears  that 
the  State  would  be  allowed  to  do  outside  national  territory  what  it  cannot  do  within 
national  territory.  If  this  were  the  only  basis  on  which  the  argument  was  con- 
structed, it  would  be  misconceived.  The  human  rights  community  is  forgetting  ac- 
countability under  the  law  of  armed  conflict.  Its  concern  might  be  more  specific. 
While  there  is  theoretical  accountability  under  the  law  of  armed  conflict,  it  can 
hardly  be  described  as  effective.  In  principle,  subject  to  acceptance  of  the  ICJ's 
compulsory  jurisdiction,  a  victim  State  could  bring  a  complaint  against  a  perpetra- 
tor State.  In  fact,  the  issue  of  jurisdiction  poses  a  significant  barrier.  Even  when 
such  a  case  is  possible,  in  practice  it  is  very  rare  for  States  to  bring  alleged  violations 
of  the  law  of  armed  conflict  before  the  ICJ.86  It  is  not  clear  whether  a  non-victim 
State  could  bring  such  a  case,  based  on  the  erga  omnes  character  of  law  of  armed 
conflict  obligations.87  If  that  is  not  possible,  there  are  very  real  difficulties  in  bring- 
ing alleged  breaches  of  the  law  of  armed  conflict,  whether  committed  by  the  terri- 
torial State  or  assisting  States,  before  a  court,  since  the  victims  are  either  the 
civilians  in  the  territorial  State  or,  possibly,  members  of  non-State  armed  groups. 
This  situation  is  in  marked  contrast  with  human  rights  law,  at  least  in  the  case  of 
those  States  which  have  accepted  a  right  of  individual  petition.  An  individual  vic- 
tim can  seek  redress,  uninhibited  by  the  diplomatic  constraints  of  a  State.  The  ob- 
vious solution  would  be  to  introduce  a  right  of  petition  for  violations  of  the  law  of 
armed  conflict.  This  will  be  discussed  further  in  the  conclusion. 

Lawyers  with  armed  forces  should  identify  precisely  to  what  they  take  exception. 
The  armed  forces  should  not  object  to  accountability  per  se.  It  helps  to  keep  them 
honest.  What  they  should  oppose  is  inappropriate  accountability,  more  accurately 
accountability  based  on  inappropriate  norms.  The  key  question  for  the  military 
should  not  be  the  extraterritorial  applicability  of  human  rights  law,  but  ensuring 
that  the  solution  to  the  co-applicability  of  legal  regimes  is  appropriate.  If  a  law  and 
order  paradigm  were  applied  to  extraterritorial  activities,  the  armed  forces  would 
have  a  well-founded  concern,  but  it  would  not  be  the  result  of  extraterritorial  ap- 
plicability. If,  on  the  other  hand,  the  prohibition  of  arbitrary  killings  was  applied 
consistently  with  the  law  of  armed  conflict  in  military  operations  and  according  to 
a  law  and  order  paradigm  in  other  areas  in  the  territory,  to  what  can  the  armed 
forces  legitimately  object? 

499 


Is  Human  Rights  Law  of  Any  Relevance  to  Military  Operations  in  Afghanistan? 

Two  States  have  objected,  in  principle,  to  the  extraterritorial  applicability  of 
human  rights  law,  the  United  States  and  Israel.88  This  raises  the  same  issues  as  their 
objection  to  the  applicability  of  human  rights  law  when  the  law  of  armed  conflict  is 
applicable.  In  this  case,  other  States  may  accept  some  measure  of  extraterritorial 
applicability  but  only  in  very  limited  circumstances. 

The  ICJ's  view  regarding  the  extraterritorial  applicability  of  human  rights  law  is 
clear  but  it  is  not  clear  on  what  it  is  based.  In  the  Wall  Advisory  Opinion,  the  ICJ 
was  dealing  with  the  applicability  of  human  rights  law  in  occupied  territory.89  In 
DRC  v.  Uganda,  the  ICJ  was  dealing  with  both  occupied  Ituri  and  non-occupied 
territory  in  the  Democratic  Republic  of  the  Congo.90  In  both  cases,  the  ICJ  as- 
sumed the  applicability  of  human  rights  law.  In  the  contentious  case,  the  ICJ  found 
the  same  actions  to  be  violations  of  both  Article  5 1  of  Additional  Protocol  I  and  Ar- 
ticle 6  of  the  International  Covenant  on  Civil  and  Political  Rights. 

The  Human  Rights  Committee  has  had  to  deal  with  obligations  in  occupied  ter- 
ritory but  only  occasionally  with  other  forms  of  extraterritorial  activities.  In  occu- 
pied territory,  it  has  consistently  held  the  occupying  power  responsible  for 
ensuring  respect  of  the  rights  of  the  occupied  population,  apparently  based  on  its 
control  of  the  territory.91  This  position  contains  both  theoretical  and  practical  dif- 
ficulties. Is  the  State  bound  to  apply  its  own  obligations  or  those  applicable  in  the 
territory  occupied?  Given  that  under  the  law  of  armed  conflict  the  occupying 
power  is  not  allowed  to  change  the  law  of  the  occupied  territory  unless  necessary 
for  its  own  security,  how  is  it  to  provide  for  those  human  rights  that  cannot  be  de- 
livered by  merely  executive  action?92  Does  the  occupying  power  only  have  negative 
obligations,  that  it  is  to  say  that  State  agents  are  prohibited  themselves  from  violat- 
ing human  rights  law,  or  is  it  obliged  to  protect  the  population  from  the  risk  of  vio- 
lations, including  at  the  hand  of  third  parties?  Insofar  as  the  occupying  power  is  in 
an  analogous  position  in  relation  to  the  population  as  the  sovereign,  it  might  not  be 
unreasonable  to  subject  the  occupying  power  to  analogous  obligations. 

In  one  case,  the  Human  Rights  Committee  had  to  deal  with  the  extraterritorial 
acts  of  State  agents  who  allegedly  cooperated  in  the  infliction  of  torture,  together 
with  agents  of  the  territorial  State.93  Here,  there  could  be  no  argument  as  to  control 
of  territory.  The  State  agents  could,  however,  be  said  to  have  exercised  control  over 
the  detainee.  It  was  not  exclusive  control.  The  Human  Rights  Committee  found 
the  State  responsible  for  a  violation.  It  is  not  clear  whether  that  was  based  on  the 
control  of  the  detainee  or  on  the  control  over  the  infliction  of  the  alleged  violation. 

In  General  Comment  31,  the  Human  Rights  Committee  addressed  the  scope  of 
the  State's  obligation  to  implement  human  rights  obligations.94  The  focus  was  on 
implementation,  rather  than  extraterritoriality.  The  Committee  stated  that 


500 


FranqoiseJ.  Hampson 


[t]his  principle  also  applies  to  those  within  the  power  or  effective  control  of  the  forces 
of  a  State  Party  acting  outside  its  territory,  regardless  of  the  circumstances  in  which 
such  power  or  effective  control  was  obtained,  such  as  forces  constituting  a  national 
contingent  of  a  State  Party  assigned  to  an  international  peace-keeping  or  peace- 
enforcement  operation.95 

This  is  ambiguous.  There  are  certainly  some  situations  in  peace  support  operations 
in  which  individuals  are  subject  to  the  control  of  the  participating  State,  such  as  de- 
tention, but  that  is  exceptional.  The  General  Comment,  however,  suggests  that 
there  may  be  a  more  generalized  responsibility  in  such  situations. 

The  Inter-American  Court  of  Human  Rights  has  not  dealt  with  a  case  of  extra- 
territorial applicability.  The  Inter-American  Commission  on  Human  Rights  has 
done  so,  but  only  under  the  American  Declaration  of  the  Rights  and  Duties  of  Man 
(American  Declaration)  and  not  the  American  Convention  on  Human  Rights.  The 
former  does  not  contain  a  jurisdictional  limitation  clause.  The  Commission  has 
dealt  with  the  shooting  down  of  an  aircraft  by  the  Cuban  air  force,96  two  cases  aris- 
ing out  of  the  US  invasion  of  Grenada,97  one  involving  the  US  invasion  of  Pan- 
ama98 and  currently  has  cases  involving  the  responsibility  of  the  United  States  for 
detentions  in  Guantanamo  Bay.99 

The  European  Court  of  Human  Rights  is  the  human  rights  body  which  has  most 
often  had  to  address  the  issue.  The  English  High  Court  has  found  that  the  cases 
cannot  be  reconciled.100  The  earlier  cases  involved  non-military  issues,  such  as  the 
issuing  of  passports.101  A  significant  development  occurred  in  the  case  of  Loizidou 
v.  Turkey,  in  which  the  European  Court  of  Human  Rights  found  that  Turkey's  oc- 
cupation of  northern  Cyprus  made  it  responsible  for  the  full  protection  of  human 
rights  in  the  territory,  including  for  the  acts  of  Turkish  Cypriot  officials.102  In  Ilascu 
v.  Moldova  and  Russia,  the  Court  had  to  address  Russia's  responsibility  for  the  acts 
of  officials  in  Transdniestria.103  The  Court  found  Russia  responsible  for  the  unlaw- 
ful detention  of  the  applicants.  While  the  Court  did  not  use  the  word  occupation, 
its  analysis  was  strongly  reminiscent  of  the  reasoning  in  Loizidou.  It  is  not  clear 
whether  the  Court  is  using  a  law  of  armed  conflict  definition  of  occupation.  That 
confusion  resulted  in  the  highest  English  court,  the  House  of  Lords,  determining 
that  southern  Iraq  might  be  occupied  for  the  purposes  of  the  law  of  armed  conflict 
but  not  for  the  purposes  of  the  applicability  of  the  European  Convention  for  Human 
Rights.104  This  is  clearly  an  unsatisfactory  conclusion. 

The  language  of  the  European  Court  of  Human  Rights  suggested  that  applicants 
detained  extraterritorially  would  be  regarded  as  "within  the  jurisdiction"  of  the  de- 
taining State.105  That  was  applied  in  the  case  ofOcalan  v.  Turkey.106 

The  area  of  remaining  uncertainty  concerns  situations  in  which  people  are  killed 
outside  the  territory  of  the  State  responsible.  Bankovic  et  al.  v.  Belgium  &  16  members 

501 


Is  Human  Rights  Law  of  Any  Relevance  to  Military  Operations  in  Afghanistan? 

of  NATO107  suggested  that  such  applicants  would  not  be  regarded  as  "within  the  ju- 
risdiction" but  an  obiter  dictum  of  the  Court  in  Issa  v.  Turkey  implied  that  a  State 
could  be  in  temporary  occupation  of  territory.108  More  recently,  Turkey  was  found 
responsible  for  a  killing  in  the  buffer  zone  in  Cyprus.109  These  issues  will  have  to  be 
addressed  again  in  the  litigation  arising  out  of  the  conflict  between  Georgia  and 
Russia.  Other  issues  which  are  likely  to  come  before  the  Court  include  detention  at 
the  hands  of  the  British  in  Basra  in  the  case  of  Al-Jedda,  and  killings  of  persons  not 
in  detention  in  southern  Iraq  in  the  case  of  Al  Skeini.110 

The  current  position  leads  to  apparently  arbitrary  results.  If  a  person  is  shot 
dead  at  point-blank  range,  he  is  presumably  within  the  control  of  the  shooter. 
What  if  he  is  deliberately  shot  at  50  yards  or  500  yards?  There  is  a  danger  that  the 
approach  of  the  European  Court  of  Human  Rights  will  encourage  States  to  use  air 
power  rather  than  ground-based  operations,  with  foreseeable  consequences  for  ci- 
vilian casualties.  It  is  submitted  that  a  better  approach  would  be  to  say  that  a  victim 
is  "within  the  jurisdiction"  if  foreseeably  affected  by  an  act  or  omission.  This  would 
not  be  the  same  as  the  cause  and  effect  liability  of  the  law  of  armed  conflict.  It 
would  leave  room  for  mistakes  of  fact,  weapons  malfunctions,  the  acts  of  the  op- 
posing forces  and,  above  all,  it  would  require  that  the  attacking  forces  foresaw  or 
should  have  foreseen  the  harm  to  the  victim. 

It  would  appear  from  the  case  law  that  a  State  will  have  the  full  range  of  human 
rights  obligations  in  occupied  territory.  It  is  not  clear  whether  the  obligations  in 
question  are  those  of  the  sovereign  or  those  of  the  intervening  State.  It  is  also  un- 
certain whether  the  definition  of  occupation  is  the  same  in  the  law  of  armed  con- 
flict and  in  human  rights  law. 

It  also  seems  that  persons  detained  extraterritorially  will  be  within  the  jurisdic- 
tion of  the  detaining  State  and  therefore  entitled  to  have  their  rights  respected.  It 
will  be  recalled  that  this  issue  raises  problems  when  a  State  is  engaged  in  an  ex- 
traterritorial non-international  armed  conflict  and  that  parties  to  the  European 
Convention  for  Human  Rights  would  appear  to  be  required  to  derogate  if  wishing 
to  detain  on  a  ground  not  included  in  the  exhaustive  enumeration  in  Article  5  of 
the  Convention.  It  is  not  clear  to  what  extent  human  rights  law  is  applicable  ex- 
traterritorially in  other  situations. 

IV.  The  Implication  of  the  Human  Rights  Obligations  of  the 
Territorial  State  for  States  Assisting  It 

When,  with  or  without  a  UN  mandate,  a  State  assists  another  State  dealing  with  a 
situation  in  the  territory  of  the  latter,  the  obligations  at  issue  are  not  only  the  extra- 
territorial obligations  of  the  intervening  State.  The  host  State  also  has  obligations 

502 


Fran$oiseJ.  Hampson 


and  it  is  not  acting  outside  its  national  territory.  The  most  likely  situation  would  be 
a  non-international  armed  conflict  in  the  territorial  State,  but  it  could  equally  in- 
volve an  international  armed  conflict.111  Clearly,  all  the  parties  would  be  bound  by 
their  law  of  armed  conflict  obligations.  It  is  possible  that  these  could  vary,  depend- 
ing on  ratification.  Such  differences  would  be  reduced  to  the  extent  to  which  the 
treaty  rules  represent  customary  law.  The  issue  in  this  context  concerns  rather  the 
impact  of  the  territorial  State's  human  rights  obligations. 

The  first  possibility  is  that  the  armed  forces  of  the  intervening  States  have  the 
status  of  State  agents  of  the  territorial  State  for  the  purposes  of  human  rights  law. 
This  would  appear  to  be  most  unlikely,  unless  the  forces  came  under  the  command 
and  control  of  the  territorial  State.  It  seems  more  likely  that  the  territorial  State 
would  not  have  direct  responsibility  but  would  only  have  the  responsibility  to  en- 
sure that  the  intervening  States  acted  in  conformity  with  its  own  human  rights  ob- 
ligations. In  other  words,  the  issue  would  concern  the  positive  obligation  of  the 
territorial  State  to  protect  those  within  its  jurisdiction  from  the  risk  of  violation  at 
the  hands  of  third  parties.  The  obligations  in  question  might  not  be  the  same  as  the 
human  rights  obligations  of  the  assisting  States.112  They  would  presumably  be  lim- 
ited to  those  activities  within  the  mandate  of  the  intervening  States.  In  other  words, 
Afghanistan  might  be  obliged  to  ensure  that  adequate  steps  were  taken  by  the  inter- 
vening States  to  protect  the  right  to  life  of  Afghans,  but  those  States  would  not  have 
any  responsibility  to  deliver  education,  by  virtue  of  Afghanistan's  obligations  in 
that  sphere.  Where  States  require  assistance,  they  are  unlikely  to  be  in  a  position  to 
impose  terms  on  the  assisting  States.  It  is  more  likely  to  be  a  matter  of  negotiation. 
Nevertheless,  the  obligations  of  assisting  States  under  general  international  law 
would  presumably  imply  that  they  should  not  require  the  territorial  State  to  breach 
its  own  obligations.113 

This  clearly  has  significant  implications  for  the  conduct  of  ISAF  States  in  Af- 
ghanistan. The  issue  of  extraterritoriality  would  cease  to  be  relevant.  The  question 
would  be  the  implications  of  Afghanistan's  human  rights  obligations  for  ISAF 
States.114  The  only  issue  would  be  the  relationship  between  the  law  of  armed  con- 
flict and  human  rights  law.  The  questions  include,  first,  the  circumstances  in 
which  ISAF  forces  can  open  fire.  Does  that  vary  in  different  areas,  with  the  law  and 
order  paradigm  being  prevalent  in  the  north  and  west  of  the  country  and  the  law 
of  armed  conflict  paradigm  being  applicable  at  least  in  some  circumstances  in 
other  areas?  Second,  in  relation  to  detention,  are  the  ISAF  forces  authorized,  un- 
der Afghan  law,  to  detain  in  circumstances  in  which  Afghan  forces  could  detain? 
Has  a  law  been  made  to  that  effect?  Is  the  detention  regime  in  Afghan  law  com- 
patible with  the  ISAF  State's  human  rights  obligations?  If  the  situation  is  a  non- 
international  armed  conflict,  there  is  no  basis  for  detention  in  the  law  of  armed 

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Is  Human  Rights  Law  of  Any  Relevance  to  Military  Operations  in  Afghanistan? 

conflict.115  Detaining  powers  are  entirely  dependent  on  domestic  legal  provisions. 
Afghanistan  has  not  derogated  under  the  International  Covenant  on  Civil  and 
Political  Rights.  Should  it  do  so?  Could  the  ISAF  States  rely  on  an  Afghan  deroga- 
tion? Does  Afghan  law  adequately  protect  the  rights  of  detainees,  in  the  light  not 
only  of  law  of  armed  conflict  requirements  but  also  of  whatever  human  rights  ob- 
ligations are  applicable?  Third,  particular  difficulties  arise  relating  to  the  transfer 
of  detainees,  whether  between  ISAF  States  or  between  ISAF  States  and  Afghani- 
stan. Under  human  rights  law,  the  detaining  State  cannot  transfer  a  detainee  to  the 
authorities  of  another  State  if  there  is  a  real  risk  of  torture,  cruel,  inhuman  or 
degrading  treatment.  The  right  at  issue  is  non-derogable. 

The  first  warning  of  litigation  arose  in  Canada,  where  the  issue  of  transfers  has 
been  raised.116  It  is  not  known  whether  cases  are  waiting  for  resolution  before  do- 
mestic courts,  the  Inter-American  Commission  on  Human  Rights,  the  Human 
Rights  Committee  or  the  European  Court  of  Human  Rights.  In  the  course  of  exer- 
cising its  general  monitoring  functions,  the  Human  Rights  Committee  has  usually 
focused  on  the  responsibility  of  the  intervening  State.  It  did,  however,  request  and 
receive  a  report  from  the  United  Nations  Interim  Administration  Mission  in 
Kosovo  in  the  context  of  examining  the  implementation  of  the  International  Cove- 
nant on  Civil  and  Political  Rights  in  Serbia.1 17  NATO's  Kosovo  Force  (KFOR)  con- 
cluded a  special  agreement  with  the  European  Committee  on  the  Prevention  of 
Torture,  enabling  the  Committee  to  exercise  its  functions  in  Kosovo.118 

The  responsibility  of  the  territorial  State  to  protect  the  rights  of  those  within  its 
jurisdiction  appears  to  have  implications  for  States  assisting  it  but  the  impact  of 
that  responsibility  is  not  yet  clear. 

V.  The  Implications  of  a  Security  Council  Mandate 

Where  an  intervening  State  has  a  mandate  from  a  recognized  authority  or  where 
the  presence  of  foreign  forces  is  recognized  by  a  relevant  authority,  can  the  man- 
date make  lawful  what  would  otherwise  be  unlawful? 

If  the  mandate  was  contained  in  a  Security  Council  resolution  adopted  under 
Chapter  VII  of  the  UN  Charter  and  if  the  mandate  required  conduct  in  breach  of 
international  law,  it  appears  that  the  resolution  would  prevail  over  other  legal 
rules. 1 19  It  is  not  clear  whether  that  bald  judgment  needs  to  be  reviewed  in  the  light 
of  the  passage  of  time.  In  particular,  one  may  question  whether  the  Security  Coun- 
cil could  require  a  State  to  breach  a  ius  cogens  rule.  In  practice,  Security  Council  res- 
olutions containing  mandates  for  military  forces  do  not  require  certain  activities; 
they  merely  authorize  them.  As  a  result  of  general  principles  of  international  law 
and  under  the  principle  of  pacta  sunt  servanda^  it  must  surely  be  the  case  that  States 

504 


Fran$oise  /.  Hampson 


cannot  implement  an  authority  to  act  in  a  fashion  which  breaches  other  interna- 
tional law  obligations,  unless  that  is  necessary  to  the  exercise  of  the  authority.  In  the 
case  of  the  ISAF,  this  is  reinforced  by  a  provision  in  the  preamble  to  Security  Coun- 
cil Resolution  1386  of  December  20,  2001,  which  requires  "that  all  Afghan  forces 
must  adhere  strictly  to  their  obligations  under  human  rights  law,  including  respect 
for  the  rights  of  women,  and  under  international  humanitarian  law." 

This  must  represent  an  authority  to  act  subject  to  the  law  of  armed  conflict  and 
human  rights  law  obligations.  This  does  not,  of  course,  define  what  those  obliga- 
tions are.  It  does  call  into  question  the  denial  of  the  extraterritorial  applicability  of 
human  rights  law.  Does  the  mandate  subject  ISAF  States  to  the  full  range  of  human 
rights  obligations  involved  in  the  discharge  of  the  mandate  or  should  it  be  read  as 
referring  to  human  rights  law  insofar  as  it  is  applicable? 

In  relation  to  killings,  the  mandate  determines  whether  there  is  authority  to  en- 
ter a  law  of  armed  conflict  context  or  whether  the  operation  is  required  to  operate 
in  a  law  and  order  paradigm.  The  authority  only  to  use  force  in  self-defense  is  an 
example  of  the  latter.  Where  a  force  can  use  "all  necessary  means,"  this  implies  that 
it  may  use  force  other  than  merely  in  self-defense.  This  does  not  mean  that  it  is  the 
appropriate  framework  throughout  the  territory  in  question  or  at  all  times.  It  is  an 
authority  to  enter  a  law  of  armed  conflict  framework  when  and  where  necessary 
and  not  a  requirement  to  do  so  everywhere  and  at  all  times.  Participating  States  will 
be  dependent  upon  the  application  of  law  of  armed  conflict  rules  to  determine 
whether  they  can  enter  a  law  of  armed  conflict  framework.  Provided  that  human 
rights  law  interprets  arbitrary  killing  in  a  fashion  consistent  with  the  law  of  armed 
conflict  where  that  is  applicable,  and  in  the  "usual"  way  where  it  is  not,  there 
should  be  no  real  difficulties.  Rather,  if  there  are  difficulties,  it  is  not  attributable  to 
the  law(s)  applicable  but  to  the  complexity  of  the  situation  on  the  ground. 

Detention  is  a  more  complicated  matter.  As  already  noted,  there  is  a  particular 
difficulty  in  relation  to  the  lawful  authority  to  detain  under  non-international 
armed  conflict  rules.  The  law  of  armed  conflict  does  not  itself  provide  that  author- 
ity. Domestic  law  for  detention  in  conflict  situations  may  be  non-existent  and/or 
incompatible  with  human  rights  law.  It  is  not  clear  whether  States  participating  in  a 
peace  support  operation  can  rely  on  domestic  authority  to  detain.  A  further  diffi- 
culty for  parties  to  the  European  Convention  for  Human  Rights  is  that  they  can 
only  detain  on  specific  grounds  which  do  not  include  internment  or  administrative 
detention.  In  order  to  be  able  to  detain  on  that  ground,  they  are  required  to  dero- 
gate but  it  is  not  clear  whether  they  can  derogate  on  account  of  an  emergency  in  the 
territory  of  another  State  or  whether  they  could  benefit  from  the  derogation  of  the 
territorial  State.  It  should  be  noted  that  Afghanistan  has  not  derogated  from  its  ob- 
ligations under  the  International  Covenant  on  Civil  and  Political  Rights.  It  would 

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Is  Human  Rights  Law  of  Any  Relevance  to  Military  Operations  in  Afghanistan? 

be  possible  for  a  UN  mandate  to  fill  in  the  gap  in  a  non-international  armed  con- 
flict. It  could  provide  for  authority  to  detain  and  specify  the  grounds  on  which  a 
person  could  be  detained.  In  practice,  UN  mandates  simply  provide  that  forces 
may  use  "all  necessary  means"  for  the  fulfilment  of  the  mandate.  Detaining  persons 
who  threaten  security  is  clearly  a  means  to  give  effect  to  the  mandate  but  it  is  not 
clear  that  it  is  sufficiently  specific  to  constitute  a  lawful  authority  to  detain.  The  ar- 
gument usually  used  against  specificity  is  that  it  would  require  the  enumeration  of 
all  the  other  necessary  means.  It  is  submitted  that  this  is  not  the  case.  There  are  par- 
ticular reasons  why  the  authority  to  detain  must  be  specific — to  comply  with  re- 
spect for  human  rights  law,  which  is  required  by  virtue  of  the  preambular 
paragraph.  That  does  not  mean  that  other  measures  need  to  be  enumerated. 

Where  a  mandate  gives  express  authority  to  take  a  particular  form  of  action,  it 
would  be  difficult  to  challenge  the  lawfulness  of  that  action  under  human  rights 
law.120  It  would,  however,  remain  possible  to  challenge  the  manner  of  its  execution. 
If,  for  example,  a  mandate  gave  authority  to  detain,  a  challenge  as  to  the  lawfulness 
of  the  fact  of  detention  would  appear  bound  to  fail.  A  challenge  as  to  its  arbitrary 
application  or  to  the  lack  of  mechanisms  of  review  would  not,  however,  appear  to 
be  precluded  by  the  mandate. 

To  date,  the  Human  Rights  Committee  has  tended  to  raise  the  conduct  of  forces 
involved  in  peace  support  operations  with  the  sending  States  rather  than  the  terri- 
torial State.  It  has  done  so  in  the  context  of  the  exercise  of  its  monitoring  functions. 
It  has  not  dealt  with  an  individual  complaint  arising  out  of  the  conduct  of  such 
forces.  It  has,  however,  had  to  address  a  domestic  measure  of  implementation  of  a 
Security  Council  resolution.121  While  the  issue  is  slightly  different,  this  does  sug- 
gest the  approach  that  would  be  taken  to  a  case  involving  the  implementation  of  a 
mandate  in  the  context  of  peace  support  operations. 

The  Inter-American  Commission  on  Human  Rights  and  the  Inter- American 
Court  of  Human  Rights  do  not  appear  to  have  addressed  such  an  issue.  While  cases 
have  been  submitted  under  the  American  Declaration  relating  to  detainees  in 
Guantanamo,  it  is  not  known  whether  similar  cases  have  been  submitted  in  rela- 
tion to  Iraq  and  Afghanistan.  In  Europe,  the  lead  has  been  taken  by  the  European 
Court  of  Justice,  which  deals  with  questions  of  European  Union  (EU)  law  in  rela- 
tion to  EU  members.122  The  case  before  it  was  similar  to  the  one  before  the  Human 
Rights  Committee,  in  that  it  dealt  with  a  national  measure  of  implementation  of  a 
Chapter  VII  Security  Council  resolution.123  It  found  the  national  measure  to 
breach  the  human  rights  obligations  of  Belgium.  Both  the  Human  Rights  Commit- 
tee and  the  European  Court  of  Justice  emphasized  that  they  were  not  reviewing  the 
Security  Council  resolution  itself  but  only  the  national  measure.  The  same  argu- 
ment is  presumably  applicable  to  national  implementation  by  the  executive,  in  the 

506 


Francoise  J.  Hampson 


form  of  the  security  forces  of  a  State,  of  a  Security  Council  mandate.  The  European 
Court  of  Human  Rights  has  only  had  to  address  the  issue  twice.  It  avoided  the  issue 
by  finding  that  the  acts  in  question  (alleged  failure  to  protect  the  right  to  life  as  a  re- 
sult of  failing  to  clear  mines  when  the  presence  of  mines  was  known  to  the  French 
forces,  and  alleged  unlawful  detention  by  KFOR)  were  the  responsibility  of  the  UN, 
rather  than  of  the  individual  member  States  complained  against.124  The  European 
Court  of  Human  Rights  is  likely  to  get  the  opportunity  to  revisit  the  issue.  It  re- 
mains to  be  seen  whether  it  will  be  influenced  by  the  decisions  of  the  Human  Rights 
Committee  and  the  European  Court  of  Justice,  which  postdate  its  own  admissibil- 
ity decisions. 

It  therefore  appears  likely  that  human  rights  bodies  will  take  account  of  a  spe- 
cific authority  to  act  contained  in  a  mandate,  most  notably  authority  to  detain. 
This  does  not  mean  that,  in  the  implementation  of  the  mandate,  a  State  will  be  free 
to  disregard  its  human  rights  obligations,  particularly  when  there  is  express  refer- 
ence to  an  obligation  to  act  in  conformity  with  such  obligations.  It  is  not  clear 
whether  the  mandate  modifies  the  operation  of  the  normal  rules  on  the  scope  of 
the  extraterritorial  applicability  of  human  rights  law  and  how  such  bodies  will  deal 
with  derogation  in  an  extraterritorial  context. 

VI.  How  Taking  Account  of  Human  Rights  Considerations 
Can  Contribute  to  the  Effective  Conduct  of  Military  Operations 

In  this  section,  the  focus  is  not  on  human  rights  law  but  on  human  rights  more 
generally.  Setting  aside  legal  arguments  about  the  applicability  of  human  rights  law 
when  the  law  of  armed  conflict  is  applicable  and  about  the  extraterritorial  applica- 
bility of  human  rights  law,  would  it  make  sense  for  the  military  to  take  account  of 
human  rights  considerations? 

The  objects  of  the  use  of  military  force  vary,  depending  on  the  nature  of  the  op- 
eration. In  an  international  armed  conflict,  the  use  of  military  force  is  designed  to 
change  the  status  quo  so  as  to  permit  the  resolution  of  the  previous  dispute,  either 
as  a  result  of  the  fighting  or  as  a  result  of  negotiation  in  the  context  of  the  changed 
situation.  Non-international  armed  conflicts  operate  in  a  different  context,  even  if 
the  actual  conduct  of  military  operations  appears  to  be  similar.  The  object  is  to  create 
the  space  in  which  a  political  solution  can  be  made.  It  is  often  the  case  that  a  suc- 
cessful outcome  cannot  be  achieved  by  military  means  alone.  Whereas  in  interna- 
tional armed  conflicts  it  is  probably  generally  assumed  that  the  civilian  population 
supports  its  own  State,125  in  non-international  armed  conflicts  it  is  an  independent 
constituency.  A  non-State  group  needs  the  civilian  population's  active  or  passive 
support,  so  as  to  facilitate  its  own  operations.  The  State  needs  its  support  in  order 

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Is  Human  Rights  Law  of  Any  Relevance  to  Military  Operations  in  Afghanistan? 

to  isolate  the  non-State  group.  Where  fighters  have  support  from  the  civilian  pop- 
ulation, this  gives  the  former  a  certain  legitimacy.  Where  fighters  do  not  have  that 
support,  it  is  easier  to  brand  the  fighters  as  criminals.  Whatever  the  situation  in  in- 
ternational armed  conflicts,  in  counterinsurgency  (COIN)  operations  it  is  very 
clear  that  the  State  needs  to  act  in  such  a  way  as  to  retain  or  to  gain  the  support  of 
the  civilian  population,  usually  referred  to  as  the  battle  of  hearts  and  minds.126 

That  view  is  so  obvious  as  to  be  a  platitude,  were  it  not  for  the  fact  that  States  re- 
peatedly play  lip  service  to  the  notion  while  acting  in  a  completely  contrary  fashion. 
Routinely,  States  dealing  with  an  insurgency  engage  in  arbitrary  round-ups,  and 
unnecessarily  abusive  and  destructive  searches.  They  turn  a  blind  eye  to  allegations 
of  ill  treatment  in  detention  and  to  alleged  unlawful  killings.  New  rules  are  intro- 
duced to  deny  review  of  the  lawfulness  of  detention  and  to  replace  inconvenient 
due  process  guarantees,  thereby  making  convictions  much  easier.  Nowhere  is  this 
better  illustrated  than  in  Northern  Ireland.  When  the  British  forces  were  first  de- 
ployed, they  were  greeted  as  saviors  by  the  Roman  Catholic  population,  who 
thought  the  soldiers  would  protect  them  from  attack  by  elements  in  the  Protestant 
population.  That  view  changed  as  a  result  of  the  conduct  of  the  armed  forces.  The 
British  armed  forces  behaved  significantly  less  badly  than  the  forces  of,  for  exam- 
ple, Guatemala,  El  Salvador  or  Turkey.  It  is  precisely  because  the  British  armed 
forces  take  the  rule  of  law  seriously  that  much  is  to  be  learned  from  their  experience 
in  Northern  Ireland.  While  some  positive  changes  in  behavior  were  probably  the 
result  of  an  internal  process,  there  is  no  doubt  that  some  were  brought  about  as  a 
result  of  human  rights  litigation  before  the  European  Commission  of  Human 
Rights  and  the  European  Court  of  Human  Rights.  Either  those  proceedings 
speeded  up  a  process  that  would  have  occurred  anyway,  but  more  slowly,  or  they 
were  themselves  responsible  for  change.  Only  when  the  forces  respected  restrictive 
rules  of  engagement,  abandoned  internment  and  introduced  an  extraordinary 
range  of  safeguards  against  abuse  for  those  detained  did  the  conduct  of  the  armed 
forces  generally  cease  to  be  part  of  the  problem.127  The  reaction  to  the  recent 
bombings  in  Northern  Ireland  shows  that  those  engaging  in  political  violence  are 
now  seen  as  merely  criminals  by  the  population  as  a  whole. 

Over  the  past  forty  years,  the  United  States  has  assumed  that  its  armed  forces 
would  be  engaged  in  international  armed  conflicts.  More  recently,  it  has  been  rec- 
ognized that  they  may  be  frequently  involved  in  COIN  operations.128  The  US 
armed  forces  have  converted  the  COIN  doctrine  into  practice  with  amazing  speed. 
Nevertheless,  it  is  not  always  yielding  the  results  hoped  for,  particularly  in  Afghani- 
stan. It  is  submitted  that  one  of  the  reasons  for  that  is  a  flawed  implementation  of 
the  understandings  underlying  the  COIN  doctrine.  In  order  to  understand  how  to 
conduct  COIN  operations,  forces  need  to  ask  themselves  what  it  would  feel  like  to 

508 


Frangoise  J.  Hampson 


be  a  civilian  in  that  situation.129  The  priorities  and  concerns  of  the  civilian  popula- 
tion may  not  be  those  of  the  armed  forces,  but  if  the  hearts  and  minds  of  the  former 
need  to  be  won,  it  is  clear  which  must  take  precedence.  This  may  mean  that  armed 
forces  need  to  operate  in  ways  which  are  likely  to  entail  more  casualties  among 
their  own  ranks  than  if  they  operated  in  a  different  way.  Those  lives  are  not  wasted. 
On  the  other  hand,  if  the  armed  forces  fight  as  they  want  to,  this  will  entail  far  more 
casualties  in  the  long  run,  including  among  the  armed  forces,  and  will  not  even 
achieve  the  purpose  for  which  the  fighting  is  taking  place.  Those  lives,  whether 
civilian  or  military,  are  wasted.  There  is  not  the  space  here  to  outline  the  ways  in 
which  putting  yourself  in  the  shoes  of  a  local  civilian  would  impact  on  military 
operations. 

It  is  not  only  in  the  conduct  of  military  operations  that  a  human  rights  approach 
may  help  avoid  problems.  It  also  applies  to  both  the  treatment  of  detainees  and 
their  due  process  guarantees.  There  is  no  need  to  rehearse  here  the  negative  impact 
on  the  perception  of  US  armed  forces  and  also  on  those  forces  themselves  of  the 
abandonment  of  respect  for  even  the  prohibition  of  ill  treatment  contained  in 
Common  Article  3  of  the  Geneva  Conventions.  Instead,  an  illustration  will  be  used 
from  the  due  process  debate.  When  the  original  proposal  for  military  commissions 
attracted  fierce  criticism,  President  Bush  set  up  a  genuinely  bipartisan  group  to  ad- 
vise him  on  how  the  procedures  could  be  improved.130  Unfortunately,  the  mem- 
bers had  expertise  in  US  constitutional  law  and  civil  rights  law  but  not  in 
international  human  rights  law.  That  meant  that  their  only  benchmark  was  US  due 
process  guarantees.  When  needing  to  depart  from  them,  they  had  no  other  bottom 
line.  Taking  the  specific  issue  of  the  evidence  to  be  used,  a  human  rights  lawyer 
would  have  said  that  the  starting  point  is  that  evidence  should  be  made  available  in 
open  court  and  subject  to  cross-examination.  However,  in  exceptional  circum- 
stances, it  may  be  necessary  to  modify  the  usual  rules.  Where,  for  example,  the 
prosecution  is  based  on  the  evidence  of  an  undercover  policeman,  it  maybe  neces- 
sary to  protect  his  identity.  This  does  not  necessarily  mean  that  he  cannot  give  evi- 
dence at  all.  He  may  be  able  to  give  evidence  in  the  courtroom  but  behind  a  screen. 
Or,  if  his  voice  needs  to  be  distorted,  he  maybe  able  to  give  evidence  from  an  adja- 
cent room,  still  permitting  cross-examination.  Provided  that  there  is  a  genuine 
need  (as  opposed  to  it  being  more  convenient)  to  modify  the  rule  and  provided 
that  the  minimum  departure  possible  has  been  made  from  the  norm  and,  if  appro- 
priate, other  safeguards  have  been  introduced,  there  may  well  be  no  violation  of 
human  rights  law.131  Where  significant  departures  are  to  be  made  from  normal  due 
process  guarantees,  the  State  might  usefully  consider  derogating  from  the  relevant 
human  rights  law  provision.  It  is  not,  or  not  simply,  that  human  rights  guarantees 
are  set  at  a  lower  threshold  than  US  law.  A  human  rights  approach  enables  the 

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Is  Human  Rights  Law  of  Any  Relevance  to  Military  Operations  in  Afghanistan? 

introduction  of  modifications  without  the  abandonment  of  all  notions  of  rule  of 
law.  The  danger  with  the  US  approach  is  that  it  means  normal  due  process  guaran- 
tees or  nothing. 

It  is  hoped  that  this  all  too  brief  examination  of  the  significance  of  human  rights 
values  will  cause  the  reader  to  stop  and  think.  A  human  rights  approach  is  not 
something  to  be  feared.  It  may  actually  enable  armed  forces  to  achieve  their  pur- 
poses more  effectively  and  with  fewer  casualties. 

VII.  Conclusion 

Both  human  rights  law  and  the  law  of  armed  conflict  may  be  applicable  at  the  same 
time.  It  remains  to  be  seen  how  human  rights  bodies  will  take  account  of  the  rele- 
vance of  the  law  of  armed  conflict.  It  is  submitted  that  two  things  need  to  be 
avoided.  First,  finding  the  right  accommodation  between  the  two  bodies  of  rules 
should  not  be  exclusively  a  matter  for  human  rights  bodies,  not  least  because  that 
would  make  it  subject  to  the  vagaries  of  particular  cases  rather  than  permitting  a 
more  coherent  way  forward  to  be  developed.  Second,  it  should  not  be  approached 
by  academics  and  governmental  players  in  a  top-down  fashion,  as  a  matter  of  legal 
rules  which  simply  need  to  be  applied.  It  is  submitted  that  a  more  effective  ap- 
proach would  be  to  identify  situations  on  the  ground  that  need  to  be  addressed. 
Each  issue  should  be  the  subject  of  a  document  which  would  not  have  any  legal  sta- 
tus but  whose  contents  could  be  used  as  guidelines.132  They  could  be  refined  with 
the  benefit  of  experience.  Each  document  would  address  the  issue  in  great  detail 
and  would  provide  alternatives  for  the  different  contexts  in  which  the  situation  can 
arise.133  In  order  to  produce  these  documents,  there  is  a  need  for  a  small  group 
composed  both  of  lawyers  and  of  non-lawyers  and  whose  members  would  have  ex- 
pertise in  both  human  rights  law  and  the  law  of  armed  conflict.  It  goes  without  say- 
ing that  there  should  be  members  with  military  experience.  Over  time,  the 
guidelines  could  be  incorporated  into  military  operations  and  into  the  reasoning  of 
human  rights  bodies.  This  would  increase  the  chances  of  them  applying  the  same 
standards  and  avoiding  conflicts. 

It  seems  clear  that  human  rights  law  applies  extraterritorially  in  the  case  of  de- 
tainees. Human  rights  bodies  and  the  ICI  are  of  the  view  that  it  also  applies  to  cases 
of  military  occupation  but  it  is  not  clear  how  human  rights  bodies  understand  the 
concept  of  occupation,  and  the  application  of  human  rights  law  is  not  free  of  theo- 
retical and  practical  difficulties.  What  is  wholly  unclear  is  the  extent  to  which  and 
the  manner  in  which  it  applies  in  other  extraterritorial  circumstances,  particularly 
to  the  conduct  of  military  operations.  The  impact  of  the  territorial  State's  human 
rights  obligations  on  assisting  States  is  also  uncertain.  While  a  mandate  can 

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provide  authority  for  particular  actions,  it  does  not  provide  blanket  authorization 
for  a  disregard  of  human  rights  law  in  its  implementation.  It  is  unclear  to  what  ex- 
tent a  reference  to  human  rights  in  the  mandate  "trumps"  the  usual  limits  on  the 
extraterritorial  applicability  of  human  rights  law.  On  condition  that  human  rights 
law  is  interpreted  in  the  light  of  relevant  rules  of  the  law  of  armed  conflict,  armed 
forces  should  not  fear  the  extraterritorial  applicability  of  the  former.  If  all  the  nec- 
essary guidelines  discussed  above  could  be  produced,  States  might  be  more  willing 
to  concede  greater  scope  to  the  extraterritorial  applicability  of  human  rights  law. 
That  would  permit  the  development  of  a  more  coherent  approach  to  the  question. 

A  more  radical  alternative  would  involve  the  creation  of  a  right  of  individual 
petition  in  relation  to  alleged  violations  of  the  law  of  armed  conflict,  both  in  inter- 
national armed  conflicts  and  in  non-international  armed  conflicts.  In  some  cir- 
cumstances, this  would  result  in  two  bodies  being  available  to  petitioners:  a  human 
rights  body  and  a  new  law  of  armed  conflict  body.  It  would  need  to  be  determined 
whether  it  would  be  up  to  applicants  to  decide  which  avenue  to  pursue  or  whether 
they  could  be  required  to  petition  the  law  of  armed  conflict  body,  where  the  re- 
spondent State  has  accepted  its  jurisdiction.  Demarcation  lines  would  need  to  be 
established  between  the  human  rights  bodies  and  the  new  body.  Until  a  right  of  in- 
dividual petition  exists  for  violations  of  the  law  of  armed  conflict,  individuals  can 
be  expected  to  continue  to  use  human  rights  bodies  to  attempt  to  obtain  redress. 

It  is  emphatically  not  being  suggested  that  the  sole  explanation  for  the  difficul- 
ties of  the  military  operations  in  Afghanistan  are  attributable  to  the  failure  to  take 
adequate  account  of  human  rights  law  and  human  rights  values.  It  is  being  sug- 
gested, however,  that  those  failures  have  contributed  to  the  current  situation.  Pro- 
vided that  human  rights  law  takes  proper  account  of  the  context  and  of  the  relevant 
rules  of  the  law  of  armed  conflict,  human  rights  law  should  be  seen  as  a  useful  tool 
in  the  arsenal  of  a  military  lawyer,  rather  than  as  an  alien  and  terrifying  body  of 
rules  to  be  avoided  at  all  cost. 

Notes 

1.  See,  e.g.,  Ben  Farmer,  US  soldiers  "fired  indiscriminately  at  civilians,"  DAILY  TELEGRAPH 
(London),  Jan.  8,  2009,  available  at  http://www.telegraph.co.uk/news/worldnews/asia/afghanistan/ 
4 176874/US-soldiers-fired-indiscriminately- at-civilians.html;  Seumas  Milne,  The  innocent  dead 
in  a  coward's  war,  GUARDIAN  (London),  Dec.  20,  2001,  available  at  http://www.guardian.co.uk/ 
world/200  l/dec/20/afghanistan.comment;  US  "excessive"  in  Afghan  attack,  BBC  NEWS,  Apr. 
15,  2007,  http://news.bbc.co.Uk/l/hi/world/south_asia/6556721.stm;  HUMAN  RIGHTS 
WATCH,  THE  HUMAN  COST  (2007),  available  at  http://www.hrw.org/en/node/10984/section/ 
8;  Human  Rights  Watch,  Legal  Issues  Arising  from  the  War  in  Afghanistan  and 
Related  Anti-Terrorism  Efforts  (Oct.  2001),  http://www.hrw.org/sites/default/files/ 

reports/ihlqna.pdf;  AMNESTY  INTERNATIONAL,  AFGHANISTAN  -  AMNESTY  INTERNATIONAL 

511 


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REPORT  2007  (2007),  available  at  http://www.amnesty.org/en/region/report-2007;  AMNESTY 
INTERNATIONAL,  AFGHANISTAN  -  AMNESTY  INTERNATIONAL  REPORT  2008  (2008),  available  at 
http://www.amnesty.org/en/region/afghanistan/report-2008. 

2.  See  Brigadier  General  Carlos  Branco,  International  Security  Assistance  Force  (ISAF) 
Spokesperson,  Opening  Statement  at  News  Conference  (May  28,  2008),  http://www.nato.int/ 
isaf/docu/speech/2008/sp0805 19a.html;  Jaap  de  Hoop  Scheffer,  NATO  Secretary  General,  Re- 
marks at  the  "Security  and  defence  agenda"  conference  (June  8,  2007),  http://www.nato.int/ 
docu/speech/2007/s070608a.html;  IRINnews.org,  AFGHANISTAN:  NGO  network  raps  inter- 
national forces  over  civilian  deaths  (June  20,  2007),  http://www.irinnews.org/Report.aspx 
?ReportId=72838  (quoting  Major  Chris  Belchera,  US  military  spokesman  at  Baghram  airfield  to 
the  north  of  Kabul  ("We  have  always  respected  international  law  in  our  military  engagements") 
and  Major  John  Thomas,  ISAF  spokeman  in  Kabul  ("Sometimes  we  even  call  off  air  strikes  to 
avoid  unnecessary  harm  to  noncombatants")). 

3.  See  North  Atlantic  Treaty  Organization,  NATO's  Role  in  Afghanistan,  http://www 
.nato.int/issues/afghanistan/index.html#mandate  (last  visited  Feb.  23,  2009). 

4  Letter  from  the  Chief  of  Section,  Political  and  Specialized  Agencies,  of  the  Permanent 
Mission  of  the  United  States  of  America  to  the  United  Nations  Office  at  Geneva,  U.N.  Doc.  E/ 
CN.4/2003/G/80,  at  2-3  (Apr.  22,  2003);  Written  Statement  of  the  Government  of  the  United 
States  of  America  at  42-46,  Legality  of  the  Threat  or  Use  of  Nuclear  Weapons  (June  20, 1995);  see 
generally  John  Norton  Pomeroy  et  al.,  The  Competence  of  the  UN  Human  Rights  Council  and  Its 
Special  Procedures  in  Relation  to  Armed  Conflicts:  Extrajudicial  Executions  in  the  "War  On  Terror, " 
19  EUROPEAN  JOURNAL  OF  INTERNATIONAL  LAW  183  (2008). 

5.  See  generally  BASIC  DOCUMENTS  ON  HUMAN  RIGHTS  (Ian  Brownlie  et  al.  eds.,  5th  ed. 
2006);  HENRY  J.  STEINER  &  PHILIP  ALSTON,  INTERNATIONAL  HUMAN  RIGHTS  IN  CONTEXT: 

Law,  Politics,  Morals  (2d  ed.  2000). 

6.  Roland  Schmidt,  Introduction  into  the  International  Human  Rights  Regime  (Nov.  12, 
2008),  available  at  http://www.univie.ac. at/bim/php/bim/get.php?id=989. 

7.  Velasquez-Rodriguez  v.  Honduras,  Judgment  of  July  29,  1988,  Inter-Am.  Ct.  H.R.  (ser. 
C)  No.  4  (1988),  paras.  172,  174-75,  177-78,  182. 

8.  Osman  v.  United  Kingdom,  29  Eur.  Ct.  H.R.  245  (1998);  X  and  Y  v.  Netherlands,^  Eur. 
Ct.  H.R.  (ser.  A)  (1985);  Assenov  and  Others  v.  Bulgaria,  96  Eur.  Ct.  H.R.  (ser.  A)  at  3264,  para. 
102  (1998);  Henri  Unai  Parot  v.  Spain,  Communication  No.  6/1990,  Committee  Against  Tor- 
ture, U.N.  Doc.  A/50/44  at  62,  paras.  10.4  &  6.1  (1995). 

9.  Osman  v.  United  Kingdom,  supra  note  8,  para.  115;  see  also  L.C.B.  v.  United  Kingdom, 
76  Eur.  Ct.  H.R.  1390  (1998);  A  v.  United  Kingdom,  90  Eur.  Ct.  H.R.  2692,  para.  22  (1998) 
(stating  that  Articles  1  and  3  of  the  European  Convention  required  "States  to  take  measures  de- 
signed to  ensure  that  individuals  within  their  jurisdiction  are  not  subjected  to  torture  or  inhu- 
man or  degrading  treatment  or  punishment,  including  such  ill-treatment  administered  by 
private  individuals");  Report  on  the  Situation  of  Human  Rights  in  the  Republic  of  Guatemala, 
Inter-Am.  C.H.R.,  OEA/Ser.L/V/II.53,  doc.  21  rev.  2,  para.  10  (1981)  (declaring  that,  in  the 
context  of  violent  attacks,  "governments  must  prevent  and  suppress  acts  of  violence,  even  force- 
fully, whether  committed  by  public  officials  or  private  individuals,  whether  their  motives  are 
political  or  otherwise"). 

10.  See,  e.g.,  Lindon,  Otchakovsky- Laurens  and  July  v.  France,  App.  Nos.  21279/02  &  36448/ 
02,  Eur.  Ct.  H.R.  (2007),  available  at  http://cmiskp.echr.coe.int/tkp  197/search.asp?skin=hudoc-en 
(rejecting  the  applicant's  assertion  that  the  domestic  law  was  not  "necessary  in  a  democratic 
Society,"  the  Court  held  that  the  question  was  whether,  in  the  context  of  the  case  as  a  whole,  the 
reasons  advanced  to  justify  interference  with  the  right  to  freedom  of  expression  are  "relevant  and 


512 


Fran$oise  J.  Hampson 


sufficient"  and  "proportionate  to  the  legitimate  aim  pursued"  and  that  balancing  the  rights  to 
reputation  and  free  expression,  "regardless  of  the  forcefulness  of  political  struggles,"  it  was  ap- 
propriate to  ensure  a  "minimum  degree  of  moderation  and  propriety."  Given  the  "virulent  con- 
tent of  the  impugned  passages"  and  that  the  statements  explicitly  named  Le  Pen  and  the  Front 
National  party,  the  Court  agreed  the  statements  were  defamatory.  The  content  of  the  impugned 
statements  was  "such ...  to  stir  up  violence  and  hatred . . .  going  beyond . . .  tolerable . . .  political 
debate"  even  against  an  extremist  figure  such  as  Le  Pen). 

1 1 .  The  danger  of  judgments  based  on  hindsight  is  avoided  in  the  case  of  individual  criminal 
responsibility  where  the  elements  of  the  crime  make  it  clear  that  it  is  necessary  to  establish  what 
the  defendant  knew  or  ought  to  have  known  and  that  determinations  are  based  on  what  was 
known  at  the  time.  It  is  not  clear  whether  the  civil  obligations  of  the  State  under  the  law  of  armed 
conflict,  as  opposed  to  the  obligations  of  the  individual  under  international  criminal  law,  are 
more  onerous. 

12.  Legality  of  the  Threat  or  Use  of  Nuclear  Weapons,  Advisory  Opinion,  1996  I.C.J.  226, 
paras.  24-25  (July  8);  see  also  Legal  Consequences  of  the  Construction  of  a  Wall  in  the  Occupied 
Palestinian  Territory,  Advisory  Opinion,  2004  LCJ.  136,  paras.  102,  105  (July  9);  see  Protocol 
Additional  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the  Protection  of  Vic- 
tims of  Non-International  Armed  Conflicts  pmbl.  para.  2,  June  8,  1977,  1125  U.N.T.S.  609,  re- 
printed in  DOCUMENTS  ON  THE  LAWS  OF  WAR  483  (Adam  Roberts  &  Richard  Guelff  eds.,  3d  ed. 
2000)  [hereinafter  Additional  Protocol  II]  ("Recalling  furthermore  [in  addition  to  Common  Ar- 
ticle 3]  that  international  instruments  relating  to  human  rights  offer  a  basic  protection  to  the  hu- 
man person");  European  Convention  for  the  Protection  of  Human  Rights  and  Fundamental 
Freedoms  art.  15(1),  Nov.  4,  1950,  213  U.N.T.S.  222  [hereinafter  European  Convention  for 
Human  Rights]  (providing  for  derogation  "[i]n  time  of  war"). 

13.  See  generally  Section  2:  General  Rights  and  Duties  of  Neutral  States,  33  AMERICAN 
JOURNAL  OF  International  Law  Supplement  232  (1939);  L.  H.  Woolsey,  Closure  of  Ports  by  the 
Chinese  Nationalist  Government,  44  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  350  (1950). 

14.  See  Jean  S.  Pictet,  Commentary:  Geneva  Convention  I  for  the  Amelioration 
of  the  Condition  of  the  Wounded  and  Sick  in  Armed  Forces  in  the  Field  37-60  (1952), 
avfli/a^/earhttp://www.icrc.org/ihl.nsf/COM/365-570006?OpenDocument. 

15.  Convention  for  the  Amelioration  of  the  Condition  of  the  Wounded  and  Sick  in  Armed 
Forces  in  the  Field  art.  3,  Aug.  12, 1949, 6  U.S.T.  3114, 75  U.N.T.S.  31;  Convention  for  the  Ame- 
lioration of  the  Condition  of  Wounded,  Sick  and  Shipwrecked  Members  of  Armed  Forces  at  Sea 
art.  3,  Aug.  12,  1949,  6  U.S.T.  3217,  75  U.N.T.S.  85;  Convention  Relative  to  the  Treatment  of 
Prisoners  of  War  art.  3,  Aug.  12, 1949, 6  U.S.T.  3316, 75  U.N.T.S.  135;  Convention  Relative  to  the 
Protection  of  Civilian  Persons  in  Time  of  War  art.  3,  Aug.  12, 1949,  6  U.S.T.  3516,  75  U.N.T.S. 
287  [hereinafter  Geneva  Convention  IV];  all  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR, 
supra  note  12,  at  197,  222,  244  and  301,  respectively. 

16.  Rene  Provost,  International  Human  Rights  and  Humanitarian  Law  13-16 
(2002). 

17.  See  Robert  Kolb,  The  relationship  between  international  humanitarian  law  and  human 
rights  law:  A  brief  history  of  the  1948  Universal  Declaration  of  Human  Rights  and  the  1949  Geneva 
Conventions,  38  INTERNATIONAL  REVIEW  OF  THE  RED  CROSS  409  (1998);  Universal  Declaration 
of  Human  Rights,  G.A.  Res.  21 7A,  at  71,  U.N.  GAOR,  3d  Sess.,  1st  plen.  mtg.,  U.N.  Doc.  A/810 
(Dec.  12,  1948);  European  Convention  for  Human  Rights,  supra  note  12. 

18.  Universal  Declaration  of  Human  Rights,  supra  note  17,  pmbl. 

19.  Additional  Protocol  II,  supra  note  12;  Geneva  Convention  IV,  supra  note  15;  Statute  of  the 
International  Criminal  Tribunal  for  the  former  Yugoslavia,  S.C.  Res.  827,  U.N.  Doc.  S/RES/827 


513 


Is  Human  Rights  Law  of  Any  Relevance  to  Military  Operations  in  Afghanistan? 

(May  25,  1993),  extract  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  12,  at  568; 
Statute  of  the  International  Criminal  Tribunal  for  Rwanda,  S.C.  Res.  955,  U.N.  Doc.  S/RES/955 
(Nov.  8, 1994),  extract  reprinted  in  id.  at  618;  Statute  of  the  International  Criminal  Court,  July  17, 
1998,  2187  U.N.T.S.  90,  extract  reprinted  in  id.  at  671. 

20.  See,  e.g.,  Protocol  Additional  to  the  Geneva  Conventions  of  1 2  August  1 949,  and  Relating 
to  the  Protection  of  Victims  of  International  Armed  Conflicts,  June  8, 1977, 1 125  U.N.T.S.  3,  re- 
printed in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  12,  at  422  (regarding  precautions 
against  the  effects  of  attacks  and  civil  defense);  Geneva  Convention  IV,  supra  note  15  (concern- 
ing general  protection  of  populations  against  certain  consequences  of  war  and  internment  of  en- 
emy aliens). 

21.  This  was  one  of  the  arguments  used  by  the  respondent  governments  in  the  case  of 
Bankovicand  others  v.  Belgium  and  others,  2001 -XII  Eur.  Ct.  H.R.  333.  For  example,  it  is  unlikely 
that  the  United  States  would  be  willing  to  assist  other  States  dealing  with  an  insurgency,  if  they 
were  subject  only  to  human  rights  law  and  not  the  law  of  armed  conflict,  given  that  it  does  not 
even  acknowledge  the  applicability  of  human  rights  law  during  armed  conflict.  See  John  Cerone, 
Jurisdiction  and  Power:  The  Intersection  of  Human  Rights  Law  &  the  Law  of  Non- International 
Armed  Conflict  in  an  Extraterritorial  Context,  40  ISRAEL  LAW  REVIEW  72,  128  n.28  (2007)  (In  a 
letter  dated  Jan.  31,  2006,  addressed  to  the  Office  of  the  High  Commissioner  for  Human  Rights, 
the  Permanent  Representative  of  the  United  States  of  America  to  the  United  Nations  and  Other 
International  Organizations  in  Geneva  wrote,  "The  United  States  has  made  clear  its  position  that 
it  is  engaged  in  a  continuing  armed  conflict  against  Al  Qaida,  that  the  law  of  war  applies  to  the 

conduct  of  that  war  and  related  detention  operations "  (emphasis  added).  Indeed,  the  United 

States  justifies  its  continued  detention  of  the  Guantanamo  detainees  only  in  reference  to  the  law 
of  armed  conflict.  In  replying  to  inquiries  by  UN  and  related  human  rights  bodies  about  the  legal 
basis  for  detaining  the  individuals  at  Guantanamo,  the  United  States  has  consistently  asserted 
that  "[t]he  law  of  war  allows  the  United  States — and  any  other  countries  engaged  in  combat — to 
hold  enemy  combatants  without  charges  or  access  to  counsel  for  the  duration  of  hostilities."  Re- 
sponse of  the  United  States  of  America  dated  Oct.  21,  2005  to  Inquiry  of  the  UNCHR  Special 
Rapporteurs  dated  Aug.  8,  2005  Pertaining  to  Detainees  at  Guantanamo  Bay;  see  also  Annex  to 
Second  Periodic  Report  of  the  United  States  to  the  Committee  Against  Torture,  filed  on  May  6, 
2005);  but  see  Del  Quentin  Wilber  &  Peter  Finn,  U.S.  Retires  "Enemy  Combatant,"  Keeps  Broad 
Right  to  Detain,  WASHINGTON  POST,  Mar.  14,  2009,  at  A6. 

22.  It  was  often  a  matter  of  negotiating  within,  rather  than  between,  national  delegations. 
The  then-Soviet  naval  interest  had  more  in  common  with  the  US  naval  interest  than  either  had 
with  the  interest  in  protecting  fishing  rights  in  the  territorial  sea  and  the  exclusive  economic 
zone. 

23.  European  Convention  for  Human  Rights,  supra  note  12,  art.  15;  International  Covenant 
on  Civil  and  Political  Rights  art.  4,  Dec.  16,  1966,  999  U.N.T.S.  171;  American  Convention  on 
Human  Rights  art.  27,  Nov.  22,  1969,  1 144  U.N.T.S.  123;  African  Charter  on  Human  and  Peo- 
ples' Rights,  June  27,  1981,  OAU  Doc.  CAB/LEG/67/3  rev.  5,  21  INTERNATIONAL  LEGAL 
MATERIALS  58  (1982)  (containing  no  express  derogation  clause  and  held  to  be  non-derogable). 

24.  U.N.  Human  Rights  Committee,  General  Comment  No.  29,  States  of  Emergency,  U.N. 
Doc.  CCPR/C/21/Rev.l/Add.l  1  (Aug.  31, 2001)  [hereinafter  General  Comment  29];  Abella  v.  Ar- 
gentina, Case  11.137,  Inter-Am.  C.H.R.,  Report  No.  55/97,  OEA/Ser.L/V/II.98,  doc.  6  rev.,  para. 
160  ( 1997)  ("during  situations  of  internal  armed  conflict . . .  these  two  branches  of  international 
law  [human  rights  law  and  the  law  of  armed  conflict]  most  converge  and  reinforce  each  other"). 


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FrangoiseJ.  Hampson 


25.  See,  e.g.,  International  Covenant  on  Civil  and  Political  Rights,  supra  note  23  (signatories, 
72;  parties,  164);  American  Convention  on  Human  Rights,  supra  note  23  (signatories,  25);  Euro- 
pean Convention  for  Human  Rights,  supra  note  12,  (ratifications/accessions,  47). 

26.  See,  e.g.,  S.C.  Res.  1265,  para.  4,  U.N.  Doc.  S/RES/1265  (Sept.  17, 1999);  Respect  for  hu- 
man rights  in  armed  conflicts,  G.A.  Res.  3319  (XXIX)  (Dec.  14,  1974);  S.C.  Res.  1296,  para.  5, 
U.N.  Doc.  S/RES/1296  (Apr.  19,  2000)  (noting  that  "the  deliberate  targeting  of  civilian  popula- 
tions or  other  protected  persons  and  the  committing  of  systematic,  flagrant  and  widespread  vio- 
lations of  international  humanitarian  and  human  rights  law  in  situations  of  armed  conflict  may 
constitute  a  threat  to  international  peace  and  security");  S.C.  Res.  237,  U.N.  Doc.  S/RES  237 
(lune  14,  1967)  (stressing  that  human  rights  must  be  respected  by  all  the  parties  to  a  conflict); 
G.A.  Res.  2252  (ES-V)  (July  4,  1967). 

27.  Legality  of  the  Threat  or  Use  of  Nuclear  Weapons,  Advisory  Opinion,  supra  note  12, 
para.  25;  Legal  Consequences  of  the  Construction  of  a  Wall  in  the  Occupied  Palestinian  Terri- 
tory, Advisory  Opinion,  supra  note  12  paras.  106-13;  Armed  Activities  on  the  Territory  of  the 
Congo  (Dem.  Rep.  Congo  v.  Uganda),  2005  I.C.J.  116,  para.  216  (Dec.  19). 

28.  General  Comment  29,  supra  note  24;  see  also  U.N.  Commission  on  Human  Rights,  Siracusa 
Principles  on  the  Limitation  and  Derogation  Provisions  in  the  International  Covenant  on  Civil  and  Polit- 
ical Rights,  U.N.  Doc.  E/CN.4/ 1985/4,  Annex  (Sept.  28, 1984)  [hereinafter  Siracusa  Principles]. 

29.  Concluding  Observations  of  the  Human  Rights  Committee:  United  States  of  America 
para.  10,  U.N.  Doc.  CCPR/C/USA/CO/3  (Sept.  15,  2006)  ("The  State  party  should  in  particular 
(a)  acknowledge  the  applicability  of  the  Covenant  with  respect  to  individuals  under  its  jurisdic- 
tion but  outside  its  territory,  as  well  as  its  applicability  in  time  of  war");  Concluding  Observa- 
tions of  the  Human  Rights  Committee:  Democratic  Republic  of  the  Congo  para.  13,  U.N.  Doc. 
CCPR/C/COD/CO/3  (Apr.  26,  2006)  ("The  State  party  should  take  all  necessary  steps  to 
strengthen  its  capacity  to  protect  civilians  in  the  zones  of  armed  conflict,  especially  women  and 
children");  see  also  Concluding  Observations  of  the  Human  Rights  Committee:  Israel,  U.N.  Doc. 
CCPR/CO/78/ISR  (Aug.  21, 2003);  Concluding  Observations  of  the  Human  Rights  Committee: 
Sri  Lanka,  U.N.  Doc.  CCPR/CO/79/LKA  (Dec.  1,  2003);  Concluding  Observations  of  the  Hu- 
man Rights  Committee:  Colombia,  U.N.  Doc.  CCPR/CO/80/COL  (May  26,  2004). 

30.  U.N.  Human  Rights  Committee,  General  Comment  No.  3 1 ,  Nature  of  the  General  Legal 
Obligation  Imposed  on  States  Parties  to  the  Covenant,  U.N.  Doc.  CCPR/C/21/Rev.l/Add.l3 
para.  11  (May  26,  2004)  [hereinafter  General  Comment  31];  U.N.  Human  Rights  Committee, 
Concluding  Observation  of  the  Human  Rights  Committee,  Israel  para.  11,  U.N.  Doc.  CCPR/ 
CO/78/ISR  (Aug.  21,2003). 

3 1 .  They  include  the  United  Nations'  Special  Rapporteur  on  Torture  and  Other  Cruel,  Inhu- 
man or  Degrading  Treatment  or  Punishment;  the  Special  Rapporteur  on  Extrajudicial,  Sum- 
mary or  Arbitrary  Executions;  and  the  Special  Rapporteur  on  the  Right  of  Everyone  to  the 
Enjoyment  of  the  Highest  Attainable  Standard  of  Physical  and  Mental  Health;  and  the  Represen- 
tative of  the  Secretary- General  on  the  Human  Rights  of  Internally  Displaced  Persons;  and  the 
Working  Groups  on  Enforced  or  Involuntary  Disappearances  and  on  Arbitrary  Detention. 

32.  See,  e.g.,  sources  cited  supra  note  29. 

33.  U.N.  Human  Rights  Committee,  Second  Periodic  Report:  Israel  para.  8,  U.N.  Doc. 
CCPR/C/ISR/2001/2  (Dec.  4,  2001)  ("Israel  has  consistently  maintained  that  the  Covenant  does 
not  apply  to  areas  that  are  not  subject  to  its  sovereign  territory  and  jurisdiction.  This  position  is 
based  on  the  well-established  distinction  between  human  rights  and  humanitarian  law  under  in- 
ternational law"). 

34.  The  United  States  ratified  the  International  Covenant  on  June  8, 1 992.  The  United  States 
did  make  a  declaration  to  the  effect  that  the  Constitution  would  remain  applicable,  even  during 


515 


Is  Human  Rights  Law  of  Any  Relevance  to  Military  Operations  in  Afghanistan? 

emergencies;  see  generally  Kristina  Ash,  U.S.  Reservations  to  the  International  Covenant  on  Civil 
and  Political  Rights:  Credibility  Maximization  and  Global  Influence,  3  NORTHWESTERN  UNIVERSITY 
JOURNAL  OF  INTERNATIONAL  HUMAN  RIGHTS  7,  17  n.56  (2005);  Senate  Comm.  on  Foreign  Re- 
lations, Report  on  the  International  Covenant  on  Civil  and  Political  Rights,  S.  Exec.  Rep.  No.  23,  at 
1, 102dCong.,2dSess.  (1992),  reprinted  in  31  INTERNATIONAL  LEGAL  MATERIALS  645  (1992)  (de- 
claring that  even  in  times  of  emergency,  the  United  States  will  adhere  to  its  Constitution). 

35.  Fisheries  Case  (U.K.  v.  Norway),  1951  I.C.J.  3  (Dec.  18). 

36.  France,  Norway,  Denmark,  Sweden,  Netherlands  v.  Turkey,  App.  Nos.  9940-9944/82, 35 
Eur.  Comm'n  H.R.  Dec.  &  Rep.  143,  169  (1983),  finding  that 

the  general  principle  of  reciprocity  in  international  law  and  the  rule,  stated  in  Article  2 1 , 
para.  1  of  the  Vienna  Convention  on  the  Law  of  Treaties,  concerning  bilateral  relations 
under  a  multilateral  treaty  do  not  apply  to  the  obligations  under  the  European 
Convention  on  Human  Rights,  which  are  "essentially  of  an  objective  character,  being 
designed  rather  to  protect  the  fundamental  rights  of  individual  human  beings  from 
infringement  by  any  of  the  High  Contracting  Parties  than  to  create  subjective  and 
reciprocal  rights  for  the  High  Contracting  Parties  themselves"  (Austria  v.  Italy, 
Yearbook  4, 1 16,  at  page  140).  The  European  Court  of  Human  Rights  (at  para.  239  of  its 
judgment  in  the  Northern  Ireland  Case)  has  similarly  referred  to  the  "objective 
obligations"  created  by  the  Convention  over  a  network  of  mutual,  bilateral 
undertakings. 

Cyprus  v.  Turkey,  App.  No.  8007/77, 1 3  Eur.  Comm'n  H.R.  Dec.  &  Rep.  85, 147  (1978)  (holding 
that  "[a]n  application  brought  under  Article  24  [European  Convention  for  Human  Rights]  does 
not  of  itself  envisage  any  direct  rights  or  obligations  between  the  High  Contracting  Parties 
concerned. . . .  [T]he  special  'objective  obligations,'  accepted  by  [the]  High  Contracting  Parties 
to  the  Convention, ...  are  obligations  towards  persons  within  its  jurisdiction,  not  to  other  High 
Contracting  Parties").  The  nature  of  the  rules  involved  suggests  that  law  of  armed  conflict 
treaties  may  be  of  a  similar  character.  It  is  noteworthy,  for  example,  that  it  appears  to  be  generally 
accepted  that  Common  Article  3  of  the  Geneva  Conventions,  supra  note  15,  binds  parties  other 
than  High  Contracting  Parties. 

37.  U.N.  Commission  on  Human  Rights,  Sub-Comm.  on  the  Promotion  and  Protection  of 
Human  Rights,  Reservations  to  human  rights  treaties,  Final  working  paper  submitted  by  Francoise 
Hampson,  U.N.  Doc.  E/CN.4/Sub.2/2004/42  (July  19,  2004);  see  also  U.N.  Office  of  the  High 
Commissioner  for  Human  Rights,  Fact  Sheet  No.  26,  The  Working  Group  on  Arbitrary  Detention, 
§  VILA  (May  2000),  available  at  http://www.unhcr.org/refworld/docid/479477440.html,  stating 
that 

[g]iven  the  growth  of  multiple  forms  of  machinery  for  the  protection  of  human  rights, 
either  through  resolution  (special  thematic  or  country-oriented  procedures)  or 
through  treaties  (machinery  set  up  under  conventions,  such  as  the  Human  Rights 
Committee  established  under  the  International  Covenant  on  Civil  and  Political  Rights, 
the  Committee  on  the  Elimination  of  Racial  Discrimination  or  the  Committee  against 
Torture)  ...  it  [was]  necessary  to  lay  down  rules  for  coordination  in  order  to  prevent 
duplication  in  the  consideration  of  cases.  These  rules  are  in  accordance  with  the 
principle  non  bis  in  idem,  under  which  two  bodies  may  not  simultaneously  consider  a 
single  case  involving  the  same  persons,  subject-matter  and  cause  of  action. 

38.  Legal  Consequences  of  the  Construction  of  a  Wall  in  the  Occupied  Palestinian  Territory, 
Advisory  Opinion,  supra  note  12. 

39.  Armed  Activities  on  the  Territory  of  the  Congo,  supra  note  27. 


516 


Fran$oise  J.  Hampson 


40.  In  the  first  two  cases  brought  by  Cyprus  against  Turkey,  the  European  Commission 
of  Human  Rights  determined  that,  as  Turkey  had  not  derogated,  the  only  grounds  for  deten- 
tion were  those  set  out  in  Article  5  of  the  European  Convention  for  Human  Rights;  this 
meant  that  the  detention  of  prisoners  of  war  was  unlawful.  In  the  report  of  the  Commission,  two 
of  its  members  suggested  that  the  law  of  armed  conflict  became  applicable  by  virtue  of  the  facts 
and  should  have  been  taken  into  account  with  or  without  derogation.  Cyprus  v.  Turkey,  App. 
Nos.  6780/74  &  6950/75, 2  Eur.  Comm'n  H.R.  125  (1975).  See  also  Khamidov  v.  Russia,  App.  No. 
721 18/01,  Eur.  Ct.  H.R.  (Oct.  23, 2006);  Isayeva  v.  Russia,  App.  No.  57950/00, 41  Eur.  H.R.  Rep. 
38,  para.  191  (2005)  (Eur.  Ct.  H.R.);  Khashiyev  et  al.  v.  Russia,  App.  Nos.  57942/00  &  57945/00, 
42  Eur.  H.R.  Rep.  20  (2005)  (Eur.  Ct.  H.R.);  Isayeva  et  al.  v.  Russia,  App.  Nos.  57947/00,  57948/ 
00  &  57949/00,  41  Eur.  H.R.  Rep.  39  (2005)  (Eur.  Ct.  H.R.). 

41.  The  Greek  Case,  App.  Nos.  3321/67, 3322/67, 3323/67  &  3344/67, 12  Y.B  Eur.  Conv.  on  H.R. 
1, 4  (Eur.  Comm'n  on  H.R.);  General  Comment  29,  supra  note  24,  para.  10  (stating  that "  [although 
it  is  not  the  function  of  the  Human  Rights  Committee  to  review  the  conduct  of  a  State  party  under 
other  treaties,  in  exercising  its  functions  under  the  Covenant  the  Committee  has  the  competence  to 
take  a  State  party's  other  international  obligations  into  account  when  it  considers  whether  the  Cov- 
enant allows  the  State  party  to  derogate  from  specific  provisions  of  the  Covenant"). 

42.  The  Greek  Case,  supra  note  41;  see  also  European  Court  of  Human  Rights,  Brannigan  & 
McBride  v.  United  Kingdom,  App.  Nos.  14553/89  &  14554/89,  258  Eur.  Ct.  H.R.  (ser.  A)  29, 
para.  43  (1993)  ("  [I]  t  falls  to  each  Contracting  State,  with  its  responsibility  for  'the  life  of  [its]  na- 
tion' to  determine  whether  that  life  is  threatened  by  a  'public  emergency'  and,  if  so,  how  far  it  is 
necessary  to  go  in  attempting  to  overcome  the  emergency");  Ireland  v.  United  Kingdom,  App. 
No.  5310/71,  2  Eur.  H.R.  Rep.  25  (1980)  (Eur.  Ct.  of  H.R.) ;  Rosalyn  Higgins,  Derogations  under 
Human  Rights  Treaties,  48  BRITISH  YEAR  BOOK  OF  INTERNATIONAL  LAW  281  (1976-77);  JOAN 

M.  Fitzpatrick,  Human  Rights  in  Crisis  (1994). 

43.  See,  e.g.,  General  Comment  29,  supra  note  24,  para.  17,  noting  that 

[i]n  paragraph  3  of  article  4  [International  Covenant  on  Civil  and  Political  Rights], 
States  parties,  when  they  resort  to  their  power  of  derogation  under  article  4,  commit 
themselves  to  a  regime  of  international  notification.  A  State  party  availing  itself  of  the 
right  of  derogation  must  immediately  inform  the  other  States  parties,  through  the 
United  Nations  Secretary- General,  of  the  provisions  it  has  derogated  from  and  of  the 
reasons  for  such  measures. 

44.  Any  reference  to  torture  should  be  taken  as  also  including  cruel,  inhuman  or  degrading 
treatment  or  punishment. 

45.  International  Covenant  on  Civil  and  Political  Rights,  supra  note  23,  art.  4(2);  European 
Convention  for  Human  Rights,  supra  note  12,  arts.  12(2)  &  15(2);  American  Convention  on  Hu- 
man Rights,  supra  note  23,  art.  27(2). 

46.  General  Comment  29,  supra  note  24,  para.  4  (the  principle  of  proportionality  includes 
elements  of  severity,  duration  and  scope);  see  Lawless  v.  Ireland  (No.  3),  App.  No.  332/57, 1  Eur. 
H.R.  Rep.  15,  para.  28  (1961)  (Eur.  Ct.  of  H.R.)  (confirming  the  determination  by  the  European 
Commission  of  Human  Rights  that  Article  15  of  the  European  Convention  for  Human  Rights 
should  be  interpreted  in  the  light  of  its  "natural  and  customary"  meaning,  the  European  Court  of 
Human  Rights  defined  "time  of  public  emergency"  as  "an  exceptional  situation  of  crisis  or  emer- 
gency which  affects  the  whole  population  and  constitutes  a  threat  to  the  organised  life  of  the 
community  of  which  the  State  is  composed");  The  Greek  Case,  supra  note  41;  Handyside  v. 
United  Kingdom,  App.  No.  5493/72, 1  Eur.  H.R.  Rep.  737  (1976)  (Eur.  Ct.  of  H.R.)  (establishing 
a  three-tier  test:  "reasonableness"  (see,  e.g.,  European  Convention  for  Human  Rights,  supra  note 
11,  arts.  5(3)  &  6(1)),  "necessity"  (see,  e.g.,  id.,  art.  10(2))  and  "indispensability");  McCann  and 


517 


Is  Human  Rights  Law  of  Any  Relevance  to  Military  Operations  in  Afghanistan? 

Others  v.  United  Kingdom,  App.  No.  18984/91,  21  Eur.  Ct.  H.R.  (ser.  A)  97,  para.  149  (1995), 
where  the  Court  noted  that 

the  use  of  the  term  "absolutely  necessary"  in  Article  [2(2)]  indicates  that  a  stricter  and 
more  compelling  test  of  necessity  must  be  employed  from  that  normally  applicable 
when  determining  whether  state  action  is  "necessary  in  a  democratic  society"  under 
paragraph  2  of  Articles  8  to  1 1 . . .  of  the  Convention.  In  particular,  the  force  used  must 
be  strictly  proportionate  to  the  achievement  of  the  aims  set  out  in  sub-paragraphs  2(a), 
(b)  and(c)  of  Article  2. 

47.  International  Covenant  on  Civil  and  Political  Rights,  supra  note  23,  art.  9(4);  European 
Convention  for  Human  Rights,  supra  note  12,  art.  5(4);  American  Convention  on  Human  Rights, 
supra  note  23,  arts.  25(1)  &  27(2);  Habeas  Corpus  in  Emergency  Situations,  Advisory  Opinion  OC- 
8/87,  1987  Inter-Am.  Ct.  H.R.  (ser.  A)  No.  8  (Jan.  30,  1987);  Siracusa  Principles,  supra  note  28, 
para.  70(b)  (stating  "[n]o  person  shall  be  detained  for  an  indefinite  period  of  time,  whether  de- 
tained pending  judicial  investigation  or  trial  or  detained  without  charge . . .");  General  Comment 
29,  supra  note  24,  para.  16  ("In  order  to  protect  non-derogable  rights,  the  right  to  take  proceed- 
ings before  a  court  to  enable  the  court  to  decide  without  delay  on  the  lawfulness  of  detention, 
must  not  be  diminished  by  a  State  party's  decision  to  derogate  from  the  Covenant");  see  also 
A(FC)  and  Others(FC)  v.  Secretary  of  State  for  the  Home  Department  [2004]  UKHL  56,  avail- 
able at  http://www.unhcr.org/refworld/docid/42ef723c4.html;  Boumediene  v.  Bush,  128  S.Ct. 
2229  (2008)  (holding  that,  the  procedures  laid  out  in  the  Detainee  Treatment  Act  are  not  ade- 
quate substitutes  for  the  habeas  writ,  the  Military  Commissions  Act  of  2006  operates  as  an  un- 
constitutional suspension  of  that  writ.  The  detainees  were  not  barred  from  seeking  habeas  or 
invoking  the  Suspension  Clause  merely  because  they  had  been  designated  as  "enemy  combat- 
ants" or  held  at  Guantanamo  Bay,  Cuba). 

48.  General  Comment  29,  supra  note  24. 

49.  J<£,para.  2. 

50.  Id.,  para.  5. 

51.  Id.,  para.  9. 

52.  Id.  See  also  THEODOR  MERON,  HUMAN  RIGHTS  AND  HUMANITARIAN  NORMS  AS 

Customary  Law  (1989);  Theodor  Meron,  The  Humanization  of  International  Law 
(2006). 

53.  General  Comment  29,  supra  note  24,  para.  7. 

54.  Id.,  paras.  7  &8. 

55.  Id.,  para.  13. 

56.  Id.,  para.  13(b). 

57.  See,  e.g.,  Concluding  Observations  of  the  Human  Rights  Committee:  United  States  of 
America,  supra  note  29  (covering  a  wide  range  of  issues  regarding  the  International  Covenant  on 
Civil  and  Political  Rights  in  relation  to  detention  during  armed  conflicts  in  Iraq,  Afghanistan  and 
other  overseas  locations,  the  Committee  only  made  a  passing  reference  in  paragraph  14  to  "alleged 
cases  of  suspicious  death  in  custody"  although  numerous  media  and  human  rights  organization 
reports  indicate  a  number  of  suspicious  deaths  of  those  held  by  the  United  States  in  the  Bagram 
Theatre  Internment  Facility  in  Iraq  (see,  e.g.,  Tim  Golden,  In  U.S.  Report,  Brutal  Details  of  2  Afghan 
Inmates  Deaths,  NEW  YORK  TIMES,  May  20,  2005,  at  Al,  available  at  http://www.nytimes.com/ 
2005/05/20/international/asia/20abuse.html?ex=  1 27424 1 600&en=4579c  1 46cb  1 4cfd6&ei=5088) ). 

58.  The  United  States  and  the  United  Kingdom  (Report  of  the  Human  Rights  Committee, 
U.N.  Doc.  A/50/40  (Oct.  3,  1995))  and  France  (Report  of  the  Human  Rights  Committee,  U.N. 
Doc.  A/51/40  (Sept.  16,  1996)). 

59.  This  further  weakens  any  US  claim  to  be  a  persistent  objector. 

518 


FrangoiseJ.  Hampson 


60.  See,  e.g.,  Suarez  de  Guerrero  v.  Colombia,  Communication  No.  45/1979,  Human  Rights 
Committee,  U.N.  Doc.  CCPR/C/OP/1,  at  112  (Mar.  31,  1982). 

61.  Concluding  Observations  of  the  Human  Rights  Committee:  Israel,  U.N.  Doc.  CCPR/C/ 
79/Add.93  (Aug.  18,  1998);  Concluding  Observations  of  the  Human  Rights  Committee:  Leba- 
non, U.N.  Doc.  CCPR/C/79/Add.78  (Apr.  1,  1977);  Concluding  Observations  of  the  Human 
Rights  Committee:  Syrian  Arab  Republic,  U.N.  Doc.  CCPR/CO/71/SYR  (Apr.  24,  2001);  Con- 
cluding Observations  of  the  Human  Rights  Committee:  Serbia,  U.N.  Doc.  CCPR/CO/81/SEMO 
(Aug.  12,  2004). 

62.  Legal  Consequences  of  the  Construction  of  a  Wall  in  the  Occupied  Palestinian  Territory, 
Advisory  Opinion,  supra  note  12,  para.  106-13. 

63.  Id.,  para.  106. 

64.  See,  e.g.,  Judicial  Guarantees  in  States  of  Emergency,  Advisory  Opinion  OC-9/87,  1987 
Inter- Am.  Ct.  H.R.  (ser.  A)  No.  9  (Oct.  6, 1987);  Report  on  Terrorism  and  Human  Rights,  Inter- 
Am.  C.H.R.,  OEA/Ser.L/V/II.l  16,  doc.  5,  rev.  1  corr.  (Oct.  22,  2002). 

65.  See  generally  Abella  v.  Argentina,  supra  note  24,  paras.  160-61;  Las  Palmeras  v.  Colom- 
bia, Preliminary  Objections,  Judgment,  2000  Inter-Am.  Ct.  H.R.  (ser.  C)  No.  67  (Feb.  4,  2000); 
Bamaca-Velasquez  v.  Guatemala,  2000  Inter-Am  Ct.  H.R.  (ser.  C)  No.  70  (Nov.  25, 2000);  Coard 
et  al.  v.  United  States,  Case  10.951,  Inter-Am.  C.H.R.,  Report  No.  109/99  (Sept.  29, 1999);  Report 
on  the  Situation  of  Human  Rights  in  Colombia,  Inter- Am.  C.H.R.,  OEA/Ser.L/V/II.102,  doc.  9, 
rev.  1  (Feb.  26, 1999). 

66.  Tablada  Case,  Case  1 1.137,  Inter- Am.  C.H.R.,  Report  No.  55/97,  Argentina,  OEA/Ser/L/ 
V/II.97,  doc.  38  (Oct.  30,  1997);  Abella  v.  Argentina,  supra  note  24;  Avilan  v.  Colombia,  Case 
11.142,  Inter-Am.  C.H.R.,  Report  No.  26/97,  OEA/Ser.L/V/II.98,  doc.  6  rev.  (Apr.  13,  1998); 
Saavedra  v.  Peru,  Case  10.548,  Inter-Am.  C.H.R.,  Report  No.  38/97,  OEA/Ser.L/V/II.98,  doc.  6 
rev.  (Apr.  13,  1998);  Bamaca-Velasquez  v.  Guatemala,  supra  note  65;  Cea  et  al.  v.  El  Salvador, 
Case  10.480,  Inter- Am.  C.H.R.,  Report  No.  1/99,  OEA/Ser.L/V/II.95,  doc.  7  rev.  (Jan.  27, 1999); 
Ellacuria,  S.J.,  et  al.  v.  El  Salvador,  Case  10.488,  Inter-Am.  C.H.R.,  Report  No.  136/99,  OEA/ 
Ser.L/V/II.106,  doc.  3  (Dec.  22, 1999);  Las  Palmeras  v.  Colombia,  Merits,  Judgment,  2001  Inter- 
Am.  Ct.  H.R.  (ser.  C)  No.  90  (Dec.  6, 2001);  Monsignor  Oscar  Arnulfo  Romero  y  Galdamez  v.  El 
Salvador,  Case  11.481,  Inter-Am.  C.H.R.  Report  No.  37/00,  OEA/Ser.L/V/II.106,  doc.  3  rev. 
(1999);  Riofrio  Massacre,  Colombia,  Case  11.654,  Inter-Am.  C.H.R.,  Report  No.  62/01,  OEA/ 
Ser.L/V/II.lll,  doc.  20  rev.  (Apr.  6,  2001). 

67.  Cyprus  v.  Turkey,  supra  note  40. 

68.  See  infra  Section  IV. 

69.  International  Covenant  on  Civil  and  Political  Rights,  supra  note  23,  art.  6;  American 
Convention  on  Human  Rights,  supra  note  23,  art.  4. 

70.  International  Covenant  on  Civil  and  Political  Rights,  supra  note  23,  art.  4;  American  Con- 
vention on  Human  Rights,  supra  note  23,  art.  27;  General  Comment  29,  supra  note  24,  para.  7. 

71.  It  should  be  noted  that  this  would  require  human  rights  bodies  to  be  able  to  determine  the 
often  legally  difficult  and  politically  contentious  question  of  whether  the  law  of  armed  conflict  was 
applicable  and  whether  the  conflict  was  an  international  armed  conflict  or  a  non-international 
armed  conflict.  They  would  also,  presumably,  have  to  decide  whether  they  could  rely  on  customary 
rules  of  the  law  of  armed  conflict  and  to  determine  what  they  are.  See  Kenneth  Watkin,  Controlling 
the  Use  of  Force:  A  Role  for  Human  Rights  Norms  in  Contemporary  Armed  Conflict,  98  AMERICAN 
JOURNAL  OF  INTERNATIONAL  LAW  1  (2004);  David  Kretzmer,  Targeted  Killing  of  Suspected  Terrorists: 
Extra-judicial  Executions  or  Legitimate  Means  of  Defence?,  16  EUROPEAN  JOURNAL  OF 
INTERNATIONAL  LAW  171  (2005).  See  also  the  2007  Special  Issue  of  the  Israel  Law  Review  on  the  par- 
allel applicability  of  HR  and  IHL.  See  especially  the  contributions  by  David  Kretzmer,  Rotem  Giladi 


519 


Is  Human  Rights  Law  of  Any  Relevance  to  Military  Operations  in  Afghanistan? 

and  Yuval  Shany,  Introduction  to  the  Symposium  on  International  Humanitarian  Law  and  Inter- 
national Human  Rights  Law,  40  ISRAEL  LAW  REVIEW  306  (2007);  Cordula  Droege,  The  Interplay 
between  International  Humanitarian  Law  and  International  Human  Rights  Law  in  Situations  of 
Armed  Conflict,  id.  at  310;  and  Noam  Lubell,  Parallel  Application  of  International  Humanitarian 
Law  and  International  Human  Rights  Law:  An  Examination  of  the  Debate,  id.  at  648. 

72.  European  Convention  for  Human  Rights,  supra  note  12,  art.  2. 

73.  Id.,  art.  15. 

74.  Sperduti  &  Trechsel  dissenting  in  Cyprus  v.  Turkey,  supra  note  40;  contrast  derogation, 
which  is  a  facility  available  to  States  and  therefore  optional.  If  it  is  not  invoked,  there  is  no  basis 
on  which  the  human  rights  body  can  do  so  proprio  motu. 

75.  Some  of  the  reasoning  of  the  Court  on  occasion  suggests  that,  knowingly  or  otherwise,  it 
has  been  influenced  by  law  of  armed  conflict  reasoning.  See,  e.g.,  Ergi  v.  Turkey,  App.  No.  238 1 8/ 
94,  32  Eur.  H.R.  Rep.  388  (1998)  (Eur.  Ct.  H.R.). 

76.  General  Comment  31,  para.  10,  supra  note  30;  International  Covenant  on  Civil  and  Po- 
litical Rights,  supra  note  23,  art.  9;  American  Convention  on  Human  Rights,  supra  note  23,  art.  7. 

77.  International  Covenant  on  Civil  and  Political  Rights,  supra  note  23,  art.  4;  American 
Convention  on  Human  Rights,  supra  note  23,  art.  4(1). 

78.  General  Comment  29,  supra  note  24,  paras.  7-8,  13  &  16;  Advisory  Opinion  OC-9/87, 
supra  note  64;  see  also  Advisory  Opinion  OC-8/87,  supra  note  47. 

79.  The  reservation  made  by  India  to  Article  9  and  the  derogation  under  Article  9  made  by 
the  United  Kingdom  suggest  they  think  that  administrative  detention  or  internment  requires 
derogation.  U.N.  Human  Rights  Committee,  General  Comment  No.  8  of  June  30, 1982,  on  Right 
to  Liberty  and  Security  of  Persons,  U.N.  Doc.  HRI/GEN/1/Rev.l  at  8  (1994),  does  not  make  it 
clear  whether  administrative  detention  can  be  compatible  with  Article  9. 

80.  European  Convention  for  Human  Rights,  supra  note  12,  art.  5. 

81.  Lawless  v.  Ireland,  supra  note  46.  It  is  clear  from  the  reasoning  of  the  Court  in  Ireland  v. 
United  Kingdom,  supra  note  42,  that  internment  in  Northern  Ireland  would  have  been  unlawful 
but  for  the  notice  of  derogation.  In  Brogan  &  Others  v.  United  Kingdom,  App.  Nos.  11209/84, 
11234/84,  11266/84  &  11386/85,  11  Eur.  H.R.  Rep.  117  (1988)  (Eur.  Ct.  H.R.),  the  European 
Commission  of  Human  Rights  found  a  violation  of  Article  5  of  the  Convention  on  account  of 
the  length  (rather  than  the  ground)  of  detention.  The  United  Kingdom  then  submitted  a  no- 
tice of  derogation  and,  in  Brannigan  v.  United  Kingdom,  supra  note  42,  detention  under  the 
same  legislation  was  subsequently  found  not  to  violate  the  Convention,  taking  account  of  the 
derogation.  Perhaps  the  most  dramatic  example  is  the  Commission  decision  in  Cyprus  v.  Tur- 
key, supra  note  40,  in  which  the  Commission  determined  that,  in  the  absence  of  a  notice  of  dero- 
gation, detention  of  prisoners  of  war  during  an  international  armed  conflict  was  a  violation  of 
the  Convention. 

82.  See  generally  Nancie  Prud'homme,  Lex  specialis:  Oversimplifying  a  More  Complex  and 
Multifaceted  Relationship?,  40  ISRAEL  LAW  REVIEW  355  (2007);  Francoise  Hampson,  Other  ar- 
eas of  customary  law  in  relation  to  the  Study,  in  PERSPECTIVES  ON  THE  ICRC  STUDY  ON 
Customary  International  Humanitarian  Law  68  (Elizabeth  Wilmshurst  &  Susan  Breau 
eds.,  2007). 

83.  By  virtue  of  the  limitation  clause,  a  State  might  be  able  to  justify  the  necessity  of  unusual 
restrictions  on  the  right  to  demonstrate  during  a  situation  of  conflict.  Similar  considerations 
would  apply  to  freedom  of  expression.  These  would  be  principally  or  exclusively  relevant  in  non- 
international  armed  conflicts  in  national  territory. 

84.  Watkin,  supra  note  71. 


520 


Framboise  ].  Hampson 


85.  Extraterritorial  Application  of  Human  Rights  Treaties  (Fons  Coomans  &  Menno 
T.  Kamminga  eds.,  2004);  Michael  J.  Dennis,  Application  of  Human  Rights  Treaties  Extraterritorially 
in  Times  of  Armed  Conflict  and  Military  Occupation,  99  AMERICAN  JOURNAL  OF  INTERNATIONAL 
LAW  119  (2005);  Michael  J.  Dennis  &  Andre  M.  Surena,  Application  of  the  International  Covenant  on 
Civil  and  Political  Rights  in  Times  of  Armed  Conflict  and  Military  Occupation:  The  Gap  between  Legal 
Theory  and  State  Practice,  13  EUROPEAN  HUMAN  RIGHTS  LAW  REVIEW  714  (2008). 

86.  Trial  of  Pakistani  Prisoners  of  War  (Pak.  v.  India),  1973  I.C.J.  328  (Dec.  15);  Concern- 
ing Military  and  Paramilitary  Activities  in  and  against  Nicaragua  (Nicar.  v.  U.S.),  1986  I.C.J.  14 
(June  27);  Armed  Activities  on  the  Territory  of  the  Congo,  supra  note  27;  Armed  Activities  on 
the  Territory  of  the  Congo  (New  Application:  2002)  (Dem.  Rep.  Congo  v.  Rwanda),  2006  I.C.J. 
(Feb.  3);  Legality  of  the  Use  of  Force  (Serb.  &  Mont.  v.  Belg.),  2004  I.C.J.  720  (Dec.  15). 

87.  South  West  Africa  (Eth.  v.  S.  Afr.;  Liber,  v.  S.  Afr.)  Second  Phase,  1966  I.C.J.  6  (July  18). 

88.  Comments  by  the  Government  of  the  United  States  of  America  on  the  Concluding  Ob- 
servations of  the  Human  Rights  Committee  2,  U.N.  Doc.  CCPR/C/USA/CO/3/Rev.l/Add.l 
(Feb.  12,  2008);  Israel  has  maintained  this  position  consistently  before  the  UN  Human  Rights 
Committee  in  relation  to  the  International  Covenant  on  Civil  and  Political  Rights  and  before  the 
Committee  on  Economic,  Social  and  Cultural  Rights  under  the  International  Covenant  on  Eco- 
nomic, Social  and  Cultural  Rights.  See  also  Dennis,  supra  note  85:  his  objection  is  based  in  part 
on  the  interpretation  of  the  phrase  "within  its  [the  State's]  territory  and  subject  to  its  jurisdic- 
tion" in  Article  2  of  the  International  Covenant  on  Civil  and  Political  Rights,  which  the  Human 
Rights  Committee  interprets  as  containing  a  disjunctive  "and."  In  other  words,  the  Human 
Rights  Committee  interprets  "and"  as  "or." 

89.  Legal  Consequences  of  the  Construction  of  a  Wall  in  the  Occupied  Palestinian  Territory, 
Advisory  Opinion,  supra  note  12. 

90.  Armed  Activities  on  the  Territory  of  the  Congo,  supra  note  27. 

91.  General  Comment  31,  supra  note  30,  para.  10.  When  examining  some  State  reports,  the 
Human  Rights  Committee  has  expressly  referred  to  occupation;  in  other  cases,  it  has  described  a 
form  of  control  that  amounts  to  occupation,  e.g.,  areas  in  Lebanon  over  which  Israel  exercised 
effective  control.  See  Concluding  Observations  of  the  Human  Rights  Committee:  Israel,  supra 
note  61,  para.  10;  contrast  Concluding  Observations  of  the  Human  Rights  Committee:  Lebanon, 
supra  note  61,  paras.  4-5,  which  refers  to  occupation;  alleged  violations  in  Lebanon  at  the  hands 
of  Syrian  security  forces,  discussed  in  Concluding  Observations  of  the  Human  Rights  Commit- 
tee: Syrian  Arab  Republic,  supra  note  61,  para.  10;  the  issue  of  Moroccan  control  over  Western 
Sahara  has  been  raised  principally  in  the  context  of  the  exercise  of  the  right  to  self-determination: 
Concluding  Observations  of  the  Human  Rights  Committee:  Morocco  para.  9,  U.N.  Doc.  CCPR/ 
C/79/Add.ll3  (Nov.  1,  1999)  and  Concluding  Observations  of  the  Human  Rights  Committee: 
Morocco  paras.  8  8c  18,  U.N.  Doc.  CCPR/CO/82/MAR  (Dec.  1,  2004). 

92.  Geneva  Convention  IV,  supra  note  15,  art.  64.  It  should  be  noted  that  one  of  Israel's  first 
acts  in  the  Occupied  Territories  was  to  abolish  the  death  penalty,  which  was,  technically,  a  breach 
of  the  law  of  armed  conflict.  While  the  occupying  power  is  in  a  position  of  authority,  it  does  not 
have  the  claim  to  legitimacy  of  the  sovereign. 

93.  Lopez  Burgos  v.  Uruguay,  Communication  No.  12/52,  Human  Rights  Committee, 
U.N.  GAOR,  36th  Sess.,  Supp.  No.  40,  at  176,  U.N.  Doc.  A/36/40  (1981);  Lopez  Burgos  v.  Uru- 
guay, No.  52/1979,  Views  of  the  Human  Rights  Committee,  U.N.  Doc.  CCPR/C/13/D/52/1979 
(July  29,  1981).  See  generally  Dominic  McGoldrick,  Extraterritorial  Application  of  the  Interna- 
tional Covenant  on  Civil  and  Political  Rights,  and  Martin  Scheinin,  Extraterritorial  Effect  of  the 
International  Covenant  on  Civil  and  Political  Rights,  both  in  EXTRATERRITORIAL  APPLICATION 
OF  HUMAN  RIGHTS  TREATIES,  supra  note  85,  at  41  &  73,  respectively. 


521 


Is  Human  Rights  Law  of  Any  Relevance  to  Military  Operations  in  Afghanistan? 

94.  General  Comment  31,  supra  note  30,  paras.  3  8c  10. 

95.  Id.,  para.  10. 

96.  Alexandre  et  al.  v.  Cuba,  Case  1 1.589,  Inter- Am.  C.H.R.,  Report  No.  86/99,  OEA/Ser.L/ 
V/l  1.106,  doc.  3  rev.  at  586  (1999). 

97.  Disabled  Peoples'  International  et  al.  v.  United  States,  Case  9213,  Inter-Am.  C.H.R.  184,  OEA/ 
Ser.L/V/II.71,  doc.  9  rev.  1  ( 1987)  (concerning  an  attack  on  an  asylum  in  Grenada  by  US  military  air- 
craft during  the  US  invasion  of  Grenada);  Coard  et  al.  v.  United  States,  supra  note  65  (relating  to  per- 
sons detained  by  US  forces  during  the  intervention  in  Grenada:  the  Commission  held  that  the  test  for 
"within  the  jurisdiction"  was  whether  a  person  is  subject  to  the  authority  and  control  of  a  State). 

98.  Salas  v.  United  States,  Case  10.573,  Inter-Am.  C.H.R.,  Report  No.  31/93,  OEA/Ser.L/V/ 
11.85,  doc.  9  rev.  (1994). 

99.  See  Center  for  Constitutional  Rights,  available  at  http://ccrjustice.org/newsroom/ 
press-releases/inter-american-commission-human-rights-extends-precautionary-measures 
-guant%C3%Al  (last  visited  May  18,  2009). 

100.  Al-Skeini  8c  Others  v.  Secretary  of  State  for  Defence,  [2004]  EWHC  291 1  paras.  265  & 
267.  Al-Skeini  8c  Others  v.  Secretary  of  State  for  Defence  [2007]  UKHL  26.  In  particular,  the  deci- 
sion in  Bankovic,  supra  note  21,  has  attracted  an  unusual  degree  of  criticism  in  academic  quar- 
ters; see  generally  Rick  Lawson,  Life  After  Bankovic:  On  the  Extraterritorial  Application  of  the 
European  Convention  on  Human  Rights,  in  EXTRATERRITORIAL  APPLICATION  OF  HUMAN 

Rights  Treaties,  supra  note  85,  at  83. 

101.  M.  v.  Germany,  App.  No.  10307/83,  37  Eur.  Comm'n  H.R.  Dec.  8c  Rep.  113  (1984); 
Stocke  v.  Germany,  App.  No.  1 1755/85,  199  Eur.  Ct.  H.R.  (ser.  A)  (1991). 

102.  Loizidou  v.  Turkey,  1996-VI  Eur.  Ct.  H.R.  2216. 

103.  Ilascu  v.  Moldova  8c  Russia,  App.  No.  48787/99,  2004  Eur.  Ct.  H.R.  318  (2004). 

104.  Separate  Opinion  of  Lord  Brown  of  Eaton-under-Heywood,  Al-Skeini  8c  Others  v.  Sec- 
retary of  State  for  Defence,  supra  note  100;  Al  Skeini  8c  Ors,  R  (on  the  application  of)  v.  Secretary 
of  State  for  Defence,  Court  of  Appeal  -  Administrative  Court,  Dec.  14,  2004,  [2005]  HRLR  3, 
[2005]  2  W.L.R.  1401,  [2004]  EWHC  291 1  (Admin),  [2005]  UKHRR  427,  [2005]  ACD  51. 

105.  The  treaty  texts  require  that  the  victim  of  the  alleged  violation  (not  the  perpetrator) 
should  have  been  within  the  (ICCPR:  "territory"  and)  jurisdiction  of  the  respondent  State.  In 
Bankovic  v.  Belgium,  supra  note  21,  para.  37,  the  Court  referred  to  the  fact  that  the  respondent 
governments  stated  that  "[t]he  arrest  and  detention  of  the  applicants  outside  of  the  territory  of 
the  respondent  State  in  the  Issa  and  Ocalan  cases  (Issa  and  Others  v.  Turkey,  (dec),  no.  31821/96, 
30  May  2000,  unreported  and  Ocalan  v.  Turkey,  (dec),  no.  46221/99, 14  Dec.  2000,  unreported) 
constituted,  according  to  the  Governments,  a  classic  exercise  of  such  legal  authority  or  jurisdic- 
tion over  those  persons  by  military  forces  on  foreign  soil." 

106.  Ocalan  v.  Turkey  (dec),  App.  No.  46221/99,  Dec.  14,  2000  (unreported). 

107.  Bankovic  v.  Belgium,  supra  note  21. 

108.  Issa  8c  Others  v.  Turkey,  App.  No.  31821/96, 41  Eur.  Ct.  H.R.  Rep.  567  (2004). 

109.  Isaak  v.  Turkey,  App.  No.  44587/98,  Eur.  Ct.  H.R.  (June  24, 2008).  The  Court,  in  its  rea- 
soning, made  no  reference  to  the  fact  that  the  killing  occurred  in  the  buffer  zone,  that  is  to  say 
outside  Turkish  territory  and  outside  the  territory  over  which  Turkish  armed  forces  are  said  to 
exercise  control  in  northern  Cyprus.  In  its  admissibility  decision,  Isaak  v.  Turkey,  App.  No. 
44587/98,  Eur.  Ct.  H.R.  (Sept.  28,  2006),  the  issue  was  discussed.  The  Court  appears  to  have 
founded  its  jurisdiction  on  the  fact  that  Turkish  Cypriot  policemen  had  taken  an  active  part  in  the 
beating  to  death  of  the  applicant,  thereby  bringing  him  within  the  jurisdiction  of  Turkey,  id.  at  2 1 . 

1 10.  R  (on  the  application  of  Al-Jedda)  (FC)  v.  Secretary  of  State  for  Defence  [2007]  UKHL  58 
(but  it  should  be  noted  that  he  was  detained  after  the  passage  of  UN  Security  Council  Resolution 


522 


Fran$oiseJ.  Hampson 


1546,  June  8,  2004,  which  suggested  that  the  Security  Council,  at  least,  thought  that  Iraq  was  no 
longer  occupied,  legally  speaking);  Al-Skeini  &  Others  v.  Secretary  of  State  for  Defence,  supra  note 
100;  Al  Skeini  &  Ors,  R  (on  the  application  of)  v.  Secretary  of  State  for  Defence,  supra  note  104. 

111.  For  example,  States  which  assisted  Kuwait  in  expelling  the  Iraqi  occupying  forces  in 
1990/91. 

112.  In  other  words,  they  may  have  ratified  different  human  rights  treaties. 

113.  This  would  clearly  be  the  case  where  the  right  in  question  was  regarded  as  having  ius 
cogens  status. 

1 14.  Afghanistan  has  ratified  the  International  Convention  on  the  Elimination  of  All  Forms 
of  Racial  Discrimination;  the  International  Convention  on  Economic,  Social  and  Cultural 
Rights;  the  International  Covenant  on  Civil  and  Political  Rights;  the  Convention  of  the  Elimina- 
tion of  All  Forms  of  Discrimination  Against  Women;  the  Convention  against  Torture  and  Other 
Cruel,  Inhuman  or  Degrading  Treatment  or  Punishment;  and  the  Convention  on  the  Rights  of 
the  Child. 

115.  See  supra  note  79  and  accompanying  text. 

1 16.  Charkaoui  v.  Canada  (Citizenship  and  Immigration),  [2007]  1  S.C.R.  350,  2007  SCC  9. 

117.  Concluding  Observations  of  the  Human  Rights  Committee:  Kosovo  (Serbia),  U.N.  Doc. 
CCPR/C/UNK/CO/1  (Aug.  14, 2006).  It  is  not  clear  whether  the  report  was  requested  and  made 
by  the  United  Nations  Interim  Administration  Mission  in  Kosovo  (UNMIK)  in  right  of  Serbia  or 
UNMIK  as  the  authority  exercising  effective  control  over  the  territory.  The  situation  in  Kosovo 
was  unlike  the  majority  of  peace  support  operations  because  the  UN  was  the  government. 

118.  European  Committee  for  the  Prevention  of  Torture  and  Inhuman  or 
Degrading  Treatment  or  Punishment  (CPT),  16th  General  Report  on  the  CPT's 
ACTIVITIES  35  (2006),  available  at  http://www.cpt.coe.int/EN/annual/rep-16.pdf. 

1 19.  U.N.  Charter  art.  103  ("In  the  event  of  a  conflict  between  the  obligations  of  the  Members 
of  the  United  Nations  under  the  present  Charter  and  their  obligations  under  any  other  interna- 
tional agreement,  their  obligations  under  the  present  Charter  shall  prevail"  (emphasis  added)); 
Questions  of  Interpretation  and  Application  of  the  1971  Montreal  Convention  arising  from  the 
Aerial  Incident  at  Lockerbie  [Provisional  Measures]  (Libya  v.  U.K.),  1992  I.C.J.  3,  15,  para.  39 
(Apr.  14);  Questions  of  Interpretation  and  Application  of  the  1971  Montreal  Convention  arising 
from  the  Aerial  Incident  at  Lockerbie  [Provisional  Measures]  (Libya  v.  U.S.),  1992  I.C.J.  1 14, 126, 
para.  42  (Apr.  14);  see  also  W.  Michael  Reisman,  The  Constitutional  Crisis  in  the  United  Nations,  in 
DEVELOPMENT  OF  THE  ROLE  OF  THE  SECURITY  COUNCIL  399, 407  (Rene-Jean  Dupuyed.,  1993). 

120.  Saramativ.  France,  Germany  &  Norway,  App.  No.  78166/01,  Eur.  Ct.  H.R.  (May  2, 2007) 
(admissibility  decision). 

121.  Sayadi  &  Vinck  v.  Belgium,  Communication  No.  1472/2006,  Human  Rights  Committee, 
U.N.  Doc.  CCPR/C/94/D/1472/2006  (Dec.  29,  2008). 

122.  The  European  Convention  for  Human  Rights  is  a  Council  of  Europe  treaty  and  has  been 
ratified  by  a  significantly  wider  group  of  States. 

123.  Kati  v.  Council  and  Commission,  loined  Cases  C-402/05  P  and  C-4 15/05  P  (Sept.  3, 
2008),  available  at  http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:285 
:0002:0003:EN:PDF. 

124.  Behrami  8t  Behrami  v.  France,  App.  No.  71412/01,  Eur.  Ct.  H.R.  (May  2, 2007)  (admissi- 
bility decision);  Saramati  v.  France,  Germany  &  Norway,  supra  note  120.  These  decisions  have 
been  heavily  criticized,  inter  alia,  for  failing  to  recognize  that  it  is  possible  for  two  entities  (the 
United  Nations  and  an  individual  State)  both  to  bear  responsibility.  See,  e.g.,  Aurel  Sari,  Jurisdic- 
tion and  International  Responsibility  in  Peace  Support  Operations:  The  Behrami  and  Saramati 
Cases,  8  HUMAN  RIGHTS  LAW  REVIEW  151  (2008). 


523 


Is  Human  Rights  Law  of  Any  Relevance  to  Military  Operations  in  Afghanistan? 

125.  This  is  not  always  the  case.  The  United  States  and  the  United  Kingdom  hoped  that  the 
Iraqi  population  would  support  the  invasion  insofar  as  it  resulted  in  the  overthrow  of  the  regime 
of  Saddam  Hussein. 

126.  See  generally,  MICHAEL  MCCLINTOCK,  INSTRUMENTS  OF  STATECRAFT:  U.S.  GUERRILLA 
WARFARE,  COUNTERINSURGENCY  AND  COUNTERTERRORISM,  1940-1990  (1992);  Michael 
McClintock,  Great  Power  Counterinsurgency,  PowerPoint  Presentation  at  Harvard  Kennedy 
School  (2005),  available  at  http://www.hks.harvard.edu/cchrp/programareas/conferences/ 
presentations/McClintock,%20Michael.ppt. 

127.  There  remained  a  problem  with  certain  controversial  killings.  In  some  cases,  they  were 
controversial  because  forces  opened  fire  in  circumstances  thought  to  be  unjustified,  often  as  a  re- 
sult of  a  material  mistake  of  fact.  In  other  cases,  individuals  were  thought  to  be  victims  of  a 
"shoot  to  kill"  policy;  that  is  they  were  shot  rather  than  being  detained.  It  was  also  believed  that 
there  was  collusion  between  elements  in  the  security  forces  and  certain  Protestant  paramilitary 
groups  in  relation  to  certain  killings. 

128.  Headquarters,  Department  of  the  Army  &  Headquarters,  Marine  Corps  Combat  Devel- 
opment Command,  FM  3-24/MCWP  3-33.5,  Counterinsurgency  (2006),  available  at  http:// 
www.usgcoin.org/library/doctrine/COIN-FM3-24.pdf. 

129.  The  author  had  the  great  privilege  of  being  invited  to  participate  in  a  workshop  at  Fort 
Leavenworth  which  examined  an  early  draft  of  the  COIN  manual.  One  of  the  boxes  in  the  man- 
ual gave  an  illustration  from  a  real  situation.  If  the  box  had  not  been  entitled  El  Salvador,  it  would 
not  have  been  possible  to  recognize  the  situation  from  the  facts  given.  The  perspective  was  that 
whatever  side  the  United  States  supports  is,  by  definition,  legitimate  and  any  opponent  illegiti- 
mate. For  operational  purposes,  it  is  important  to  ask  how  a  member  of  the  local  population 
views  the  question  of  legitimacy.  If  the  government  practices  brutal  policies  of  repression,  the 
government  may  have  forfeited  its  legitimacy  in  the  eyes  of  the  population.  That  means  that  the 
first  act  of  assisting  forces  should  be  to  require  the  government  forces  to  "clean  up  their  act"  as  a 
precondition  for  assistance.  The  fact  that  the  United  States  supports  a  particular  government  has 
no  bearing  on  whether  the  conduct  of  that  government  is  such  as  to  win  the  hearts  and  minds  of 
the  population  nor  bearing  on  the  view  of  the  local  population  as  to  legitimacy. 

130.  US  Department  of  Defense,  Military  Commission  Order  No.  1  (Revised),  Procedures  for 
Trials  by  Military  Commissions  of  Certain  Non-United  States  Citizens  in  the  War  Against  Ter- 
rorism (Aug.  31, 2005),  available  at  http://www.defenselink.mil/news/Sep2005/d20050902order 
.pdf;  but  see  AMNESTY  INTERNATIONAL,  MILITARY  COMMISSIONS  FOR  "WAR  ON  TERROR" 
DETAINEES  (2006),  available  at  http://www.amnesty.org/en/library/info/AMR51/050/2006. 

131.  W.M.  v.  Denmark,  App.  No.  17392/90,  Eur.  Comm'nH.R.  (Oct.  14, 1992)  (admissibility 
decision). 

132.  A  possible  model  is  the  Standard  Minimum  Rules  for  the  Treatment  of  Prisoners, 
adopted  by  the  First  United  Nations  Congress  on  the  Prevention  of  Crime  and  the  Treatment  of 
Offenders,  held  at  Geneva  in  1955,  and  approved  by  the  Economic  and  Social  Council  by  its  Res- 
olutions 663  C  (XXIV)  of  31  July  1957  and  2076  (LXII)  of  13  May  1977,  available  at  http:// 
www.unhchr.ch/html/menu3/b/h_comp34.htm.  The  topics  which  would  need  such  guidelines 
include  opening  fire,  detention  (both  grounds  for  and  rights  relating  to,  including  due  process 
guarantees),  treatment  in  detention,  search  and  seizure,  and  the  relationship  with  institutions  of 
civil  society.  A  secondary  category  of  topics,  where  coverage  would  be  useful  but  possibly  not  es- 
sential, could  include  the  role  and  responsibilities  of  private  military/security  companies. 

133.  The  contexts  include  inter-State  armed  conflict,  assistance  to  a  government,  creation  of  a 
government  where  no  effective  government  exists,  occupation,  UN-mandated  operations,  other 
mandated  operations  and  operations  involving  UN  forces. 


524 


Human  Rights  Obligations,  Armed  Conflict 

and  Afghanistan: 
Looking  Back  Before  Looking  Ahead 

Stephen  Pomper* 

I.  Introduction 

On  January  22,  2009,  President  Obama  issued  three  executive  orders  man- 
dating, among  other  things,  a  review  of  US  detention  policy,  a  review  of  US 
interrogation  policy,  and  the  closure  of  the  Guantanamo  Bay  detention  facility  as 
soon  as  practicable  and,  in  any  case,  within  a  year  of  the  order.  With  these  orders, 
the  President  ensured  that  the  US  government  would  revisit  a  whole  range  of  do- 
mestic and  international  legal  positions  governing  its  use  of  force  against  al  Qaeda 
and  the  Taliban,  two  groups  with  which  it  has  been  engaged  in  armed  conflict  since 
late  2001. 

One  issue  which  the  new  administration  may  have  occasion  to  consider  in  the 
context  of  the  above-mentioned  reviews,  and  as  it  contemplates  further  military 
engagement  in  Afghanistan,  is  the  question  of  which  body  of  international  law  gov- 
erns the  use  of  force  by  the  United  States  in  extraterritorial  armed  conflicts — and, 
in  particular,  whether  the  governing  international  legal  regime  is  the  law  of  armed 
conflict,  human  rights  law  or  some  combination  of  the  two.  In  this  area,  the  new 


*  Attorney- adviser,  Office  of  the  Legal  Adviser,  US  Department  of  State.  The  views  expressed  in 
this  essay  are  given  by  the  author  in  his  personal  capacity  and  do  not  necessarily  represent  the 
positions  of  the  US  government  or  the  US  Department  of  State. 


Human  Rights  Obligations,  Armed  Conflict  and  Afghanistan 

administration  will  be  working  against  a  backdrop  of  a  US  government  position 
that  was  vigorously  advanced  by  (though  in  many  respects  it  did  not  originate 
with)  the  Bush  administration  to  the  effect  that  US  human  rights  obligations  do 
not  apply  to  actions  arising  in  extraterritorial  armed  conflicts,  both  because  of 
treaty-based  territorial  limitations  and  because  of  the  doctrine  of  lex  specialis. 

Given  the  work  that  lies  ahead,  it  seems  a  useful  moment  to  pause  and  revisit 
some  of  the  key  legal  and  policy  arguments  advanced  by  the  Bush  administration 
and  in  some  cases  its  allies  or  other  commentators  in  this  sensitive  area.  The  pur- 
pose of  this  article  is  not  either  to  advocate  or  criticize  these  arguments  or  to  offer  a 
view  about  whether  departure  from  them  is  legally  available.  Instead,  it  is  to  lay 
down  a  marker  on  where  the  prior  administration  and  like-minded  participants  in 
the  discussion  of  these  issues  stood  as  the  transition  to  a  new  US  administration  ap- 
proached. As  discussed  in  greater  detail  below,  the  arguments  advanced  by  this 
group  drew  from,  among  other  things,  a  combination  of  observations  about  ( 1 ) 
historical  US  positions  on  the  territorial  limitations  of  human  rights  obligations, 
(2)  uncertainty  in  international  case  law  about  the  extent  to  which  human  rights 
obligations  extend  into  extraterritorial  armed-conflict  situations  and  (3)  practical 
challenges  faced  by  European  allies  operating  within  a  human  rights  legal  frame- 
work in  Afghanistan. 

II.  Overview:  General  Legal  Framework  for  Military  Operations  against  al 

Qaeda  and  the  Taliban  as  of  2008 

By  way  of  background,  it  is  useful  to  review  the  legal  framework  in  which  the 
United  States  conducted  military  operations  against  al  Qaeda  and  the  Taliban  in 
2008.  Between  2001  and  2008,  the  primary  legal  basis  for  the  US  government's  use 
of  force  against  these  groups  remained  largely  the  same,  while  the  legal  framework 
for  its  treatment  of  detainees  changed  dramatically  (with  all  three  branches  of  gov- 
ernment taking  steps  to  provide  additional  measures  of  protection  to  detainees). 
The  US  government's  approach  to  diplomacy  concerning  these  issues  changed  as 
well,  with  an  increasing  emphasis  after  2004  on  outreach  to  European  and  other 
close  allies  to  seek  common  ground  on  the  international  legal  framework  concern- 
ing the  use  of  force  against  transnational  terrorists.  But  despite  important  legal  and 
policy  changes  during  this  period,  including  the  US  Supreme  Court's  2008  deci- 
sion in  Boumediene  v.  Bush,1  which  recognized  the  right  of  Guantanamo  detainees 
to  challenge  the  legality  of  their  detentions  in  US  courts  (albeit  on  constitutional 
rather  than  human  rights  law  grounds),  the  United  States  maintained  its  legal  posi- 
tion with  respect  to  the  non-application  of  its  human  rights  obligations  to  extrater- 
ritorial armed  conflicts. 


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Stephen  Pomper 


From  2001  through  2008,  the  basis  for  operations  rested  on  the  premise  that 
the  United  States  was  in  an  armed  conflict  with  al  Qaeda  and  the  Taliban  in  Af- 
ghanistan— a  conflict  arising  out  of  a  series  of  attacks  against  the  United  States, 
culminating  in  the  attacks  of  September  11,  2001,  to  which  the  United  States  re- 
sponded in  self-defense  as  notified  to  the  UN  Security  Council  in  October  200 1.2 
During  the  ensuing  seven  years,  US  operations  were  divided  between  two  coali- 
tions. Some  US  forces  fought  as  part  of  Operation  Enduring  Freedom  (OEF),  a 
US-led  coalition  that  operated  with  the  consent  of  the  post-Taliban  elected  gov- 
ernment in  Afghanistan.3  Others  fought  under  the  auspices  of  the  International 
Security  Assistance  Force  (ISAF) — a  NATO-led  coalition  that  operated  both  with 
the  consent  of  the  Afghan  government  and  under  a  UN  Security  Council  man- 
date.4 As  a  result,  the  legal  basis  for  US  operations  in  Afghanistan  might  be  de- 
scribed as  "self-defense  plus,"  with  the  "plus"  being  consent  of  the  Afghan 
government  and,  in  the  ISAF  case,  a  UN  Security  Council  mandate.  As  a  matter  of 
domestic  law,  Congress  recognized  the  US  government's  right  to  use  force  in  self- 
defense  in  its  Authorization  to  Use  Military  Force  dated  September  18,  200 1,5  and 
the  Supreme  Court  confirmed  its  right  to  detain  combatants  as  an  incident  of  its 
right  to  use  force  in  its  Hamdi  v.  Rumsfeld  decision  in  2004.6 

Questions  about  how  to  classify  the  conflict,  and  what  protections  detainees 
should  receive,  were  the  source  of  more  pronounced  movement  in  the  law.  The 
initial  position  of  the  US  government  at  the  beginning  of  the  fighting  in  Afghani- 
stan was  to  treat  the  conflicts  with  both  groups  as  international  in  character,  given 
that  neither  was  limited  to  a  conflict  within  the  territory  of  a  single  State,  but  to 
deny  detainees  captured  in  the  conflicts  protections  under  the  Geneva  Conven- 
tions.7 With  respect  to  the  Taliban,  the  US  government  concluded  that  the  conflict 
was  governed  by  Common  Article  2  of  the  Geneva  Conventions8  because  the 
Taliban  qualified  as  a  high  contracting  party  to  the  Conventions  (in  light  of  its  gov- 
erning role  in  Afghanistan),  but  that  Taliban  fighters  did  not  meet  the  criteria  set 
forth  in  Article  4  of  the  Third  Geneva  Convention.  President  Bush  determined  that 
Taliban  detainees  accordingly  would  not  benefit  from  prisoner  of  war  protections. 
As  concerns  al  Qaeda,  the  US  government  concluded  that  because  the  group  was 
not  a  high  contracting  party  to  the  Geneva  Conventions,  it  was  not  eligible  for  any 
protections  under  those  treaties.  In  the  case  of  both  groups,  the  US  government 
took  the  position  that  Common  Article  39  was  inapplicable,  because  it  governed 
only  conflicts  of  a  non-international  character.10 

In  2006,  the  landscape  shifted  when  the  Supreme  Court  held  in  Hamdan  v. 
Rumsfeld  that  the  conflict  with  al  Qaeda  is  of  a  non-international  character  and 
that  Common  Article  3  accordingly  applies  as  a  matter  of  treaty  law.11  While 
Hamdan  did  not  speak  to  the  legal  protections  that  apply  with  respect  to  the 

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Human  Rights  Obligations,  Armed  Conflict  and  Afghanistan 

Taliban,  the  Department  of  Defense  issued,  in  the  same  year,  a  detainee  directive 
that  applied  Common  Article  3  and  additional  protections  as  a  baseline  to  all  De- 
partment of  Defense  detention  operations.  These  protections  were  in  addition  to 
certain  administrative  procedures  that  the  Department  of  Defense  created  through 
separate  mechanisms  to  review  whether  detainees  were  being  properly  detained  as 
combatants  and,  on  a  periodic  basis,  whether  they  posed  a  threat  sufficient  to  merit 
continued  detention.12 

In  2008,  the  Supreme  Court  determined  in  Boumediene  v.  Bush  that  the  Com- 
batant Status  Review  Tribunals  created  for  purposes  of  Guantanamo  status  reviews 
were  not  an  adequate  and  effective  substitute  for  the  ability  to  seek  the  writ  of 
habeas  corpus,  and  that  Guantanamo  detainees  have  a  constitutional  right  to  con- 
test the  legality  of  their  detentions  in  a  habeas  proceeding  in  US  courts.13  It  re- 
mained unclear,  however,  whether  the  federal  courts  would  extend  habeas  rights  to 
detention  operations  at  facilities  such  as  Bagram  in  Afghanistan  where  the  US  gov- 
ernment exercises  control  short  of  the  total  and  indefinite  control  the  Court 
deemed  it  to  enjoy  at  Guantanamo.14 

While  the  courts  were  changing  the  legal  landscape,  the  US  government  was 
working  to  change  the  diplomatic  landscape.  Following  the  2004  election,  the  prior 
administration  began  to  expand  its  outreach  to  foreign  governments  on  detention- 
related  issues,  responding  in  part  to  a  recommendation  by  the  9/11  Commission15 
that  the  United  States  should  engage  its  allies  to  develop  a  common  framework  for 
the  treatment  and  detention  of  terrorists.  A  major  theme  of  this  outreach  effort  was 
to  underscore  that  the  international  legal  framework  governing  military  opera- 
tions, and  in  particular  detention  operations,  in  extraterritorial  non-international 
armed  conflict  was  underdeveloped.  Department  of  State  Legal  Adviser  John  Bel- 
linger argued  that  among  the  fundamental  issues  that  the  law  of  armed  conflict 
failed  to  address  were  questions  about  whom  a  State  could  hold  as  enemy 
belligerents,  what  sort  of  status  determination  procedures  detainees  should  re- 
ceive, how  to  determine  when  the  end  of  conflict  had  arrived  such  that  detainees 
must  be  released,  and  what  sort  of  "non-refoulement"  style  protections  should  apply 
to  the  transfer  or  release  of  detainees  outside  a  State's  territory.16 

The  US  government  under  the  prior  administration  argued  that  these  ungov- 
erned  areas  in  the  law  of  armed  conflict  presented  troubling  areas  of  uncertainty 
for  the  US  government,  its  allies  and  its  courts  (all  of  which  had  reason  to  be  con- 
cerned about  the  conduct  of  detention  operations  in  the  absence  of  clear  legal  guid- 
ance). But  the  government  nevertheless  resisted  the  position — advanced  by 
human  rights  advocates,  the  International  Committee  of  the  Red  Cross  and  others — 
that  human  rights  law  did  or  should  present  a  legal  basis  for  filling  them.  While  the 
US  government  agreed  that  consideration  should  be  given  as  to  how  the  legal 

528 


Stephen  Pomper 


framework  governing  non-international  armed  conflict  should  be  expanded,  it 
also  maintained  that  an  across-the-board  acceptance  of  the  application  of  human 
rights  principles  in  conflict  was  not  required  by  law  and  was  to  some  extent  unreal- 
istic as  a  matter  of  policy.17  The  balance  of  this  article  describes  certain  legal  and 
practical  arguments  that  the  prior  administration  (and  in  some  cases  its  allies)  ad- 
vanced in  support  of  this  position. 

HI.  Legal  Arguments 

This  section  highlights  three  of  the  arguments  that  the  prior  administration — or, 
in  one  case,  the  government  of  Canada — advanced  in  support  of  its  legal  position 
concerning  the  territorial  limitations  of  certain  human  rights  obligations.  One  ar- 
gument the  US  government  advanced  was  that  both  the  text  and  the  negotiating 
history  of  the  International  Covenant  on  Civil  and  Political  Rights18  (which,  as  the 
most  comprehensive  articulation  of  relevant  human  rights  obligations  to  which 
the  United  States  is  party,  was  the  focus  of  much  of  the  debate  in  this  area)  indi- 
cated that  it  was  only  intended  to  apply  within  a  State's  own  territory.  Another  ar- 
gument was  that  even  States  purporting  to  apply  the  law  of  armed  conflict  and 
human  rights  law  conjointly  to  extraterritorial  armed  conflicts  did  not  appear  to 
have  a  clear  understanding  about  how  to  balance  certain  fundamental  tensions  be- 
tween the  two  bodies  of  law.  A  third  relevant  argument — advanced  in  litigation  be- 
tween the  Canadian  government  and  Amnesty  International — was  that  certain  key 
decisions  by  foreign  courts  and  international  tribunals  reflected  a  persistent  uncer- 
tainty about  whether  and  to  what  extent  human  rights  law  should  apply  in  extra- 
territorial armed  conflicts. 

A.  Text  and  History 

The  prior  administration's  positions  with  respect  to  the  text  and  history  of  the  In- 
ternational Covenant  on  Civil  and  Political  Rights  were  thoroughly  explored  in  the 
US  government's  2005  report  to  the  UN  Human  Rights  Committee  (the  body  of 
experts  who  review  treaty  reports  under  the  Covenant)19  and  elsewhere.20  The  ar- 
guments begin  with  the  text  of  Article  2,  which  provides  that  a  State  party  will  apply 
the  Covenant  to  persons  "within  its  territory  and  subject  to  its  jurisdiction."  While 
over  time  commentators,  including  Thomas  Buergenthal,21  the  UN  Committee  on 
Human  Rights,  and  some  courts  developed  arguments  that  Article  2  should  be  in- 
terpreted to  mean  that  obligations  under  the  International  Covenant  on  Civil  and 
Political  Rights  apply  to  a  State's  conduct  toward  persons  who  are  either  in  its  terri- 
tory or  subject  to  its  jurisdiction,  the  US  government  continued  to  take  the  view 


529 


Human  Rights  Obligations,  Armed  Conflict  and  Afghanistan 

that  the  plainest  reading  of  the  text  is  that  both  territory  and  jurisdiction  require- 
ments must  be  met  in  order  for  the  Covenant  to  apply. 

Moreover,  the  US  government  took  the  position — for  example,  in  its  observa- 
tions to  the  UN  Committee  on  Human  Rights'  General  Comment  31 — that,  to  the 
extent  it  was  necessary  to  look  beyond  the  text  of  Article  2  to  the  travaux 
preparatories  to  clarify  the  intent  of  the  framers  in  drafting  the  provision,  the 
travaux  fully  supported  the  US  government  perspective  on  the  scope  of  the  Cove- 
nant.22 Here,  the  US  government  noted  that  Eleanor  Roosevelt  and  the  US  team 
negotiating  the  Covenant  had  insisted  on  the  reference  to  "territory"  in  Article  2 
because  they  did  not  believe  it  would  be  practicable  to  apply  the  guarantees  of  the 
Covenant  extraterritorially — specifically  in  situations  of  occupation.23  The  US  del- 
egation encountered  resistance  from  certain  other  delegations,  which  tried  to 
amend  the  operative  language  that  constrained  the  application  of  the  Covenant  to 
a  State's  own  territory,  but  the  US  position  prevailed.24  By  way  of  context,  com- 
mentators have  noted  that  the  post-war  environment  in  which  the  International 
Covenant  on  Civil  and  Political  Rights  was  framed  was  one  in  which  much  of  the 
international  community  saw  the  law  of  armed  conflict  and  human  rights  law  as 
coming  from  different  sources  and  occupying  different  spheres — with  human 
rights  law  being  derived  from  enlightenment-era  principles  about  the  affirmative 
rights  of  individuals  vis-a-vis  their  governments,  and  the  law  of  armed  conflict  be- 
ing a  mostly  restrictive  set  of  principles  reflecting  a  grand  bargain  among  States 
about  the  proper  balance  of  military  necessity  against  humanitarian  limits.25 

The  prior  administration  also  noted  that,  while  certain  other  governments  and 
international  bodies  had  subsequently  accepted  a  broader  interpretation  of  the 
scope  of  application  of  the  International  Covenant  on  Civil  and  Political  Rights, 
the  US  government's  position  had  been  consistent  across  decades  and  administra- 
tions— and  had  been  advanced  not  only  by  Mrs.  Roosevelt  at  the  time  the  Cove- 
nant was  negotiated  but  also  by  State  Department  Legal  Adviser  Conrad  Harper  in 
the  first  US  report  to  the  United  Nations  Human  Rights  Committee  in  1995.26 

B.  The  Nuclear  Weapons/Wall  Conundrum 

One  of  the  key  sources  of  the  position  that  human  rights  law  and  the  law  of  armed 
conflict  apply  conjointly  in  the  context  of  international  armed  conflict  is  a  1996  ad- 
visory opinion  of  the  International  Court  of  Justice,  the  so-called  Nuclear  Weapons 
advisory  opinion.  In  that  opinion  the  ICJ  wrote  as  follows: 

The  Court  observes  that  the  protection  of  the  International  Covenant  [on]  Civil  and 
Political  Rights  does  not  cease  in  times  of  war,  except  by  operation  of  Article  4  of  the 
Covenant  whereby  certain  provisions  may  be  derogated  from  in  a  time  of  national 


530 


Stephen  Pomper 


emergency.  Respect  for  the  right  to  life  is  not,  however,  such  a  provision.  In  principle, 
the  right  not  arbitrarily  to  be  deprived  of  one's  life  applies  also  in  hostilities.  The  test  of 
what  is  an  arbitrary  deprivation  of  life,  however,  then  falls  to  be  determined  by  the 
applicable  lex  specialise  namely,  the  law  applicable  in  armed  conflict  which  is  designed 
to  regulate  the  conduct  of  hostilities.27 

Several  years  later,  in  its  advisory  opinion  on  the  Legal  Consequences  of  the  Con- 
struction of  a  Wall  in  the  Occupied  Palestinian  Territory ■,  the  ICJ  reinforced  and  elab- 
orated on  its  Nuclear  Weapons  holding  as  follows: 

More  generally,  the  Court  considers  that  the  protection  offered  by  human  rights 
conventions  does  not  cease  in  case  of  armed  conflict,  save  through  the  effect  of 
provisions  for  derogation  of  the  kind  to  be  found  in  Article  4  of  the  International 
Covenant  on  Civil  and  Political  Rights.  As  regards  the  relationship  between 
international  humanitarian  law  and  human  rights  law,  there  are  thus  three  possible 
situations:  some  rights  may  be  exclusively  matters  of  international  humanitarian  law; 
others  may  be  exclusively  matters  of  human  rights  law;  yet  others  may  be  matters  of 
both  these  branches  of  international  law.  In  order  to  answer  the  question  put  to  it,  the 
Court  will  have  to  take  into  consideration  both  these  branches  of  international  law, 
namely  human  rights  law  and,  as  lex  specialise  international  humanitarian  law.28 

When  these  two  ICJ  passages  are  read  together,  the  key  principles  that  emerge  ap- 
pear to  be  that  (1)  human  rights  law  continues  to  apply  in  armed  conflict;  (2)  in 
armed  conflict,  some  rights  may  be  governed  by  human  rights  law,  some  by  the  law 
of  armed  conflict,  and  some  by  both;  and  (3)  when  a  human  rights  rule  is  in  con- 
flict with  a  law  of  armed  conflict  rule,  the  law  of  armed  conflict  takes  precedence  as 
lex  specialist9 

In  reflecting  on  whether  tensions  between  human  rights  law  and  the  law  of 
armed  conflict  could  be  reconciled  by  applying  these  or  other  principles,  the  prior 
administration  noted  that  reconciliation  might  be  achieved  in  some  cases,  but 
would  be  difficult  if  not  impossible  in  others.  One  area  where  it  acknowledged  that 
the  two  bodies  might  be  reconciled  concerns  the  right  not  to  be  arbitrarily  deprived 
of  one's  life,  as  set  forth  in  Article  6  of  the  International  Covenant  on  Civil  and 
Political  Rights.30  Here,  the  US  government's  analysis  tracked  that  of  the  ICJ, 
which  discussed  the  application  of  Article  6  in  armed  conflict  in  the  above-quoted 
language  from  its  Nuclear  Weapons  opinion.  The  ICJ  found  that  in  armed  conflict, 
Article  6  continues  to  apply,  but  that  a  deprivation  of  life  would  not  be  deemed  ar- 
bitrary for  purposes  of  Article  6  if  it  occurred  in  a  manner  that  complied  with  the 
law  of  armed  conflict  (i.e.,  in  a  manner  consistent  with  the  principles  of  propor- 
tionality and  distinction,  and  that  did  not  run  afoul  of  any  other  treaty  or  custom- 
ary international  law  rule).  The  Nuclear  Weapons  discussion  of  Article  6  does  not 


531 


Human  Rights  Obligations,  Armed  Conflict  and  Afghanistan 

make  entirely  clear  whether  the  law  of  armed  conflict  rule  displaces  the  human 
rights  rule  (suggesting  that  in  cases  where  there  is  a  violation  the  remedy  is  limited 
to  what  is  afforded  under  the  law  of  armed  conflict)  or  whether  it  more  accurately 
gives  content  to  a  human  rights  rule  while  the  two  rules  apply  simultaneously  (sug- 
gesting that  where  there  is  a  violation  the  individual  is  accountable  under  both  hu- 
man rights  law  and  the  law  of  armed  conflict).  It  does,  however,  make  clear  that 
action  consistent  with  the  law  of  armed  conflict  is  not  a  human  rights  violation. 

But  the  prior  administration  also  suggested  that  commentators  calling  for  the 
joint  application  of  human  rights  law  and  the  law  of  armed  conflict  had  failed  to 
give  meaningful  guidance  on  how  to  achieve  reconciliation  between  the  two  bodies 
of  law  where  the  tension  between  them  is  more  nuanced — for  example,  on  the  issue 
of  whether  an  individual  detained  in  armed  conflict  may  seek  review  of  detention 
in  court.  Here,  the  Geneva  Conventions  do  not  offer  procedures  by  which  combat- 
ants may  challenge  the  legality  of  their  detentions,  either  in  international  or  non- 
international  armed  conflict.  By  contrast,  Article  9  of  the  International  Covenant 
on  Civil  and  Political  Rights  prohibits  arbitrary  detention  and  provides  a  right  of 
review  for  all  prisoners  and  detainees.  A  question  that  accordingly  presents  itself  is 
whether  the  absence  of  a  procedure  for  judicial  review  of  detentions  under  the 
Geneva  Conventions  suggests  that  the  law  of  armed  conflict  is  not,  on  this  point, 
the  lex  specialiSy  leaving  human  rights  law  to  furnish  the  relevant  rule.  In  reflecting 
on  this  issue,  US  Legal  Adviser  John  Bellinger  asked: 

Would  it  be  practical  to  expect  States  detaining  tens  of  thousands  of  unprivileged 
combatants  in  a  non-international  armed  conflict  to  bring  themhefore  a  judge  without 
delay?  This  is  not  something  States  must  do  even  for  prisoners  of  war  under  the  Third 
Geneva  Convention.  If  the  answer  is  that  the  State  should  derogate  from  Article  9  if  the 
exigencies  of  a  civil  war  so  demand,  then  what  contribution  has  human  rights  law  made 
to  answering  questions  regarding  the  procedures  owed  combatants  in  non- 
international  armed  conflict?  31 

An  area  of  similarly  subtle  tension  between  the  two  bodies  of  law  concerns  the 
principle  of  '  non-refoulement."  Under  human  rights  law,  the  principle  of  non- 
refoulement  (memorialized  in  Article  3  of  the  Convention  against  Torture  and 
Other  Cruel,  Inhuman  or  Degrading  Treatment  or  Punishment32  and  elsewhere) 
provides  a  safeguard  against  the  transfer  of  individuals  to  situations  where  they  are 
likely  to  be  tortured.  As  Legal  Adviser  Bellinger  noted,  however,  the  law  of  armed 
conflict  provides  for  no  such  protection  with  respect  to  the  transfer  of  prisoners  of 
war  and  other  detainees  at  the  end  of  an  armed  conflict.33  While  in  practice  the  prior 
administration  looked  to  human  rights  law  to  guide  its  transfer  policy  with  respect  to 
individuals  detained  in  the  conflict  with  al  Qaeda  (for  example,  it  established  a  firm 

532 


Stephen  Pomper 


policy  against  transferring  Guantanamo  detainees  to  countries  where  it  determined 
they  were  more  likely  than  not  to  be  tortured),  Bellinger  noted  the  complications 
that  arose  as  a  result,  observing  that  "[t]his  policy,  central  as  it  is  to  Western  values, 
has  meant  that  dozens  of  detainees  who  cannot  be  repatriated  . . .  have  remained  at 
Guantanamo  for  years  after  we  have  wished  to  transfer  them."34 

In  a  similar  vein,  the  prior  administration's  pleadings  in  Munaf  v.  Geren 
also  pointed  to  certain  sovereignty-related  complications  that  may  arise 
through  the  application  of  human  rights  non-refoulement  principles  in  armed 
conflict — particularly  when  one  State  is  conducting  hostilities  against  a  non-State 
actor  on  another  State's  territory.  In  Munaf  v.  Geren,  the  US  government  argued 
that  the  Supreme  Court  should  deny  the  relief  sought  by  two  American  citizens 
held  in  Iraq,  who  had  requested  that  the  Court  enjoin  the  US  government  from 
turning  them  over  to  the  government  of  Iraq  for  prosecution,  because  of  their 
concerns  about  post-transfer  mistreatment.35  In  ruling  for  the  government,  the 
Court  appeared  to  weigh  human  rights  considerations — noting,  among  other 
things,  the  US  government's  statement  that  it  had  a  policy  not  to  transfer  individ- 
uals in  cases  where  torture  would  likely  result — but  also  appeared  to  place  greater 
emphasis  on  Iraq's  legitimate  sovereign  interest  in  bringing  to  justice  individuals 
accused  of  committing  crimes  on  its  territory.  The  Court  wrote  that 

because  Omar  and  Munaf  [the  two  prisoners]  are  being  held  by  United  States  Armed 
Forces  at  the  behest  of  the  Iraqi  Government  pending  their  prosecution  in  Iraqi 
courts . . .  release  of  arc  v  kind  [as  opposed  to  transferring  the  detainees  to  Iraqi  custody] 
would  interfere  with  the  sovereign  authority  of  Iraq  "to  punish  offenses  against  its  laws 
committed  within  its  borders."36 

In  this  passage,  the  Court  highlighted  one  of  the  quandaries  that  a  State  may  face 
when  it  seeks  to  apply  its  human  rights  standards  on  the  territory  of  another  State 
and  accordingly  appeared  to  echo  the  concern  expressed  by  the  US  delegation  that 
negotiated  the  text  of  Article  2  of  the  International  Covenant  on  Civil  and  Political 
Rights — i.e.,  that  it  might  not  be  possible  for  States  to  enforce  their  human  rights 
obligations  outside  their  sovereign  territory. 

C.  Uncertain  Litigation  Landscape 

Another  relevant  argument — this  one  successfully  advanced  by  the  Canadian  gov- 
ernment in  its  litigation  with  Amnesty  International — was  that  international  legal 
precedent  concerning  the  extraterritorial  application  of  human  rights  obligations 
in  armed  conflict  is  unsettled,  and  that  to  the  extent  it  supports  the  extraterritorial 
application  of  human  rights  obligations,  it  does  so  only  in  limited  cases.37 


533 


Human  Rights  Obligations,  Armed  Conflict  and  Afghanistan 

The  Canadian  government  advanced  this  argument  in  defending  a  lawsuit 
brought  by  Amnesty  International.  Amnesty  had  sued  Canada  under  the  Canadian 
Charter38  to  prevent  it  from  transferring  detainees  captured  in  Afghanistan  to 
Afghan  custody,  because  of  non-refoulement  concerns.  Because  the  question  of 
whether  the  Canadian  Charter  applies  extraterritorially  turns  in  part  on  the  question 
of  whether  Canada's  international  human  rights  obligations  apply  in  Afghanistan, 
the  Canadian  government's  pleadings  explored  foreign  and  international  case  law 
concerning  the  extraterritorial  application  of  human  rights  obligations.  In  its 
pleadings,  the  Canadian  government  observed  that  the  Grand  Chamber  of  the  Eu- 
ropean Court  of  Human  Rights  had  ruled  in  its  Bankovic39  opinion  of  2001  that  the 
scope  of  the  European  Convention  on  Human  Rights40  is  normally  confined  to  the 
territorial  limits  of  the  Convention's  contracting  States.  While  Bankovic  acknowl- 
edged that  the  European  Convention  on  Human  Rights  applies  extraterritorially  in 
certain  cases  (e.g.,  where  the  conduct  in  question  occurs  in  a  State's  embassies, 
consulates,  airplanes  or  vessels,  and  in  cases  where  a  State  exercises  some  or  all  of  the 
public  powers  in  the  territory  of  another  State)  the  Court  ruled  that  no  such  addi- 
tional basis  existed  in  the  context  of  a  NATO  bombing  raid  on  a  Serbian  radio  station 
that  killed  sixteen  people.41 

The  Canadian  trial  court  hearing  the  case  acknowledged  that  several  subse- 
quent European  Court  of  Human  Rights  cases  appeared  to  go  considerably  fur- 
ther than  Bankovic  on  the  question  of  when  the  European  Convention  on  Human 
Rights  applies  extraterritorially  (e.g.,  by  finding  that  the  Convention  may  apply 
when  a  contracting  State  has  effective  control  over  a  particular  person  outside  its 
own  borders,  regardless  of  whether  it  controls  the  territory  where  that  person  is 
being  held)  but  took  the  position  that  these  cases  do  not  take  precedence  over  the 
Grand  Chamber's  decision  in  Bankovic.42  In  ruling  for  the  Canadian  government, 
the  court  concluded  that  as  a  whole  the  body  of  jurisprudence  relating  to  the  ex- 
traterritorial application  of  human  rights  law  appeared  "uncertain,"43  and  that  the 
Charter  accordingly  did  not  confer  rights  on  Afghans  detained  by  Canadian  forces 
in  Afghanistan.44 

IV.  Practical  Issues:  Afghanistan 

Moving  from  law  to  practice,  commentators  observing  ISAF/NATO  operations  in 
Afghanistan  noted  certain  practical  concerns  arising  from  the  application  of  hu- 
man rights  obligations  in  extraterritorial  armed  conflict. 

One  concern  relates  to  operational  constraints  that  human  rights  law  imposes 
on  combat  operations.  In  May  2008,  a  European  news  magazine  reported  that  a 
European  partner  in  the  ISAF  coalition  had  failed  to  capture  a  Taliban  leader  who 

534 


Stephen  Pomper 


was  believed  by  NATO  commanders  to  be  active  in  planting  roadside  bombs  and 
sheltering  suicide  bombers,  and  to  be  responsible  for  a  2007  attack  on  a  sugar  fac- 
tory that  had  resulted  in  almost  eighty  deaths.  When  an  effort  to  capture  this  indi- 
vidual failed,  the  coalition  partner's  troops  had  an  opportunity  to  target  him,  but 
had  to  pull  back  because  they  lacked  the  authorization  to  do  so,  permitting  him  to 
flee.  A  senior  official  from  this  coalition  partner  explained  to  the  magazine  that  "a 
fugitive  like  [the  escaped  Taliban  leader]  is  not  an  aggressor  and  should  not  be  shot 
unless  necessary."45  The  magazine  additionally  reported  that  this  coalition  partner 
considered  "[t]he  use  of  lethal  force  [to  be]  prohibited  unless  an  attack  is  taking 
place  or  is  imminent."46  The  emphasis  on  using  force  only  in  self-defense  suggested 
that  either  the  coalition  partner  did  not  believe  itself  to  be  engaged  in  an  armed 
conflict,  or  that  it  had  nevertheless  instructed  its  troops  to  act  in  accordance  with  a 
human  rights  law  framework  and  treat  its  Afghan  operations  as  a  law  enforcement 
exercise.  The  magazine  noted  that  this  coalition  partner  considered  the  different 
approaches  by  its  allies  to  targeting  in  Afghanistan  as  "not  being  in  conformity  with 
international  law"  and  suggested  that  the  difference  in  legal  approaches  contrib- 
uted to  "tension  and  friction"  among  NATO  partners.47  The  magazine's  account 
accordingly  suggested  that  the  application  of  human  rights  law  may  impede  effec- 
tive military  operations  both  by  limiting  the  scope  of  operational  flexibility  where 
applied  to  the  exclusion  of  law  of  armed  conflict  principles  and  by  creating  coordi- 
nation issues  between  coalition  partners. 

A  second  concern  that  has  been  raised  by  commentators  is  that  the  discrepancy 
between  US  and  European  approaches  to  detention  may  be  partly  responsible  for 
having  impaired  the  ability  of  NATO/ISAF  to  conduct  effective  detention  opera- 
tions. Under  a  rule  that  applies  to  all  NATO/ISAF  forces  (including  US  compo- 
nents under  NATO/ISAF  command),  forces  are  generally  prohibited  from  holding 
detainees  for  longer  than  ninety-six  hours  before  transferring  them  to  Afghan  au- 
thorities.48 This  system  avoids  legal  and  other  complications  that  might  arise  out  of 
medium-  or  long-term  detention,  particularly  for  States  that  might  face  challenges 
under  the  European  Convention  on  Human  Rights,  but  it  has  its  costs.  In  2006, 
David  Bosco,  a  senior  editor  at  Foreign  Policy  magazine,  wrote  that,  as  a  result  of 
this  system, 

NATO  troops  have  no  system  in  place  for  regularly  interrogating  Taliban  fighters  for 
intelligence  purposes.  Whenever  possible,  they  let  the  Afghan  troops  they  operate  with 
take  custody.  When  that's  not  possible,  they  house  their  prisoners  briefly  in  makeshift 
facilities  while  they  arrange  a  transfer  to  the  Afghans.  NATO  guidelines  call  for  the 
handover  of  prisoners  within  96  hours,  far  too  brief  a  time  for  soldiers  to  even  know 
whom  they're  holding.  And  once  prisoners  are  in  Afghan  hands,  international  forces 
easily  lose  track  of  them.49 

535 


Human  Rights  Obligations,  Armed  Conflict  and  Afghanistan 

Human  rights  advocates  such  as  Amnesty  International  have  also  criticized  the 
ninety-six-hour  rule — from  a  different  angle — arguing  that  it  actually  creates 
human  rights  concerns,  because  it  requires  the  transfer  of  detainees  to  Afghan  au- 
thorities notwithstanding  what  Amnesty  has  argued  to  be  an  unacceptable  risk  of 
mistreatment.  Indeed,  it  was  concern  about  NATO/ISAF  transfer  policies  that  led 
Amnesty  to  bring  the  above-described  lawsuit  seeking  to  enjoin  the  government  of 
Canada  from  transferring  detainees  to  Afghan  custody  pending  an  improvement 
in  post-transfer  human  rights  safeguards. 

V.  Conclusion 

As  discussed,  the  prior  administration  took  the  view  that  the  law  of  armed  conflict 
did  not  provide  an  adequate  legal  framework  for  addressing  all  of  the  issues  that 
arise  in  armed  conflict  with  non-State  groups,  but  argued  that  legal  and  policy  con- 
siderations weighed  against  the  notion  that  gaps  in  the  framework  should  be  filled 
simply  by  looking  to  human  rights  law.  Instead,  it  emphasized  that  the  interna- 
tional community  needed  to  work  together  to  develop  new  approaches  that  would 
address  the  gaps  while  steering  clear  of  the  legal  and  policy  pitfalls  it  associated  with 
the  application  of  human  rights  law  in  armed  conflict.50  The  new  administration 
will,  of  course,  develop  its  own  views  about  where  the  gaps  lie  and  how  to  address 
them.  In  determining  whether  or  how  to  depart  from  the  path  taken  by  the  prior 
administration,  a  first  step  will  be  to  look  back  at  some  of  the  arguments  and  con- 
cerns described  in  this  article  and  elsewhere  that  helped  to  put  the  US  government 
on  its  present  course. 

Notes 

1.  Boumediene  v.  Bush,  128  S.  Ct.  2229  (2008). 

2.  Letter  from  John  Negroponte,  US  Ambassador  to  the  United  Nations,  to  the  Presi- 
dent of  the  UN  Security  Council,  U.N.  Doc.  S/200 1/946  (Oct.  7,  2001),  available  at  http:// 
avalon.law.yale.edu/sept  1 1  /un_006.asp. 

3.  Christopher  Greenwood,  Report,  International  Law  Framework  for  the  Treatment  of 
Persons  Detained  in  Afghanistan  by  Canadian  Forces  para.  13  (2007),  available  at  http:// 
web.ncf.ca/fk624/data/Report%20-%20Greenwood%20(14%20Aug%2007).pdf. 

4.  Id.,  para.  9. 

5.  Pub.L.  107-40,  115  Stat.  224  (2001). 

6.  Hamdi  v.  Rumsfeld,  542  U.S.  507  (2004). 

7.  Convention  for  the  Amelioration  of  the  Condition  of  the  Wounded  and  Sick  in  Armed 
Forces  in  the  Field,  Aug.  12,  1949,  6  U.S.T.  3114,  75  U.N.T.S.  31  [Geneva  Convention  I];  Con- 
vention for  the  Amelioration  of  the  Condition  of  Wounded,  Sick  and  Shipwrecked  Members  of 
Armed  Forces  at  Sea,  Aug.  12, 1949, 6  U.S.T.  3217, 75  U.N.T.S.  85  [Geneva  Convention  II];  Con- 
vention Relative  to  the  Treatment  of  Prisoners  of  War,  Aug.  12, 1949, 6  U.S.T.  3316, 75  U.N.T.S. 

536 


Stephen  Pomper 


135  [Geneva  Convention  III];  Convention  Relative  to  the  Protection  of  Civilian  Persons  in  Time 
of  War,  Aug.  12,  1949,  6  U.S.T.  3516,  75  U.N.T.S.  287  [Geneva  Convention  IV];  all  reprinted  in 
DOCUMENTS  ON  THE  LAWS  OF  WAR  (Adam  Roberts  &  Richard  Guelffeds.,  3d  ed.  2000)  at  197, 
222,  244  and  301,  respectively. 

8.  Geneva  Conventions  I-IV,  art.  2,  supra  note  7,  at  198,  222,  244  and  301,  respectively. 

9.  Geneva  Conventions  I-IV,  art.  3,  supra  note  7,  at  198,  223,  245  and  302,  respectively. 

10.  Memorandum  from  George  Bush  to  Vice  President  et  ah,  Humane  Treatment  of  Al 
Qaeda  and  Taliban  Detainees  (Feb.  7,  2002),  reprinted  in  THE  TORTURE  PAPERS:  THE  ROAD  TO 
ABU  GHRAIB  134  (Karen  J.  Greenberg  &  Joshua  Dratel  eds.,  2005),  available  at  http://www 
.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.02.07.pdf. 

11.  Hamdan  v.  Rumsfeld,  126  S.  Ct.  2749  (2006). 

12.  For  a  discussion  of  these  administrative  procedures,  see  Jack  Goldsmith  &  Robert 
Chesney,  Terrorism  and  the  Convergence  of  Criminal  and  Military  Detention  Models,  60  STAN- 
FORD LAW  REVIEW  1079,  1110-11  and  1132  (2008). 

13.  Boumediene  v.  Bush,  128  S.  Ct.  2229  (2008). 

14.  In  March  2009,  the  United  States  District  Court  for  the  District  of  Columbia  ruled  that 
certain  Bagram  detainees  who  were  captured  outside  Afghanistan  enjoyed  the  same  habeas  rights 
as  Guantanamo  detainees.  Al  Maqaleh  v.  Gates,  No.  06-1669  (D.D.C.  Apr.  2,  2009). 

15.  The  9/11  Commission  Report:  Final  Report  of  the  National  Commission  on  Terrorist 
Attacks  upon  the  United  States  (2004),  available  at  http://www.9-l  lcommission.gov/. 

16.  John  B.  Bellinger,  US  State  Department  Legal  Advisor,  Oxford  Leverhulme  Programme 
Lecture  on  the  Changing  Character  of  War,  available  at  http://2001-2009.state.gOv/s/l/2007/ 
112723.htm  [hereinafter  Bellinger  Oxford  Speech]. 

17.  Id. 

18.  International  Covenant  on  Civil  and  Political  Rights,  Dec.  16, 1966,  999  U.N.T.S.  171. 

19.  Because  the  United  States  had  two  outstanding  reports,  it  consolidated  the  Second  and 
Third  Reports  into  one  report.  This  single  report  is  referred  to  as  the  "Second  and  Third  Periodic 
Report."  U.N.  Human  Rights  Committee,  Third  Periodic  Reports  of  States  Parties  Due  in  2003: 
United  States  of  America,  U.N.  Doc.  CCPR/C/USA/3  (Nov.  28,  2005),  available  arhttp://www 
.state.gov/g/drl/rls/55504.htm#annexl  [hereinafter  Report  to  the  UN]. 

20.  US  Observations  on  Human  Rights  Committee  General  Comment  31  (Dec.  27,  2007), 
available  at  http://2001-2009.state.gOv/s/l/2007/l  12674.htm. 

2 1 .  Thomas  Buergenthal,  To  Respect  and  to  Ensure:  State  Obligations  and  Permissible  Deroga- 
tions, in  The  International  Bill  of  Rights:  The  Covenant  on  Civil  and  Political 
RIGHTS  72,  74  (Louis  Henkin  ed.,  1981). 

22.  See  US  Observations,  supra  note  20. 

23.  Matthew  Waxman,  Head  of  US  Delegation,  Principal  Deputy  Director  of  Policy 
Planning,  US  Department  of  State,  Opening  Statement  (July  17, 2006),  available  at  http://geneva 
.usmission.gov/Press2006/07 1 7Waxman.html. 

24.  Report  to  the  UN,  supra  note  19. 

25.  Michelle  A.  Hansen,  Preventing  the  Emasculation  of  Warfare:  Halting  the  Expansion  of 
Human  Rights  Law  into  Armed  Conflict,  194  MILITARY  LAW  REVIEW  1,  2-4  (2008). 

26.  Summary  record  of  the  53rd  Session,  1 405th  meeting:  United  States  of  America,  UN  Hu- 
man Rights  Committee,  U.N.  Doc.  CCPR/C/SR  1405,  paras.  7,  20  (1995). 

27.  Legality  of  the  Threat  or  Use  of  Nuclear  Weapons,  Advisory  Opinion,  1996  I.C.J.  226, 
240,  para.  25  (July  8). 

28.  Legal  Consequences  of  the  Construction  of  a  Wall  in  the  Occupied  Palestinian  Territory, 
Advisory  Opinion,  2004  I.C.J.  136,  178,  para.  106  (July  9). 


537 


Human  Rights  Obligations,  Armed  Conflict  and  Afghanistan 

29.  The  ICJ  additionally  ruled  in  the  Wall  opinion  that  the  International  Covenant  on  Civil 
and  Political  Rights  applies  extraterritorially,  meaning  that  territorial  limitations  on  human 
rights  obligations  are  not  an  available  tool  for  reconciling  tensions  between  the  two  bodies  of 
law.  Id.,  para.  111. 

30.  See  Bellinger  Oxford  Speech,  supra  note  16  (observing  that  if  human  rights  obligations 
applied  in  armed-conflict  situations  "  [s]  ome  rights  deemed  non-derogable  by  the  [ International 
Covenant  on  Civil  and  Political  Rights],  such  as  the  right  to  life,  would  be  clearly  displaced  by 
more  specific  law  of  war  rules  that  govern  as  the  lex  specialis"). 

31.  Id. 

32.  Convention  against  Torture  and  Other  Cruel,  Inhuman  or  Degrading  Treatment  or 
Punishment,  G.A.  Res.  39/46,  annex,  39  U.N.  GAOR  Supp.  (No.  51)  at  197,  U.N.  Doc.  A/39/51 
(1984). 

33.  For  purposes  of  international  armed  conflicts,  Article  1 18  of  Geneva  Convention  III,  su- 
pra note  7,  simply  states  that  "[prisoners  of  war  shall  be  released  and  repatriated  without  delay 
after  the  cessation  of  active  hostilities";  as  concerns  non-international  armed  conflicts,  Common 
Article  3,  supra  note  9,  is  entirely  silent  on  repatriation/transfer  safeguards. 

34.  Bellinger  Oxford  Speech,  supra  note  16. 

35.  Brief  for  the  Federal  Parties,  Munaf  v.  Geren  (No.  06-1666)  (2008),  available  at  http:// 
www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-394_FederalParties.pdf. 

36.  Munaf  v.  Geren,  128  S.  Ct.  2207  (2008). 

37.  Respondent's  Factum  Re:  Determination  of  Two  Questions,  Pursuant  to  Rule  107  of  the 
Federal  Courts  Rules,  Regarding  the  Application  of  the  Canadian  Charter  of  Rights  and  Free- 
doms TflJ  62-66,  Amnesty  International  Canada  v.  Chief  of  the  Defence  Staff,  Court  File  No.  T- 
324-07  (2008),  available  at  http://www.bccla.org/antiterrorissue/factumcrown.pdf. 

38.  Canadian  Charter  of  Rights  and  Freedoms,  Constitution  Act,  1982  (Schedule  B  to  the 
Canada  Act  1982  (U.K.)),  available  at  http://laws.justice.gc.ca/en/charter/. 

39.  Bankovic  and  Others  v.  Belgium,  2001 -XII  Eur.  Ct.  H.R.  333,  123  ILR  94. 

40.  Convention  for  the  Protection  of  Human  Rights  and  Fundamental  Freedoms,  Nov.  4, 
1950,  213  U.N.T.S.  221,  available  at  http://conventions.coe.int/Treaty/en/Treaties/Html/ 
005.htm. 

4 1 .  The  Bankovic  decision  states  that 

[i]n  sum,  the  case-law  of  the  Court  demonstrates  that  its  recognition  of  the  exercise  of 
extra-territorial  jurisdiction  by  a  Contracting  State  is  exceptional:  it  has  done  so  when 
the  respondent  State,  through  the  effective  control  of  the  relevant  territory  and  its 
inhabitants  abroad  as  a  consequence  of  military  occupation  or  through  the  consent, 
invitation  or  acquiescence  of  the  Government  of  that  territory,  exercises  all  or  some  of 
the  public  powers  normally  to  be  exercised  by  that  Government. 

Bankovic,  supra  note  39,  para.  71.  In  comparing  the  European  Court  of  Human  Rights  holding  in 
Bankovic  to  the  US  government's  position  that  the  International  Covenant  on  Civil  and  Political 
Rights  never  applies  extraterritorially,  it  bears  mention  that  unlike  Article  2  of  the  Covenant,  the 
jurisdictional  provision  of  the  European  Convention  on  Human  Rights  does  not  include  a 
reference  to  "territory."  Article  1  of  the  Convention  provides  that  "[tjhe  High  Contracting 
Parties  shall  secure  to  everyone  within  their  jurisdiction  the  rights  and  freedoms  defined  in 
Section  I  of  this  Convention." 

42.  The  Canadian  court  noted  in  particular  the  European  Court  of  Human  Rights  decision 
in  Issa  v.  Turkey — which  addressed  whether  the  European  Convention  on  Human  Rights  gov- 
erned Turkey's  conduct  toward  a  group  of  shepherds  apprehended  inside  Iraq  and  advanced 
the  argument  that  a  State  may  be  held  accountable  for  violations  of  its  obligations  under  the 

538 


Stephen  Pomper 


Convention  against  "persons  who  are  in  the  territory  of  another  State  but  who  are  found  to  be 
under  the  former  State's  authority  and  control."  Issa  &  Others  v.  Turkey,  App.  No.  31821/96, 
41  Eur.  Ct.  H.R.  Rep.  567  (2004).  But  the  Canadian  court  agreed  with  Lord  Brown  in  the  UK  al 
Skeini  case,  who  stated  that  the  Bankovic  opinion  issued  from  a  higher  chamber  of  the  Euro- 
pean Court  of  Human  Rights  than  Issa  and,  to  the  extent  of  any  discrepancies,  appeared  to  be 
better  law.  Amnesty  International  Canada  v.  Chief  of  the  Defence  Staff  (Canada),  [2008]  F.C. 
336,  paras.  234-35,  available  at  http://www.unhcr.org/refworld/docid/49cb8cff2.html. 

43.  Amnesty  International  Canada,  supra  note  42,  para.  214. 

44.  While  not  discussed  in  Amnesty,  two  other  major  decisions  from  the  past  two  years  argu- 
ably have  contributed  to  the  uncertainty  surrounding  the  question  of  when  human  rights  obliga- 
tions might  be  deemed  to  apply  in  extraterritorial  armed  conflict.  First,  in  its  Behrami  and 
Saramati  cases,  the  European  Court  of  Human  Rights  suggested  that  provisions  of  the  European 
Convention  on  Human  Rights  do  not  reach  the  extraterritorial  military  activities  of  member 
State  armed  forces  if  acting  as  part  of  a  UN  mission,  because  the  Court  lacks  jurisdiction  over  the 
United  Nations  and  its  operations.  Behrami  v.  France  and  Saramati  v.  France,  45  Eur.  Ct.  H.R.  10 
(2007).  Second,  the  UK  House  of  Lords  held  in  its  al  Jedda  decision  that  where  a  UN  Security 
Council  resolution  has  provided  authority  for  security  detention,  this  effectively  trumps  the  pro- 
hibition against  detention  in  Article  5  of  the  Convention,  because  Article  103  of  the  UN  Charter 
provides  that  in  cases  where  a  State's  Charter  obligations  conflict  with  its  other  treaty  obliga- 
tions, the  Charter  prevails.  At  the  same  time,  however,  the  House  of  Lords  held  that  the  UK  gov- 
ernment must  ensure  that  detainee  rights  under  Article  5  are  not  infringed  "to  any  greater  extent 
than  is  inherent  in  such  detention."  R  (on  the  Application  of  Al- Jedda)  (FC)  v.  Secretary  of  State 
for  Defence  [2007]  UKHL  58,  para.  39,  available  at  http://www.publications.parliament.uk/pa/ 
Id200708/ldjudgmt/jd07 1 2 1 2/jedda- 1  .htm. 

45.  Suzanne  Koelbl  8c  Alexander  Szandar,  Not  Licensed  to  Kill,  SPIEGEL  ONLINE  INTERNA- 
TIONAL (Apr.  19,  2008),  http://www.spiegel.de/international/world/0,1518,554033,00.html. 

46.  Id. 

47.  Id. 

48.  Ashley  Deeks,  Detention  in  Afghanistan:  The  Need  for  an  Integrated  Plan  (2008),  avail- 
able at  http://www.csis.org/media/csis/pubs/0802 1 3_deeks_afghanistan.pdf. 

49.  David  Bosco,  A  Duty  NATO  Is  Dodging  in  Afghanistan,  WASHINGTON  POST,  Nov.  5, 
2006,  at  B07. 

50.  Bellinger  Oxford  Speech,  supra  note  16. 


539 


APPENDIX 


CONTRIBUTORS 


Contributors 


Editor's  Note:  In  order  to  most  accurately  portray  the  events  of  the  conference,  the  bio- 
graphical data  in  this  appendix  reflects  the  position  in  which  the  authors  were  serving 
at  the  time  of  the  conference,  as  set  forth  in  the  conference  brochures  and  materials. 

Commander  Alan  Cole,  Royal  Navy,  is  the  international  law  attorney  on  the  staff 
of  the  UK  Director  of  Naval  Legal  Services.  He  initially  trained  at  Britannia  Royal 
Naval  College  before  joining  his  first  ship  in  1991  and  served  in  a  number  of  posi- 
tions, including  logistics  officer  of  HMS  Splendid.  Since  training  as  a  barrister  at 
Gray's  Inn  and  qualifying  as  a  lawyer,  he  has  served  as  legal  adviser  to  the  Com- 
mander in  Chief  Fleet  and  as  an  advocate  at  courts-martial,  as  well  as  a  period  back 
at  sea  as  logistics  officer  of  a  destroyer.  As  a  commander  he  has  served  as  the  senior 
military  legal  officer  at  the  UK  Permanent  Joint  Headquarters,  responsible  for  pro- 
viding advice  to  the  Chief  of  Joint  Operations  on  all  UK  joint  operations,  particu- 
larly those  in  Afghanistan.  He  has  also  served  in  Baghdad  on  General  Petraeus's 
Reconciliation  Team  and  as  legal  adviser  to  the  coalition  maritime  force  in  Bahrain. 

Professor  Geoffrey  S.  Corn  joined  the  faculty  of  South  Texas  College  of  Law  in  July 
2005  as  an  assistant  professor  of  law.  Prior  to  joining  the  faculty,  Professor  Corn 
served  as  the  Special  Assistant  for  Law  of  War  Matters  to  the  US  Army  Judge 
Advocate  General,  the  Army's  senior  law  of  war  adviser  and  representative  to  the 
Department  of  Defense  Law  of  War  Working  Group.  Professor  Corn  spent  twenty- 
one  years  on  active  duty  in  the  Army,  retiring  in  the  rank  of  lieutenant  colonel. 
Professor  Corn  routinely  provides  expert  assistance  to  military,  government  and 
non-governmental  agencies.  He  is  a  contributor  to  the  legal  affairs  website  Jurist 
and  to  the  foreign  affairs  and  national  security  daily  World  Politics  Watch,  and  also 
frequently  participates  in  national  and  international  conferences  related  to  na- 
tional security  law  issues.  He  is  the  faculty  adviser  to  the  National  Security  Law  So- 
ciety at  South  Texas  College  of  Law.  Professor  Corn  earned  his  Juris  Doctor  from 
George  Washington  University  and  his  Master  of  Laws  degree  from  the  Army 
Judge  Advocate  General's  School.  He  is  also  a  graduate  of  the  Army  Command  and 
Staff  College. 

Professor  Yoram  Dinstein  is  Professor  Emeritus  of  International  Law  at  Tel  Aviv 
University  (Israel).  He  is  a  former  President  of  the  University,  as  well  as  former 


Contributors 


Rector  and  former  Dean  of  the  Faculty  of  Law.  Professor  Dinstein  served  two  ap- 
pointments as  the  Charles  H.  Stockton  Professor  of  International  Law  at  the  Naval 
War  College.  He  was  also  a  Humboldt  Fellow  at  the  Max  Planck  Institute  for  Inter- 
national Law  at  Heidelberg  (Germany),  a  Meltzer  Visiting  Professor  of  Interna- 
tional Law  at  New  York  University  and  a  Visiting  Professor  of  Law  at  the  University 
of  Toronto.  Professor  Dinstein  is  a  Member  of  the  Institute  of  International  Law 
and  Vice  President  of  Israel's  national  branch  of  the  International  Law  Association 
and  of  the  Israel  United  Nations  Association.  He  was  also  a  member  of  the  Execu- 
tive Council  of  the  American  Society  of  International  Law.  At  present,  he  is  a  mem- 
ber of  the  Council  of  the  San  Remo  International  Institute  of  Humanitarian  Law. 
He  has  written  extensively  on  subjects  relating  to  international  law,  human  rights 
and  the  law  of  armed  conflict.  He  is  the  founder  and  Editor  of  the  Israel  Yearbook  on 
Human  Rights.  He  is  the  author  of  War,  Aggression  and  Self-Defence,  now  in  its 
fourth  edition.  Professor  Dinstein's  latest  book  is  The  Conduct  of  Hostilities  under 
the  Law  of  International  Armed  Conflict. 

Professor  Charles  Garraway  is  an  international  law  adviser  to  the  British  Red 
Cross.  He  retired  in  2003  after  thirty  years  in  the  UK  Army  Legal  Services,  initially 
as  a  criminal  prosecutor  and  then  as  an  adviser  on  the  law  of  armed  conflict  and  op- 
erational law.  In  that  capacity,  he  represented  the  Ministry  of  Defence  at  numerous 
international  conferences  and  was  part  of  UK  delegations  to  the  First  Review 
Conference  for  the  1981  Conventional  Weapons  Convention,  the  negotiations  on 
the  establishment  of  an  International  Criminal  Court,  and  the  Diplomatic  Confer- 
ence that  led  to  the  1999  Second  Protocol  to  the  1954  Hague  Convention  on  Cul- 
tural Property.  He  was  also  the  senior  Army  lawyer  deployed  to  the  Arabian  Gulf 
during  the  1990-91  Gulf  conflict.  Since  retiring,  Professor  Garraway  spent  three 
months  in  Baghdad  working  for  the  Foreign  Office  on  transitional  justice  issues 
and  six  months  as  a  senior  research  fellow  at  the  British  Institute  of  International 
and  Comparative  Law.  He  was  the  2004-05  Charles  H.  Stockton  Professor  of  Inter- 
national Law  at  the  Naval  War  College.  He  is  currently  a  Visiting  Professor  at 
King's  College,  London,  a  Visiting  Fellow  in  the  Department  of  Human  Rights, 
University  of  Essex  and  an  Associate  Fellow  at  the  Royal  Institute  of  International 
Affairs  (Chatham  House)  in  both  its  International  Law  and  International  Security 
programs.  In  2006,  he  was  elected  as  a  member  of  the  International  Humanitarian 
Fact  Finding  Commission,  established  under  Article  90  of  Additional  Protocol  I  to 
the  Geneva  Conventions  of  1949. 

Professor  Ryan  Goodman  is  the  Rita  E.  Hauser  Professor  of  Human  Rights  and 
Humanitarian  Law  and  the  director  of  the  Human  Rights  Program  at  Harvard  Law 

544 


Contributors 


School.  Professor  Goodman  received  his  Juris  Doctor  degree  from  Yale  Law 
School.  He  received  a  Doctor  of  Philosophy  degree  in  sociology  from  Yale 
University.  He  has  worked  at  the  US  Department  of  State,  the  International 
Criminal  Tribunal  for  the  former  Yugoslavia,  and  non-governmental  organiza- 
tions in  India,  South  Africa,  Switzerland,  Thailand  and  the  United  States.  His  re- 
cent publications  have  appeared  in  the  American  Journal  of  International  Law,  the 
California  Law  Review,  the  Duke  Law  Journal,  the  European  Journal  of  International 
Law,  the  Harvard  Law  Review,  the  Stanford  Law  Review  and  the  Yale  Law  Journal. 
His  publications  also  include  International  Humanitarian  Law  (forthcoming  2009, 
with  Derek  Jinks  &  Michael  Schmitt)  and  International  Human  Rights  in  Context 
(with  Henry  Steiner  &  Philip  Alston). 

Professor  Francoise  J.  Hampson  is  Professor  of  Law,  Department  of  Law  and  a 
member  of  the  Human  Rights  Centre  at  the  University  of  Essex.  Professor 
Hampson  was  an  independent  expert  member  of  the  UN  Sub-Commission  on  the 
Promotion  and  Protection  of  Human  Rights  from  1998  to  2007.  She  previously 
taught  at  the  University  of  Dundee.  She  has  acted  as  a  consultant  on  humanitarian 
law  to  the  International  Committee  of  the  Red  Cross  and  taught  at  staff  colleges  or 
equivalents  in  the  United  Kingdom,  United  States,  Canada  and  Ghana.  She  repre- 
sented Oxfam  and  Save  the  Children  Fund  (United  Kingdom)  at  the  Preparatory 
Committee  and  first  session  of  the  Review  Conference  for  the  Certain  Conven- 
tional Weapons  Convention.  Professor  Hampson  has  successfully  litigated  many 
cases  before  the  European  Court  of  Human  Rights  in  Strasbourg  and,  in  recogni- 
tion of  her  contribution  to  the  development  of  law  in  this  area,  was  awarded  Hu- 
man Rights  Lawyer  of  the  Year  jointly  with  her  colleague  from  the  Centre, 
Professor  Kevin  Boyle.  She  has  taught,  researched  and  published  widely  in  the 
fields  of  armed  conflict  and  international  humanitarian  law  and  on  the  European 
Convention  on  Human  Rights.  She  is  currently  working  on  international  law  is- 
sues relating  to  private  military/security  companies  and  is  a  member  of  the  inde- 
pendent panel  appointed  by  the  International  Court  of  Justice  to  examine  the 
conduct  of  the  parties  to  the  conflict  in  Lebanon  in  2006. 

Lieutenant  Colonel  Eric  Talbot  Jensen,  JA,  US  Army,  is  currently  serving  as  Chief, 
International  Law  Branch,  Office  of  the  Judge  Advocate  General,  US  Army.  Prior 
assignments  include  Deputy  Staff  Judge  Advocate  for  the  1st  Cavalry  Division  and 
Task  Force  Baghdad,  professor  of  international  and  operational  law  at  The  Judge 
Advocate  General's  Legal  Center  and  School  and  observer/trainer  at  the  Combat 
Maneuver  Training  Center  in  Hohenfels,  Germany.  Lieutenant  Colonel  Jensen  has 
deployed  with  the  US  Army  to  Iraq  in  support  of  Operation  Iraqi  Freedom;  to 

545 


Contributors 


United  Nations  Preventive  Deployment  Force  in  Skopje,  Macedonia;  and  twice  to 
Bosnia  in  support  of  Operation  Joint  Endeavor/Guard.  LTC  Jensen  is  a  graduate  of 
Brigham  Young  University  and  University  of  Notre  Dame  Law  School.  He  holds 
Master  of  Laws  degrees  from  The  Judge  Advocate  General's  Legal  Center  and 
School  and  Yale  Law  School.  Lieutenant  Colonel  Jensen  has  published  in  a  number 
of  law  journals  and  other  publications  on  topics  related  to  international  law,  the 
law  of  war  and  national  security  law.  Recent  publications  have  appeared  in  the 
Houston  Law  Review,  Yale  Law  Journal  and  Denver  Journal  of  International  Law  and 
Policy. 

Professor  John  F.  Murphy  is  professor  of  law  at  Villanova  University  School  of 
Law.  In  addition  to  teaching,  Professor  Murphy's  career  includes  a  year  in  India  on 
a  Ford  Foundation  Fellowship;  private  practice  in  New  York  City  and  Washington, 
DC;  and  service  in  the  Office  of  the  Assistant  Legal  Adviser  for  United  Nations  Af- 
fairs, US  Department  of  State.  He  was  previously  on  the  law  faculty  at  the  Univer- 
sity of  Kansas  and  has  been  a  visiting  professor  at  Cornell  University  and 
Georgetown  University.  Professor  Murphy  was  the  1980-81  Charles  H.  Stockton 
Professor  of  International  Law  at  the  Naval  War  College.  He  is  the  author  of  nu- 
merous articles,  comments  and  reviews  on  international  law  and  relations,  as  well 
as  the  author  or  editor  of  various  books  and  monographs.  Most  recently,  he  has 
authored  The  United  States  and  the  Rule  of  Law  in  International  Affairs  (2004).  His 
casebook  (with  Alan  C.  Swan),  The  Regulation  of  International  Business  and  Eco- 
nomic Relations  (2d  ed.),  was  awarded  a  certificate  of  merit  by  the  American  Society 
of  International  Law  in  1992.  Professor  Murphy  has  served  as  a  consultant  to  the 
US  Departments  of  State  and  Justice,  the  ABA  Standing  Committee  on  Law  and 
National  Security,  and  the  United  Nations  Crime  Bureau,  and  has  testified  before 
Congress  on  several  occasions.  He  is  currently  the  American  Bar  Association's  Al- 
ternate Observer  at  the  US  Mission  to  the  United  Nations. 

Professor  Sean  D.  Murphy  is  the  Patricia  Roberts  Harris  Research  Professor  of  Law 
at  the  George  Washington  University  Law  School  in  Washington,  DC.  Professor 
Murphy  has  a  Juris  Doctor  degree  from  Columbia  University,  a  Master  of  Laws  de- 
gree from  Cambridge  University  and  a  Doctor  of  Juridical  Science  degree  from  the 
University  of  Virginia  School  of  Law.  From  1987  to  1995,  Professor  Murphy 
served  in  the  Office  of  the  Legal  Adviser  at  the  US  Department  of  State,  specializ- 
ing in  politico-military  matters,  international  litigation  and  international  environ- 
mental law.  From  July  1995  to  July  1998,  Professor  Murphy  served  as  the  Legal 
Counselor  of  the  US  Embassy  in  The  Hague.  In  that  capacity,  he  represented  the 
US  government  before  the  International  Court  of  Justice,  the  International 

546 


Contributors 


Criminal  Tribunal  for  the  former  Yugoslavia,  the  Permanent  Court  of  Arbitration, 
the  Hague  Conference  on  Private  International  Law  and  served  as  the  US  Agent  to 
the  Iran-US  Claims  Tribunal.  Since  entering  academia,  Professor  Murphy  has 
continued  to  represent  governments  and  private  litigants  before  international 
courts  and  tribunals,  most  recently  Ethiopia  and  Suriname.  Professor  Murphy's 
book  entitled  Humanitarian  Intervention:  The  United  Nations  in  an  Evolving  World 
Order  won  the  American  Society  of  International  Law  1997  certificate  of  merit  for 
preeminent  contribution  to  creative  scholarship.  He  has  published  articles  in  a  variety 
of  national  and  international  law  journals,  and  was  awarded  the  American  Journal 
of  International  Law  1994  Deak  Prize  for  best  scholarship  by  a  younger  author.  His 
most  recent  books  are  Principles  of  International  Law  and  a  casebook,  U.S.  Foreign 
Relations  and  National  Security  Law  (with  Thomas  Franck  &  Michael  Glennon). 
Professor  Murphy  is  a  member  of  the  Board  of  Editors  of  the  American  Journal  of 
International  Law  and  has  served  on  the  Executive  Council  of  the  American  Soci- 
ety of  International  Law. 

Mr.  Stephane  Ojeda  was  appointed  Legal  Advisor  to  the  Operations  at  the  Interna- 
tional Committee  of  the  Red  Cross  (ICRC)  in  Geneva  in  May  2005.  In  his  current 
capacity,  he  counsels  ICRC  field  delegations,  in  particular  in  the  United  States,  Af- 
ghanistan and  Iraq,  on  international  law  issues  relating  to  detention  in  the  fight 
against  terrorism.  He  is  also  in  charge  of  legal  support  to  ICRC  operations  in  Eu- 
rope and  the  Balkans.  Previously,  he  served  as  detention  delegate  in  Ethiopia  and 
Israel,  and  as  a  legal  advisor  in  Lebanon,  Israel  and  the  Palestinian  Territories.  Be- 
fore joining  the  ICRC  in  1999,  he  worked  in  Mali  for  a  non-governmental  organi- 
zation implementing  development  programs.  Earlier,  he  served  as  an  advisor  on 
humanitarian  issues  in  Iraq  and  France  for  the  French  Foreign  Ministry.  Mr.  Ojeda 
holds  a  master's  degree  in  international  humanitarian  action  and  a  master's  degree 
in  international  law  from  the  University  of  Aix-Marseille,  France. 

Mr.  W.  Hays  Parks  entered  federal  service  in  1963  as  a  commissioned  officer  in  the 
US  Marine  Corps.  Military  assignments  included  service  as  an  infantry  officer  and 
senior  prosecuting  attorney  in  Vietnam;  Marine  Corps  representative  at  The 
Judge  Advocate  General's  School,  US  Army;  congressional  liaison  officer  for  the 
Secretary  of  the  Navy;  and  as  Head,  Law  of  War  Branch,  Office  of  the  Judge  Advo- 
cate General  of  the  Navy.  Mr.  Parks  was  the  Special  Assistant  to  The  Judge  Advocate 
General  of  the  Army  for  Law  of  War  Matters  from  1979  to  2003.  He  has  served  as  a 
US  representative  for  law  of  war  negotiations  in  New  York,  Geneva,  The  Hague 
and  Vienna.  He  joined  the  Office  of  General  Counsel,  Department  of  Defense  in 
August  2003.  Mr.  Parks  occupied  the  Charles  H.  Stockton  Chair  of  International 

547 


Contributors 


Law  at  the  Naval  War  College  for  academic  year  1984-85.  In  1987  he  was  a  staff 
member  on  the  presidential  commission  established  to  examine  alleged  security 
breaches  in  the  US  Embassy  in  Moscow.  Mr.  Parks  has  lectured  on  the  law  affecting 
military  operations  at  the  National,  Army,  Air  Force  and  Naval  War  Colleges;  the 
military  staff  colleges;  and  other  military  schools  and  units.  An  adjunct  professor 
of  international  law  at  the  American  University  School  of  Law,  he  has  published 
articles  in  a  variety  of  military  and  legal  journals.  In  200 1  he  became  the  sixth  per- 
son in  the  history  of  the  US  Special  Operations  Command  to  receive  that  com- 
mand's top  civilian  award,  the  US  Special  Operations  Command  Outstanding 
Civilian  Service  Medal.  In  2006  he  was  awarded  the  US  Special  Operations  Com- 
mand's Major  General  William  F.  Garrison  Award  for  his  lifetime  legal  support  to 
US  Special  Operations  Forces. 

Mr.  Stephen  Pomper  is  an  attorney  adviser  in  the  Office  of  the  Legal  Adviser  at  the 
US  Department  of  State.  His  current  portfolio  includes  matters  relating  to  the  law 
of  war  and  US  government  counterterrorism  operations.  In  his  prior  assignment  at 
the  Department  of  State,  Mr.  Pomper  advised  the  Office  of  the  Coordinator  for 
Counterterrorism  on  law  enforcement  issues.  Before  joining  the  Department  of 
State  in  2002,  Mr.  Pomper  practiced  law  at  Geary,  Gottlieb,  Steen,  and  Hamilton. 
He  is  a  graduate  of  Harvard  College  and  Yale  Law  School. 

Professor  W.  Michael  Reisman  is  the  Myres  S.  McDougal  Professor  of  Interna- 
tional Law  at  the  Yale  Law  School,  where  he  has  been  on  the  faculty  since  1965.  He 
has  been  a  visiting  professor  in  Tokyo,  Hong  Kong,  Berlin,  Basel,  Paris  and  Geneva. 
He  is  a  Fellow  of  the  World  Academy  of  Art  and  Science  and  a  former  member  of 
its  executive  council.  He  is  the  president  of  the  Arbitration  Tribunal  of  the  Bank  for 
International  Settlements.  He  was  a  member  of  the  Eritrea-Ethiopia  Boundary 
Commission,  is  a  member  of  the  Advisory  Committee  on  International  Law  of  the 
Department  of  State,  vice  chairman  of  the  Policy  Sciences  Center,  Inc.,  a  member 
of  the  Board  of  the  Foreign  Policy  Association  and  has  been  elected  to  the  Institut 
de  Droit  International.  He  has  published  widely  in  the  area  of  international  law  and 
has  served  as  arbitrator  and  counsel  in  many  international  cases.  Professor 
Reisman  was  president  of  the  Inter- American  Commission  on  Human  Rights  of 
the  Organization  of  American  States,  vice  president  and  honorary  vice  president  of 
the  American  Society  of  International  Law  and  editor-in-chief  of  the  American 
Journal  of  International  Law.  His  most  recent  books  are  Foreign  Investment  Dis- 
putes: Cases,  Materials  and  Commentary  (with  Raymond  Doak  Bishop  &  James 
Crawford);  International  Law  in  Contemporary  Perspective  (with  Mahnoush  H. 
Arsanjani,  Siegfried  Wiessner  &  Gayl  S.  Westerman);  Jurisdiction  in  International 

548 


Contributors 


Law;  and  Law  in  Brief  Encounters,  Chinese  Translation,  Shenghuozhongde  Weiguan 
Falu  [Microscopic  Laws  in  Life] . 

Professor  Sir  Adam  Roberts  is  a  Senior  Research  Fellow  of  the  Centre  for  Interna- 
tional Studies,  Department  of  Politics  and  International  Relations,  University  of 
Oxford;  an  Emeritus  Fellow  of  Balliol  College;  and  President-elect  of  the  British 
Academy.  He  was  the  Montague  Burton  Professor  of  International  Relations  at 
Oxford  University,  1986  to  2007.  From  1968  to  1981,  Professor  Roberts  was 
Lecturer  in  International  Relations  at  the  London  School  of  Economics  and  Politi- 
cal Science.  From  1981  to  1986  he  was  the  Alastair  Buchan  Reader  in  International 
Relations  and  Fellow  of  St  Antony's  College,  Oxford.  Professor  Roberts  was  a 
member  of  the  Council  of  the  Royal  Institute  of  International  Affairs  (Chatham 
House),  London  from  1985  to  1991  and  a  member  of  the  Council,  International 
Institute  for  Strategic  Studies,  London  from  2002  to  the  present.  In  1990  he  was 
elected  Fellow  of  the  British  Academy.  In  1997,  he  was  elected  Honorary  Fellow, 
London  School  of  Economics  and  Political  Science.  In  2002,  Professor  Roberts  was 
appointed  Knight  Commander  of  the  Order  of  St.  Michael  and  St.  George 
(KCMG).  Professor  Sir  Roberts  has  published  several  books  on  the  theory  and 
practice  of  territorial  defense  and  international  relations  and  articles  in  numerous 
journals  and  various  newspapers,  including  the  American  Journal  of  International 
Law,  British  Year  Book  of  International  Law,  International  Affairs,  International  Se- 
curity, Review  of  International  Studies,  Survival,  The  Times  Literary  Supplement  and 
The  World  Today.  His  most  recent  book  is  The  United  Nations  Security  Council  and 
War:  The  Evolution  of  Thought  and  Practice  since  1945  (with  Vaughan  Lowe, 
Jennifer  Welsh  &  Dominik  Zaum). 

Professor  Marco  Sassoli  is  professor  of  international  law  at  the  University  of 
Geneva  (Switzerland)  and  chairs  the  boards  of  the  Geneva  Academy  of  International 
Humanitarian  Law  and  Human  Rights  and  of  Geneva  Call,  a  non-governmental 
organization  with  the  objective  to  engage  armed  non-State  actors  to  adhere  to 
humanitarian  norms.  He  is  also  member  of  the  board  of  the  International  Council 
on  Human  Rights  Policy.  From  2001  to  2003,  he  was  a  professor  of  international 
law  at  the  University  of  Quebec  in  Montreal,  Canada,  where  he  remains  an  associ- 
ate professor.  He  is  also  an  associate  professor  at  the  University  of  Laval.  Professor 
Sassoli  graduated  as  doctor  of  laws  at  the  University  of  Basel  (Switzerland)  and  is 
member  of  the  Swiss  bar.  He  held  a  number  of  positions  with  the  International 
Committee  of  the  Red  Cross  from  1985  to  1997,  including  deputy  head  of  its  legal  divi- 
sion, head  of  delegation  in  Jordan  and  Syria,  and  as  protection  coordinator  for  the 
former  Yugoslavia.  He  has  also  served  as  executive  secretary  of  the  International 

549 


Contributors 


Commission  of  Jurists  and  as  registrar  at  the  Swiss  Supreme  Court.  He  has  pub- 
lished on  international  humanitarian  law,  human  rights  law,  international  crimi- 
nal law,  international  law  and  private  actors,  the  sources  of  international  law  and 
on  state  responsibility.  With  Antoine  Bouvier  he  authored  the  second  edition  of 
How  Does  Law  Protect  in  War?,  which  was  published  by  the  International  Commit- 
tee of  the  Red  Cross  in  2006. 

Professor  Michael  N.  Schmitt  is  the  2007-08  Charles  H.  Stockton  Professor  of  In- 
ternational Law  at  the  Naval  War  College.  Professor  Schmitt  was  previously  Di- 
rector, Program  in  Advanced  Security  Studies  at  the  George  C.  Marshall  European 
Center  for  Security  Studies  in  Garmisch-Partenkirchen,  Germany,  where  he  re- 
turned as  Dean  of  the  College  of  International  and  Security  Studies  in  August  2008. 
Before  joining  the  Marshall  Center  faculty,  Professor  Schmitt  served  as  a  judge  ad- 
vocate in  the  US  Air  Force  for  twenty  years.  During  his  military  career,  he  special- 
ized in  operational  and  international  law  and  was  senior  legal  adviser  to  multiple 
Air  Force  units,  including  units  conducting  combat  operations  over  northern  Iraq. 
Formerly  on  the  faculties  of  the  US  Air  Force  Academy  and  US  Naval  War  College, 
he  also  has  been  a  visiting  scholar  at  Yale  Law  School  and  lectures  regularly  at  the 
International  Institute  of  Humanitarian  Law  and  the  NATO  School.  The  author  of 
many  scholarly  articles  on  law  and  military  affairs  and  contributing  editor  for  mul- 
tiple volumes  of  the  Naval  War  College's  International  Law  Studies  ("Blue  Book") 
series,  his  works  have  been  published  in  Belgium,  Chile,  Germany,  Israel,  Italy, 
Norway,  Peru,  Sweden  and  Switzerland.  Professor  Schmitt  serves  on  the  editorial 
boards  of  the  International  Review  of  the  Red  Cross  and  Yearbook  of  International 
Humanitarian  Law,  the  Executive  Committee  of  the  American  Society  of  Interna- 
tional Law's  Lieber  Society,  the  Steering  Committee  for  Harvard  University's  In- 
ternational Humanitarian  Law  Research  Initiative  and  as  Professorial  Fellow  at  the 
University  of  Surrey's  International  Law  Centre. 

Professor  Gary  D.  Solis  is  the  2006-08  Scholar  in  Residence  at  the  Law  Library  of 
the  Library  of  Congress.  He  is  an  adjunct  professor  of  law  at  Georgetown  Univer- 
sity Law  Center,  where  he  teaches  the  law  of  armed  conflict.  He  teaches  the  law  of 
war  in  San  Remo,  Italy  as  well.  He  is  a  retired  US  Marine  with  twenty-six  years  of 
active  duty,  including  tours  in  Vietnam  as  an  armor  officer.  He  holds  a  Juris  Doctor 
degree  from  the  University  of  California  at  Davis,  a  Master  of  Laws  degree  in  crimi- 
nal law  from  George  Washington  University  and  a  Doctor  of  Philosophy  degree  in 
the  law  of  war  from  the  London  School  of  Economics  and  Political  Science.  He 
taught  in  the  London  School  of  Economics  Law  Department  for  three  years  and 
then  moved  to  the  United  States  Military  Academy  in  1996.  He  received  the  2006 

550 


Contributors 


Apgar  Award,  given  to  West  Point's  outstanding  professor.  He  retired  from  West 
Point  in  2006.  His  books  are  Marines  and  Military  Law  in  Vietnam  and  Son  Thang: 
An  American  War  Crime.  He  is  writing  a  law  of  war  textbook  for  Cambridge  Uni- 
versity Press. 

Professor  David  Turns  is  Senior  Lecturer  in  Laws  of  War  at  the  Defence  Academy 
of  the  United  Kingdom  (Cranfield  University).  Prior  to  assuming  his  current  posi- 
tion, he  was  a  lecturer  in  law  at  the  University  of  Liverpool  (1994-2007).  In  2002  he 
spent  six  months  in  Vienna  as  a  visiting  professor  at  the  Institutfur  Volkerrecht  und 
Internationale  Beziehungen,  Universitat  Wien.  He  specializes  in  public  international 
law,  with  particular  emphasis  on  international  humanitarian  law  and  international 
criminal  law.  He  is  an  invited  member  of  the  International  Humanitarian  Law  Dis- 
cussion Group  at  the  British  Institute  of  International  and  Comparative  Law,  Lon- 
don, and  a  contributor  to  the  group's  Perspectives  on  the  ICRC  Study  on  Customary 
International  Humanitarian  Law.  Professor  Turns  has  published  on  several  public 
international  law  topics  in  a  variety  of  journals  in  the  United  Kingdom  and  other 
countries,  including  Australia,  Austria,  Germany  and  the  United  States.  His  latest 
publications  are  "The  'War  on  Terror'  Through  British  and  International  Human- 
itarian Eyes:  Comparative  Perspectives  on  Selected  Legal  Issues"  in  the  New  York 
City  Law  Review;  "Weapons  in  the  ICRC  Study  on  Customary  International  Hu- 
manitarian Law,"  which  appears  in  the  Journal  of  Conflict  &  Security  Law;  and  "The 
Treatment  of  Detainees  and  the  'Global  War  on  Terror'"  in  the  Israel  Yearbook  on 
Human  Rights. 

Brigadier-General  Kenneth  Watkin,  Canadian  Forces,  is  the  Judge  Advocate  Gen- 
eral of  the  Canadian  Forces.  During  his  twenty- five  years  as  a  military  legal  officer, 
Brigadier-General  Watkin  has  served  as  the  Deputy  Judge  Advocate  General/Oper- 
ations, Special  Assistant  to  the  Judge  Advocate  General  and  the  Assistant  Judge  Ad- 
vocate General/ Atlantic  Region.  He  has  also  been  the  director  of  offices  dealing 
with  human  rights  and  information  law,  operational  law,  claims  and  civil  litiga- 
tion, and  training.  His  operational  law  experience  has  included  service  as  a  legal  ad- 
viser to  the  Canadian  Navy,  adviser  to  Canadian  commanders  in  Bosnia,  and  as  the 
Deputy  Judge  Advocate  General/Operations  at  the  time  of  the  terrorist  attacks  on 
September  11,  2001  and  during  a  significant  portion  of  the  subsequent  deploy- 
ments in  connection  with  the  "Campaign  Against  Terrorism."  He  was  the  legal 
adviser  to  a  1993  Canadian  military/civilian  board  of  inquiry  that  investigated  the 
activities  of  the  Canadian  Airborne  Regiment  Battle  Group  in  Somalia.  From  1995 
until  2005,  he  was  counsel  in  respect  to  various  investigations  and  inquiries  arising 
from  the   1994  genocide  in  Rwanda.  Brigadier-General  Watkin  is  a  widely 

551 


Contributors 


published  author  on  a  variety  of  operational  law  topics,  including  the  law  of  armed 
conflict,  discipline  and  human  rights. 

Professor  Matthew  C.  Waxman  is  associate  professor  of  law  at  Columbia  Law 
School,  where  he  specializes  in  international  law  and  national  security  law.  He  pre- 
viously served  at  the  US  Department  of  State,  as  Principal  Deputy  Director  of  Pol- 
icy Planning  (2005-7).  His  prior  government  appointments  include  Deputy 
Assistant  Secretary  of  Defense  for  Detainee  Affairs,  Director  for  Contingency  Plan- 
ning and  International  Justice  at  the  National  Security  Council,  and  special  assis- 
tant to  National  Security  Adviser  Condoleezza  Rice.  He  is  a  graduate  of  Yale 
College  and  Yale  Law  School,  and  studied  international  relations  as  a  Fulbright 
Scholar  in  the  United  Kingdom.  After  law  school,  he  served  as  law  clerk  to  Supreme 
Court  Justice  David  H.  Souter  and  US  Court  of  Appeals  Judge  Joel  M.  Flaum.  He  is 
a  member  and  International  Affairs  Fellow  of  the  Council  on  Foreign  Relations 
and  a  member  of  the  Hoover  Institution  Task  Force  on  National  Security  and  Law. 
His  publications  include  The  Dynamics  of  Coercion:  American  Foreign  Policy  and 
the  Limits  of  Military  Might  (with  Daniel  Byman). 


552 


Index 


Abella  v.  Argentina  420,  429, 461,  514,  519 

Abu  Ghraib  160,  177,  215,  239,  287,  330,  345,  354,  367,  537 

Additional  Protocols  164, 223, 238,  276, 299,  303, 331,  357, 400, 406, 459 

Additional  Protocol  I  143,  147,  164-165,  167,  222-224,  228,  230-231,  238-239,  242, 276- 
277,  286,  297,  299-301,  304,  306,  318,  320,  322-323,  329-331,  333-334,  336-337,  359- 
360,  363,  365-367,  369,  371,  399-400,  404-405,  409-410,  418-419,  421,  425,  428,  430, 
433,  440-442,  444,  456,  458-460,  492,  497,  500,  513,  544 
Additional  Protocol  II  164-165, 167,  230,  239,  242,  286,  297,  306,  330,  360,  365-366,  369, 
371,  399-400,  404,  409-410,  419,  421,  425,  428,  430,  440-441,  444,  459-460,  497,  513 

Afghan  Interim  Authority  9,  52,  92, 121,  229,  242,  393-394 

Afghan  military  68, 146 

Afghan  National  Army  21, 29, 145,  235,  396 

Afghan  National  Police  18,150 

Ahmedzai,  Najibullah  8 1 

air  attacks  309,332 

Al  Qaeda  xxi,  xxiii-xxvi,  4,  7-9,  1 1-12, 16,  31,  33-36,  38,  50-54,  60,  62-63,  65-70,  72,  80,  82- 
86,  92,  95-102, 109,  111,  113-117, 120, 123-126, 129-133, 135, 139, 141-146, 150, 152, 
157-161, 166-167, 169-179, 186,  215,  220-221, 224-227,  229,  236,  238-241,  245,  249- 
251,  257,  261,  270-271, 273,  277-290,  292-293, 295, 298-300,  303-305,  308,  313,  315, 
317,  330,  344,  351,  354,  358,  367,  371,  374,  379-380,  382,  388,  392, 432-433, 442, 451, 
486,  525-527,  532,  537 
See  also  al-Qaida 

Alexandre  v.  Cuba  434-435, 457,  522 

al-Qaida  65,  139,  282,  344 
See  also  Al  Qaeda 

Al-Skeini  case  402-403, 410,  502,  522-523, 539 

American  Convention  on  Human  Rights  434, 449, 457, 497,  501,  514-515,  517-520 

Amin,  Hafizullah  69,81 

Amnesty  International  40,  74,  355,  456, 466, 480,  485,  511-512,  524,  529,  533-534,  536 

Amnesty  International  Canada  463, 480,  538-539 

Armed  Activities  on  the  Territory  of  the  Congo  case  47, 49,  56,  99, 106,  126,  128,  138-139, 152, 
456-457, 492,  500,  515-516,  521 

armed  attack  xxiv,  20, 44-47, 49-51,  72,  83,  85,  98-99,  104, 123-125, 127-130,  132,  138,  141, 
161, 194,  236, 270,  344,  394, 419 

armed  conflict  9,  11, 18-19,  31, 43-44, 48-49,  51-55,  80, 143-148, 150-151, 157,  159,  162- 
167,  169-170,  172-173, 181-206,  208-217,  219-222,  224-226,  229-231,  233,  237-241, 
251,  253,  261,  268-269,  272-273,  277-278,  280-281,  285,  299-300,  307-308,  310,  315, 
327,  329-332,  336,  343-355,  357-360,  362-369,  371-374,  378-380,  382,  389-392,  398- 
400,  402-406,  410-412,  416-422,  425,  428-433,  440-447,  449-454,  459-463,  466,  485- 
508,  510-511,  513-521,  524-536,  538-539,  544-545,  550,  552 


553 


Index 


armed  conflict  not  of  an  international  character  53,  159,  163,  198,  212,  238,  330,  354,  400,  418 
See  also  non-international  armed  conflict 

armed  forces  xxviii,  26,  47-48,  92,  121-122,  149,  158,  163-166,  168,  171,  175,  182-184,  186- 
188,  190,  192-194,  196,  199-201,  204-209,  211,  213-214,  216,  218,  222-223,  226,  233- 
234,  254,  261,  264,  268,  271-277,  289,  297,  300,  302,  311,  314,  317,  346,  359-362,  367, 
388,  391-392,  394,  400-401,  412,  417,  419-420,  425,  428,  430-431,  440-443,  445, 451, 
454,  459,  466,  486-488,  499,  503,  508-51 1,  522,  539 

arrest  19,  44,  93,  162,  335,  349,  364, 431,  436-437,  444-449,  451-453,  457,  460,  463,  522 

Article  5  tribunals  149,  171,  279,  347-348,  362-363,  368,  402,  460 

Ashcroft,  John  174,  179,  304,  376 

Australia  84,  88,  93,  143-145,  244,  251,  287,  410,  551 

B 

belligerency  53,  300,  445,  453,  488 

belligerent  xxiii,  43,  52-53,  70,  120,  176,  192,  199-200,  214,  218,  222,  224-226,  231,  242,  260, 

263-265,  270,  274,  294,  298,  305,  317,  327,  330,  347-348,  368,  390,  399-400,  402-403, 

463,  528 
bifurcated  conflict  169,  172-174,  182-183,  185,  190 
bin  Laden,  Osama  6-7,  62-63,  65,  82-85,  111,  129-130,  135,  143,  152,  161,  165,  240,  257, 

270-271,  288,  290,  293-295,  300 
Bonn  Agreement  38,  52,  65,  87-88,  92,  104,  121-122,  229,  393,  396,  470 
Boumediene  v.  Bush  304-305,  350,  368,  462,  518,  526,  528,  536-537 
Brahimi,  Lakhdar  14,  16,  31,  87,  257 
Bush,  George  H.W.  86,305 
Bush,  George  W.  57,  79,  82,  84,  87, 90,  117,  143-144,  152,  157,  159,  161,  166,  176,  220, 227-228, 

237,  251,  278,  280-281,  284-285,  295,  305,  330,  358,  366,  381,  387-388, 470,  509,  527 
See  also  Bush  administration 
Bush  administration  xxviii,  82-83,  87,  102,  160,  165,  171,  200,  211,  224,  250-251,  266,  268, 

275,  281-282,  284,  286,  291,  298-299,  305,  353,  392,  526 
See  also  Bush,  George  W. 


Canada  21,  93,  105,  114,  143-145,  287,  408,  411,  431,  453,  458,  463,  466,  480,  504,  523,  529, 

534,  536,  538-539,  545,  549 
Canadian  Charter  534,  538 
Caroline  case  49,  162,  177 

Central  Intelligence  Agency  81,  1 15,  1 18,  227-229,  233,  237, 241,  243,  293,  375,  381 
Chechnya  290,410,447,495 
China  11,  104,  187,  213,  253,  257,  298,  308 
civil  war  3,  6,  11,  13-15,  33,  43-44,  61-62,  82,  89,  164,  167,  172,  198,  213,  239,  247,  254,  256, 

258-259,  261,  272-273,  275,  284,  287,  291,  293,  296,  304,  346,  374,  395,  417,  488,  532 
civilian  casualties  18-19,  29,  52, 86, 94, 97, 1 14, 199,  310,  312-313, 323-324, 331,  359, 401, 502 
civilian  objects  189,  308,  311-312,  317,  323,  331,  359,  409 


554 


Index 


Clinton  administration  68,  82,  166,  256 

coalition  xxi,  xxiii,  xxv,  xxvii,  8,  10,  16,  18-21,  40,  42,  71,  93,  98-99,  101,  1 13-1 14,  1 19,  122, 

124-125,  130,  141-146,  148-149,  151,  181-182,  187,  226,  229,  236,  249,  251,  258,  261, 

270,  273,  275,  277,  283-284,  292,  307-309,  313-315,  324,  328,  330,  338-339,  343-345, 

350-352,  358-359,  367,  388-389,  392-394,  396-397,  401,  412,  415,  421^124, 436-438, 

453,  485-486,  527,  534-535,  543 
COIN  4,  18,  22-27, 40,  309-310,  321-322,  332,  337,  415-416,  427,  468,  480,  508,  524 

See  also  counterinsurgency 
Cold  War  7,  10,  13-14,  20,  23,  33,  38,  137,  467 
collateral  casualties  116 

collateral  damage  52,  97,  106,  147,  229,  309-313,  316,  321-325,  328,  331,  337,  395,  401 
collateral  damage  estimate  methodology  311,  321-322,  328,  332-333 
collective  self-defense  50,  83,  103,  121,  123-124,  142,  146,  161,  393 

See  also  self-defense 
combat  operations  19,  21,  52,  85,  103,  183,  186-190,  199-200,  203,  206,  213,  217,  229,  261- 

262,  299,  320,  335,  345,  388,  391-392,  401-402,  405, 412-416,  424,  427,  467,  534,  550 
combat  power  184,  188,  193,  195-198,  200-206,  208-211,  218,  331 
combatant  immunity  195,261,440,442 
Combatant  Status  Review  Tribunals  362,  381,  528 
conflict  spectrum  412,  415-417,  422,  425 
Corfu  Channel  case  49,  56,  73,  75 
counterinsurgency  xxiii,  xxvi,  4,  9,  11,  13,  17,  19,  21-24,  27,  30,  33,  36-37,  40-41,  68,  71,  94, 

102,  139,  291,  309-312,  321-323,  328-329,  332,  343,  351-352,  388,  392,  396,  401,  415- 

416,421-424,426,468,508 
See  also  COIN 
courts-martial  233,  235,  243,  409,  543 
covert  missions  1 16-1 17,  133 

cross-border  attacks  71,99, 101,  109, 114-115,  118, 124-125, 128 
cross-border  operations  xxiv,  109-111,  116-126,  128,  131-134,  360 
cultural  property  189,  331,  359 
customary  international  law  47,  72,  127, 147, 150,  168-169,  171,  189,  231,  242,  328,  330-331, 

338,  358-359,  374,  392,  396,  398,  403, 419,  421,  423,  433,  442,  531 
Cyprus  20,  388,  456-457,  495,  501-502,  516-517,  519-520,  522 

D 

Daoud,  Mohammad  81,  160,  253 

deadly  force  202-203,  205,  208,  211,314 

Delahunty,  Robert  167,  169,  172-173,  178-179,  215,  239,  304 

Democratic  Republic  of  Afghanistan  61 

Department  of  Justice  158-160, 175,  178-179,  215,  251,  279,  369, 470 

Department  of  State  xxv,  xxviii,  96,  160,  168-171,  173,  176,  178-179,  183,  209,  215,  217,  220, 

224,  239,  241-242,  256-257,  279,  294,  304,  338,  354-355,  470-471,  474,  481,  525,  528, 

530,  537,  545-546,  548,  552 
See  also  Secretary  of  State 
deportation  220,  230-232,  242 

555 


Index 


deprivation  of  liberty  357-358,  360,  363-365,  368,  373, 444,  448, 453 

derogate  438,  449,  454,  461,  492-493,  496-498,  502,  505,  517-518,  530,  532 

derogation  439, 447, 449,  453,  490, 492-497,  505,  507,  513-514,  517,  520,  531 

detain  xxvi-xxvii,  21,  149-150,  157-159,  162,  173-176, 182, 195,  203,  207-208,  218,  224-225, 

231-234,  243,  262,  278-280, 282,  305,  320-321,  343-353,  355-356,  358,  361-366,  369, 

371-383,  402-403,  405,  409-410,  431-432,  436-438,  443, 445-446, 453,  455, 457-458, 

460,  494,  497,  500-503,  505-510,  514,  518,  522,  524,  526-528,  532-537,  539 
See  also  detention 
detainee  21, 157-159,  173-176,  182,  224,  233-234,  243,  278-280,  282,  305,  345-353,  356,  362- 

364,  366,  375-379,  381-382,  403,  405,  409-410,  437-438,  453,  457-458,  494,  497,  500, 

506,  509-510,  514,  518,  526-528,  532-537,  539 
detention  xxv-xxvi,  53,  143,  149-151,  162-163, 167,  169, 175-176,  218,  343-345,  347-353, 

355-358,  363-366,  369,  371-383, 401,  431-432, 436, 438-439,  444-446, 448, 453,  455- 

456, 458,  461,  472, 493-498,  501-503,  505-508,  514,  517-518,  520,  522,  524-526,  528, 

532,  535,  539,  547 
See  also  detain 
detention  operations  xxvi,  150,  343-345,  347,  351,  514,  528,  535 
detention  policy  376,  379,  525 

direct  participation  220,  314-315,  317-319,  327,  334,  336,  374,  381,  441, 458-459 
discrimination  14,  262,  266,  270,  401, 449 
distinction  4,  23, 46,  50,  88,  131,  163,  166-168,  175,  186-187,  197,  200,  202-204,  250, 261, 

263,  269,  275-276,  287-288,  294,  296,  303,  308,  311,  314,  328,  330,  359,  374, 401,  409, 

440-441, 443, 458,  489,  515,  531 
DoD  Directive  3000.05  406-407,  413,  415, 426,  467, 470,  473, 480-481 
domestic  law  44-45,  152,  162,  171,  175,  206,  224,  242-243,  349-350,  363-364,  374-375, 402, 

422,  444,  454-455,  488-489,  497,  512,  527 
due  process  44,  349, 448,  496,  498,  508-510,  524 
Durand  Line  11,111,134,290 


effects-based  targeting  xxvii,  466,  476-479 

Egypt  220, 253 

embassies  82,  123,  142,  166,  240,  248,  257,  293,  534 

Enemy  Combatant  Review  Board  350 

enemy  combatants  222,  225-226,  240,  298,  346,  350,  352-353,  356,  376,  381, 462,  514,  518 

European  Commission  of  Human  Rights  436,  490,  495,  508,  517,  520 

European  Convention  on  Human  Rights  150,  402-403, 405, 410,  434, 436, 439,  446-449, 457, 

461-462,  516,  522,  534-535,  538-539 
European  Convention  on  the  Suppression  of  Terrorism  45,  55 
European  Court  of  Human  Rights  152, 402-403, 434-436, 438, 446-449, 456, 458, 462, 466, 

490,  495-496,  501-502,  504,  507-508,  516-517,  534,  538-539,  545 
European  Union  91,  248,  258,  293,  397, 408,  506 
Ex  parte  Quirin  225,  240 

extraterritorial  armed  conflict  186,  525-526,  529,  534,  539 
extraterritorial  law  enforcement  xxiv,  183,  194, 196,  202,  205-206,  208,  210-211 

556 


Index 


failed  State  26, 165,  167,  170,  174,  209,  239,  254,  258-260,  279,  284,  304 
feasible  precautions  311,  313,  321,  324-325,  329 
Federally  Administered  Tribal  Areas  1 1-12,  36,  38,  1 13-1 15, 1 19, 134 
FM  3-07  407, 422, 425-428, 430 

See  also  stability  operations 
foreign  fighters  100,  111,  113, 116, 120, 124, 127,  232,  289 
foreign  forces  3,  21,  30, 133, 358,  360, 433, 435, 439,  504 
France  14, 41,  93, 143, 152, 265, 298,  301-302, 408-409, 458, 480, 494,  512,  516,  518,  523,  539, 

547 
Free  French  192,273-275,300-301 
Freikorps  222-223 
French  Indochina  27,  30 
Frontier  Corps  12,114-116,135 


Geneva  Accords  13, 38,  81 
Geneva  Conventions 

Common  Article  2  162-164, 170, 172-173, 185-186, 188, 190, 198,  209-210,  212,  214, 

221-224,  226,  237,  239,  269,  274, 299-300,  329,  398,  428, 433,  527 
Common  Article  3  53, 150, 159, 162, 164-165, 167, 172-173,  184-187, 189, 198,209-210, 
212-213,  215,  221, 224-225,  231,  238-239,  266, 278-279,  282,  298,  330,  345-347,  354, 
360,  368,  371-374,  379,  399-402, 404,  409,  418-419,  425,  430,  440-441,  445,  459,  488, 
492-493,  509,  513,  516,  527-528 
Geneva  Convention  I  57,  149, 152, 177-178,  214,  230-232,  237-239, 242,  329-330,  355, 

360-363,  365-368,  402, 456, 459-460,  513-514,  521,  536-538 
Geneva  Convention  II  57, 149, 152,  177-178,  214,  237-239,  329,  355,  360-363,  365-368, 

402,456,460,536-538 
Geneva  Convention  III  57, 149,  152, 158, 166, 171, 173, 177-178, 190,  214,  237-240,  276, 

284,  299,  329,  345,  355,  360-363,  366-368,  383, 402, 445, 456, 458, 460,  537-538 
Geneva  Convention  IV  57,  152, 177,  230-232,  237, 239,  242, 266,  275-277,  329,  350,  361, 

363,  365,  374,  379,  402,  430,  444,  453,  456,  459-462,  513-514,  521,  537 
See  also  Article  5  tribunals 
Germany  21,  39, 44,  65,  87,  93-94, 104, 121, 142-143, 152,  222,  228-230,  266,  273, 285, 409, 

436,  458, 469-470,  480,  522-523,  544-545,  550-551 
Global  War  on  Terror  xxiii,  143-145, 195,200,211,245,330,381,388,409,415,551 

See  also  War  on  Terror 
Gonzales,  Alberto  173-174, 176, 179,  232-233,  239,  243, 279, 281,  304-305 
Guantanamo  Bay  xxv,  169, 176,  220,  230-234,  280, 305,  343, 345-347,  350,  352-353,  355,  358, 

362-369, 375,  377,  381-382,  460,  501,  506,  514,  518,  525-526,  528,  533,  537 
guerrillas  126,219,263,269,380 


557 


Index 


H 

habeas  corpus  53,  348,  350,  444,  449,  453,  462,  493,  528 

Hague  Convention  II  264-265,  276,  304 

Hague  Convention  II  with  Respect  to  the  Laws  and  Customs  of  War  on  Land  266,  296,  304, 

367,  430 
Hague  Convention  IV  266,  275-277 
Hague  Peace  Conference  264,  266,  273 
Hague  Regulations  300,359,421,430 
Haiti  168,  213,  304,  388,  390,  394-396,  405, 407,  427 
Hamdan  v.  Rumsfeld  44,  55,  184-186,  189,  198,  213,  215,  224-225,  240,  330,  343,  346-348, 

353-354,  364,  368,  379,  409,  527,  537 
Hamdi  v.  Rumsfeld  353,  369,  382,  527,  536 
Hellfire  missiles  1 16,  227,  229 
Hess  v.  United  Kingdom  436-437,  457 
Hezbollah  126,  138,  195-196,  198-199,  339 

High  Contracting  Party  159,  162,  164,  167,  170,  239,  271,  278,  282,  345,  399-400,  404,  527 
hors  de  combat  163,  213,  285,  373,  401,  440-441,  447, 451 
hostile  act  47,  214,  314-316,  318,  326-327,  335,  441 
hostile  intent  315-316,  326-327,  335 
hot  pursuit  72,  116,  132,  136 
Human  Rights  Act  1998  402-403,  410 
human  rights  law  xxvii-xxviii,  150-151,  215,  238,  259,  286,  335,  346-347,  349-350,  353,  364- 

365,  372-373,  402,  417,  419,  421-422,  430-431,  434,  442,  446,  457-458,  460,  462-463, 

485-500,  502-516,  518,  520-526,  528-532,  534-537,  545,  550 
human  rights  obligations  xxviii,  210,  434,  439,  458,  488,  492-493,  500,  502-507,  510,  526,  529, 

533-534,  538-539 
Human  Rights  Watch  18,  39,  138,  212,  291,  293,  313,  322,  324-326,  334,  337-338,  485,  511 
human  shields  97,  322,  337,  359 
humane  treatment  157,  184-185,  189,  261-262,  266,  278-279,  282,  284,  346,  365,  372-373, 

380 
humanitarian  intervention  392,  398,  420 
humanity  169,  187,  200,  206,  213,  230,  265,  327 
Hussein,  Saddam  86,  388,  436,  457 

I 

ICRC  145,  149,  164,  188,  191-193,  195,  214-215,  227-228,  231,  268,  270-271,  274,  287,  301, 
303,  312,  317-318,  320,  328,  330,  333-334,  336-337,  349,  355,  357,  361,  367-369,  372- 
373,  377-380,  382-383,  418-419,  425,  428,  433,  441-442,  444-445,  450,  453,  456,  458- 
459,462,520,547,551 
See  also  International  Committee  of  the  Red  Cross 

Ilascu  v.  Moldova  and  Russia  501,  522 

Ym  Alone  case  72,  75 

India  5,  11,  33,  79,  82,  101,  110-111,  115,  219,  256,  294,  520-521,  545-546 

indigenous  attire  xxvi,  249-250,  275,  277,  303 

558 


Index 


insurgency  xxiii,  xxvi,  4,  9,  11-13,  17-19,  21-27,  29-30,  33-42,  68,  71,  94,  96,  100,  102,  107, 

113, 119-120,  122,  134,  139,  255,  291,  309-312,  316,  321-323,  328-329,  332-333,  343, 

351-352,  356,  360,  375,  381,  388,  392,  396,  401, 404, 406,  415-417,  421-424,  426-427, 

468,486,508,514,524 
insurgent  xxvii,  3,  9,  19,  24-27,  29,  35,  41,  44,  51-53,  70,  72,  101,  113,  134,  145,  167,  183,  228- 

229,  231,  300,  309-310,  317,  321-322,  328,  338,  351-353,  375,  389,  397-399, 404,  416- 

417,422 
intelligence,  surveillance  and  reconnaissance  308,  316,  321,  324 
intelligence  value  xxvi,  375-379,  381-382 
Inter- American  Commission  on  Human  Rights  374,  380,  429,  434,  447,  490,  495-496,  501, 

504,  506 
Inter-American  Court  of  Human  Rights  434,  449,  490, 495^96,  501,  506 
Inter-American  Treaty  of  Reciprocal  Assistance  46,  56,  85 
internal  armed  conflict  145,  167,  186-187,  189-190,  206,  212,  216,  222,  349,  380,  410,  417- 

419,421,428,514 
international  armed  conflict  xxv-xxvii,  9,  11,  18,  43-44,  51-53,  55,  143-145,  147,  150-151, 

164,  167,  169,  173,  182-183, 185,  189-191,  193-195,  212-213,  215-216,  221-222,  224, 

229,  231,  237-238,  241,  261,  268-269,  272-273,  278,  300,  307-308,  329-331,  336,  346, 

348-349,  357-360,  362-365,  367-368,  371-374,  378-380,  389,  398-400,  404,  410-411, 

418-419,  421,  432-433, 440-445,  447,  452-454,  459-461,  463, 486,  490,  493-499,  502- 

503,  505-508,  511,  519-520,  528-530,  532,  538 
International  Committee  of  the  Red  Cross  xxvi,  145, 164,  188, 213,  227,  285-286,  301,  312, 

330,  338,  349,  357,  361,  372,  418,  433,  528,  545,  547,  549 
See  also  ICRC 
International  Convention  for  the  Suppression  of  the  Financing  of  Terrorism  45,  55 
International  Court  of  Justice  xxiv,  xxviii,  46-50,  73,  99,  106, 110-111,  124-125,  127-128, 

134,  137-138, 150,  338,  368, 400,  419,  434,  448-449,  456-458,  461,  490,  522,  530,  545- 

546 
International  Covenant  on  Civil  and  Political  Rights  349,  355,  434,  448-449,  457-458, 461, 

486,  491-492,  494,  497,  500,  504-505,  514-523,  529-533,  537-538 
International  Criminal  Court  73,  106,  110,  134,  230,  242,  371,  379,  434,  448-449,  457-458, 

460,461,463,514,522,544 
international  humanitarian  law  xxvi,  15,  17,  152,  170,  185,  211-212,  215,  217,  240,  307-308, 

312-314,  317-318,  320-322,  325,  327-331,  333-338,  355,  357,  360-361,  363-368,  372- 

374,  380,  398,  429,  431-433,  436,  440-441,  443-445,  447,  449-455,  458-459,  461-463, 

495,505,513,519-520,531 
international  security  xxiv,  3-4,  7,  15-16,  29-30,  32-34,  100,  393 
International  Security  Assistance  Force  xxiii,  xxv,  8-9,  18-22,  30-33,  36-38,  40,  52,  65,  68,  71, 

91-92,  94,  100,  102,  121-122,  137,  144-146,  148-151,  153,  220-221,  312,  345,  365-366, 

393-396,  398-403,  408-409,  422,  439,  463,  486,  503-505,  512,  527,  534-536 
international  war  3-4,  8-9,  11,  31,  54,  172,  185 
internee  53,  350,  363-364,  368,  377,  439,  454 
internment  151,  358,  363,  365,  368,  372,  374-375,  378,  439,  443-445,  448,  453-454,  460-461, 

493,497,505,508,514,520 
interrogation  175,  222,  225,  233,  376-378,  382,  525 
Inter-Services  Intelligence  Directorate  61,  68,  81,  135,  254-255,  273,  301 


559 


Index 


Iran  1 1,  15,  28,  34,  56-57,  82,  87,  104,  127-128,  134,  138,  253,  256-257,  294,  435,  547 

Iraq  xxv,  10,  17,  22,  25-27,  32-33,  42,  49,  54,  68,  72,  79,  86,  93-95,  98,  102-103,  109-110,  127, 

130,  135,  137-138,  145,  151,  224,  228-230,  232-236,  243-245,  270,  287,  291,  304,  315- 

316,  325,  332-333,  335,  337-338,  345,  352,  355-356,  365-366,  376-377,  382,  388,  390, 

392,  402-404, 413-414,  427,  430, 435-436, 438,  456-457,  467,  469,  474,  479,  482,  501- 

502,  506,  518,  523-524,  533,  538,  545,  547,  550 
irregular  forces  72,  99,  126,  302 
irregular  warfare  309,414,416-417 
Islam  7-8,  23,  25,  30,  33,  37, 42,  61-62,  69,  81-82,  84, 96, 102, 104,  111,1 14-115,  1 19,  130, 

134,  137,  139,  220-221,  252,  254-255,  257,  287,  290,  293,  295 
Islamic  Council  of  Afghanistan  254 
Islamic  Emirate  of  Afghanistan  8,  61,  295 
Israel  xix,  xxi,  16, 43,  55,  57,  99,  106, 125-126,  138,  195-196, 198-199,  212,  215-216,  228, 

241-242,  286,  330,  336-339,  366-367,  400-401,  409,  422,  429-431, 434,  456,  458-459, 

463,  491-492,  500,  514-515,  519-521,  543-544,  547,  550-551 
Issa  and  Others  v.  Turkey  435, 457,  502,  522,  538-539 
Italy  44,  81,  93,  104,  229,  298, 458, 461, 470,  516,  550 
ius  cogens  439,  504,  523 

j 

judge  advocates  xxviii,  316,  328,  335, 465,  470 

jurisdiction  53,  110,  134,  161,  173,  182,  185,  216,  362,  374,  376,  403,  434-439,  452, 457, 487, 

499,  501-504,  511-512,  515-516,  521-522,  529-530,  538-539 
jusadbellum  xxiv,  xxvii,  50,  52,  80,  85,  109-110,  116,  118-120,  123, 126-127,  129-133,  138, 

162,  166,  197,  203-205,  297,  357,  389,  392,  397,  408,  418-419,  427, 458 
jus  in  bello  xxiv-xxv,  xxvii,  50,  52-55,  80,  85,  97,  188,  197,  203,  209,  297,  357,  389,  392, 406, 

408,418,427,458 
jus  militaire  262,  270 

K 

Karmal,  Babrak  61,81 

Karzai,  Hamid  7,  16,  19,  32,  51-52,  62,  69-72,  74,  80,  84,  87-91,  94,  96-97,  100-101,  104-106, 

124,  288, 291-292,  308,  313,  334,  389, 433 
Kashmir  220,  255,  257 
Kayani,  Ashfaq  Parvez  119,  136 
Kazakhstan  256,294 
Kenya  82,  123, 142-143,  166,  257,  388 
kinetic  147,391 
Korea  xxviii,  168,  394, 396 
Kosovo  54,  338,  390, 402, 466,  504,  523 
Kurdistan  Workers'  Party  72,  110 
Kyrgyzstan  84,  256,  294 


560 


Index 


law  enforcement  xxiv,  44-45,  49-50,  54,  145,  150,  162,  166,  175,  183,  194-197,  201-211,  218, 

381,  415, 420,  422,  429,  443,  446,  452,  461,  463,  535,  548 
law  of  armed  conflict  xxiii,  xxvi-xxviii,  54,  97,  144,  146,  148,  182-183,  187,  190,  194,  197,  200, 

217,  220,  233,  343,  345,  347-353,  371,  389,  402,  412,  417-422, 425,  430, 487-503,  505, 
507,  510-511,  516-517,  519-520,  528-532,  535-536,  544 

law  of  war  xxiii,  xxv-xxviii,  54-55,  73,  158,  166-167,  178,  182,  184,  186,  188-190,  194-211, 

218,  220,  222,  224-228,  232-235,  243,  247,  249-251,  260-263,  265-268,  270-272,  275- 
276,  279-281,  283-286,  291-298,  303,  371-375,  377-378,  380-381,  389,  398,  400-404, 
409,  425, 428-429, 459,  514,  538,  543,  546-548,  550-551 

lawful  combatant  53,  149,  159,  224-226,  231-232,  243,  263,  265-266,  269,  277-278,  283-285, 

298,318,345-346,362,374 
lawful  target  147,228,311,314,327 

laws  and  customs  of  war  188, 230,  264-265,  268-269,  274, 298-299,  361,  366 
lead  nation  393,470 

Lebanon  13, 16, 126, 138, 183-184, 189, 195-196, 198,  212,  214-216,  339,  519,  521,  545,  547 
Legality  of  the  Threat  or  Use  of  Nuclear  Weapons  Advisory  Opinion  50,  56,  106, 138, 429, 462- 

463,  512-513,  515,  530-531,  537 
legitimacy  16,  20,  31-32,  90, 213,  216,  218,  228,  270, 310,  312,  329-330,  353,  364,  389,  392, 

396,  398, 416, 425, 468, 478,  508,  521,  524 
lethal  force  227,  395, 447, 451, 496,  535 

lexspecialis  348, 436, 444, 449-452, 454, 462-463, 497-498,  526,  531-532,  538 
liberty  349,  357-358, 360,  362-365,  368-369,  373,  380, 432, 444, 448,  453, 461 
Lieber,  Francis  263-264,  269,  273,  298,  302,  550 
likely  and  identifiable  threat  315-320, 325,  328,  335-336 
Loizidou  v.  Turkey  456, 458,  501,  522 
Loya  Jirga  87-88,  229,  308,  349, 360, 433 

M 

Malaya  20,  24-25, 41,  71,  291,  298,  388 

Martens  Clause  265-266,  302 

McCain,  John  34, 93 

Mehsud,  Baitullah  71, 113, 135 

Military  and  Paramilitary  Activities  in  and  Against  Nicaragua  case  47-50,  56,  74, 124-125,  127, 
132,  137-138,  368,  400,  409,  419-420,  429,  521 

military  doctrine  xxiv,  4, 17-18,  22,  291,  309,  388, 412-414,  416-417, 423, 430, 467-168 

military  necessity  159,  187, 199-200,  203,  206,  218,  225, 278,  318-319,  326,  328-329,  336,  346, 
353,  440,  530 

military  objective  5,  69,  97,  143,  202-204,  206,  261,  283, 294,  306,  308,  311,  323,  333, 409 

military  operations  xix,  xxi,  xxiv-xxv,  xxvii,  17-18,29,  110, 114-116,  118,  134,  161,  164,  181, 
184, 187-188, 190, 194-211, 213-217,  221,  248-249, 261-262,  264,  273,  275,  285,  295, 
302,  317, 323, 328, 333-334, 344-345, 359-360,  380, 388-389, 391, 395, 400, 403, 405, 
416-417, 420, 427, 429, 465-469, 471, 479, 485, 495, 499,  507,  509-51 1,  526,  528,  535,  548 

military  operations  other  than  war  389, 416, 427 

561 


Index 


militia  81,  103,  167,  172-173,  183,  190-193,  217,  229,  239,  264-265,  268,  271-272,  276,  289- 

290,293,388,392,405,417 
militia  group  192-193,217 
mujahidin  6-7,  61,  253-254,  271,  289-290,  315 
Munaf  v.  Green  533,  538 
Musharraf,  Pervez  72,  84 

N 

Najibullah,  Mohammed  61,  69,  81,  103,  223,  254,  291 

narco-State  80,  96 

narcotics  80,  87, 96, 100,  236,  309 

nation  building  87,  99-100 

NATO  xxi,  xxiii-xxv,  4,  9-10,  17-22,  24,  30,  32-33,  38-39,  44,  46,  55,  71,  80,  85,  90-95,  100- 

102,  105-106,  122,  126,  135,  137,  142,  145-148,  151-152,  235-237,  244,  248,  313,  323- 

324,  326-327,  334,  345,  366,  392,  395-397,  400,  403-404,  407-409,  413,  423,  430,  439, 

502,  504,  512,  527,  534-536,  539,  550 
necessity  127-128,  130-131,  133,  139,  159,  187,  189-190,  197,  199-200,  203,  206,  216,  218, 

225,  250,  254,  275,  278,  302,  315,  318-319,  325-329,  331,  336,  346,  351,  353,  401,  426, 

429,  440,  452,  470,  494,  517-518,  520,  530 
Netherlands  93,  114,265,287,461,512,516 
noncombatants  234,  243,  298,  348,  512 
non-derogable  right  449,  492-494,  518 

non-governmental  organizations  29,  69,  88,  100,  259,  323,  329,  468,  475,  481,  545 
non-international  armed  conflict  xxv-xxvii,  9,  1 1,  43-44,  51-53,  55,  145,  147,  150,  164,  167, 

182,  185,  189-190,  193,  212-213,  221,  231,  238,  241,  278,  300,  308,  330,  336,  349,  357- 

358,  360,  363-365,  367-368,  371-372,  374,  378-379,  389,  398,  400,  404,  410,  419,  432- 

433,  440-445,  447,  453-454,  459-460,  463,  486,  490,  494-499,  502-503,  505-507,  511, 

519-520,  528-529,  532,  538 
See  also  armed  conflict  not  of  an  international  character 
non-refoulement  405,  528,  532-534 
non-State  actor  xxiv-xxv,  45-46,  83,  85,  98-99,  109,  118,  123,  125-127,  132-133,  167,  196, 

271,  276,  388,  417,  420,  433,  444,  454,  463,  533,  549 
non-State  armed  groups  186,  358,  360,  454,  499 
Northern  Alliance  xxiii,  8-10,  14,  18,  32,  37,  51,  65,  82-84,  86-87,  145,  151,  161,  175,  221- 

222,  227,  255-256,  277,  283-284,  289,  294-295,  303,  305,  367,  486 
Northern  Ireland  26,  151,  164, 405, 407, 495,  508,  516,  520 

O 

Obama,  Barack  xxviii,  34,  36,  72,  75, 93,  98,  343,  368,  379,  525 

occupation  xxiii,  11,  30,  52-53,  61-62,  67,  81,  87,  94,  162,  219,  229,  231,  247,  253-254,  260, 

265-267,  271,  275,  290,  296,  298-299,  305,  399-400,  402-403,  415,  417,  421,  430-431, 

466, 494,  501-502,  510,  521,  524,  530,  538 
occupying  power  230,  260,  296,  402,  416,  421-422,  433,  437,  457,  500,  521 


562 


Index 


Office  of  the  Coordinator  for  Reconstruction  and  Stabilization  470-471,  481 

Oil  Platforms  case  50,56,  127-128,  138 

Omar,  Mohammed  71,  254-255,  257-259,  294-296,  533 

Operation  Allied  Force  323,  327 

Operation  Anaconda  85,  295,  320,  334,  336 

Operation  Enduring  Freedom  xxv,  19,  30,  74,  86,  122,  143-146,  151,  182,  196,  220,  222,  226- 

227,  292,  297,  307,  333,  336,  344-347,  366,  393,  395,  409,  480-482,  527 
Operation  Iraqi  Freedom  291,  315-316,  325,  333,  335,  337-338,  545 
Operation  Just  Cause  217,279,305 
organized  armed  groups  164,  189,  214,  269,  273,  311,  314,  317,  330,  398,  400,  419, 421 


Pakistan  xxiii-xxv,  4,  7-9,  11-13,  28-29,  32-38,  42,  51-52,  61,  68,  70-72,  74,  79-82,  84-86, 

92,  95-99,  101,  103-107,  109-111, 113-125,  128-136, 139,  143,  226,  228-229,  236-237, 

241,  245,  253-258,  272-275,  290-295,  297,  308,  360,  367,  521 
Palestinian  46,  56,  99, 106, 138,  241,  367,  400,  419,  428-429,  456,  462,  492,  513,  515-516,  519, 

521,531,537,547 
paramilitary  47-48, 114,  134,  222,  237,  309,  524 
partisans  263,  269 

Pashtun  6-12,  35,  61,  84,  88,  111,  113-115,  252,  254,  258,  261,  290-292,  295,  308 
peace  enforcement  83,  92,  389,  415-416 
peace  operations  390,414,423,426 
peacebuilding  4,21,391 
peacekeeping  13,  20-21,  87,  91-92,  102,  199,  207,  217,  389-390,  394-395,  398, 407,  410,  415- 

416,  420,  423-424,  429,  438,  458 
People's  Democratic  Party  of  Afghanistan  61,  69,  253-254, 290, 295-296 
perfidy  236,  262,  277-278,  303-304 
Powell,  Colin  86, 104,  174,  179,  239,  279,  304-305 
precautions  in  attack  313,  321,  323,  325,  329,  337,  359,  404,  409 
Predator  116,  118,  120,  124,  132-133,  135,  183,  227-229,  240-241 
prisoner  of  war  xxvi,  53,  149,  167,  171-173,  176,  191-192,  217,  220,  222-226,  231-232,  234, 

239,  249-251,  261-265,  267-273,  275-285,  298-302,  304-305,  345-346,  358,  360-364, 

367,  402,  443,  445,  453-454,  460,  527 
private  armed  groups  268,  270,  272-273,  281,  284-285,  300 
proportionality  127-131,  133,  147,  200,  206,  312,  321-323,  329,  359,  401,  409,  440,  447,  517, 

531 
protected  persons  230-232,  242,  383,  515 
Provincial  Reconstruction  Teams  20-21,  396,  408,  470,  478,  481 


R 


Rashid,  Abdul  9,  37-38, 41,  221,  288-294,  303 

refugees  4,  1 1,  28,  32,  34,  42,  390,  405 

regime  change  31,  61-62,  65,  68-70,  73,  86,  219,  395 


563 


Index 


regular  armed  forces  47, 125,  168, 171,  186,  188,  193,  268,  272-275,  277,  359,  361,  367 
Responsibility  of  States  for  Internationally  Wrongful  Acts  47,  56, 136, 148, 152,  223,  238 
right  to  life  436-437, 446-447,  449,  452,  457, 459,  503,  507,  531,  538 
rule  of  law  xxvii,  17,  176,  310,  338,  352-353,  41 1,  413,  417,  421,  425,  430, 465-481,  486,  508, 

510 
Rule  of  Law  Handbook  424,  430,  466, 468-469,  473-474,  476-478,  480-481 
rule  of  law  operations  xxvii,  430,  466,  469-474,  476-477,  479 
rules  of  engagement  116,  136,  143,  211,  214,  314-316,  321-322,  324,  326,  328-329,  335- 

338, 389 
See  also  Standing  Rules  of  Engagement 
Russia  5,  11,  81-82,  104,  160,  213,  219,  228,  252,  256,  290,  294,  296,  298,  326,  410, 417,  461, 

497,501-502,517,522 
Rwanda  34,230,242,514,521,551 


Saudi  Arabia  61,  255-258,  270,  273-275,  294,  297,  300,  367 

Second  World  War  187-188,  230,  268,  274-275,  299,  301, 436, 488 

Secretary  of  State  49,  86,  159,  174,  176,  224,  278-279,  381,  402,  410,  438,  457,  471, 480,  518, 

522-523, 539 
See  also  Department  of  State 
self-defense  xxv,  15,  45-46, 49-51,  64-65,  67-68,  71-72,  83,  85-86,  92,  99, 103-104, 109, 116, 

118,  121,  123-127,  129-133,  138-139,  142, 145-146,  150-152,  161-162,241,314-316, 

325-327,  334,  389,  393, 401,  406,  422,  429,  446,  505,  527,  535 
See  also  collective  self-defense 
Sharif,  Nawaz  15,  84,  119,  221-222,  227,  255-256,  289,  293-294 
Sierra  Leone  397-398,  408 

Somalia  10,  34,  54,  137,  168,  196,  217,  252,  277,  294,  304,  352,  387-390, 405,  427,  551 
South  Vietnam  24-26,41,243 

Soviet  Union  6,  13,  33,  61-62,  69,  81,  219,  266,  289,  305,  366 
Spain  44,93,213,512 

Special  Forces  65,  221,  249,  257,  275-277,  283,  286-287,  289,  296,  303,  305,  335 
special  operations  xxvi,  79,  84,  95,  98-101,  116-117,  119,  122,  132,  136,249-250,281,287, 

302,  335 
stability  operations  xxiii,  xxvii,  389-392,  394-398, 400-403, 405,  408, 412-418, 420-421, 423- 

427,  454,  467-469,  473,  480-481 
See  also  FM  3-07 
Standing  Rules  of  Engagement  214,  326,  335 

See  also  rules  of  engagement 
State  Department 

See  Department  of  State  and  Secretary  of  State 
Supreme  Court  44,  90-91,  184,  198,  224-225,  278,  282,  304,  330,  336,  343,  346,  350,  362-363, 

376-378,  400,  409,  462,  526-528,  533,  550,  552 
Syria  127,138,519,521,549 


564 


Index 


Tadic  case  48-49,  56,  185,  187-190,  212,  214,  216-217,  330-331,  367,  400,  408-409,  428- 
429 

Taft,  William  H.  IV  169,  172-173,  176,  178-179,  215,  239,  304,  354 

Taliban  xxiii-xxiv,  xxvi,  6-9,  11-12,  14-19,  25,  28-31,  33-39,  42,  50-53,  61-63,  65-66,  68-72, 
74,  79-80,  82-88,  90,  92,  95-106,  109,  113-121,  123-125,  130,  132,  134-136,  139,  141- 
146,  149,  152,  157-159,  161,  166-179,  182-183,  190-191,  193-194, 196,  210,  215,  220- 
225,  227,  229,  231,  236-240,  245,  249-251,  253-261,  270-275,  277-299,  301,  303-305, 
308-309,  313,  315-317,  322,  324,  330,  344-349,  351,  354,  357-364,  366-368,  388,  392- 
393,  398-402, 404, 409,  432-433, 443, 451-452,  460,  486,  525-528,  534-535,  537 

Tanzania  82,  123,  142-143,  166,  257 

Taraki,  Nur  Mohammed  61,  69,  81 

targeted  killing  xxv,  181,  220,  227-229,  240-241,  335,  459,  463 

targeting  xxvi-xxvii,  31,  49,  114,  128,  131,  146-147,  191,  199,  203,  228-229,  241,  307-318, 
320-324,  326,  328-330,  332-334,  336-338,  355,  381,  389,  404, 410,  422,  515,  535 

territorial  limitations  526,  529,  538 

terrorism  xxiii-xxiv,  14,  16,  19,  36,  39,  43-46,  53-54,  64-65,  74,  87,  94, 102,  110,  114,  122, 
129,  133,  138,  144-145,  152,  158-160,  162,  165-166,  173,  175-176,  194-195,  197,  204, 
208,  211,  215,  220,  224,  226,  228,  230,  233,  236-237,  313,  330,  358,  364-365, 410,  415, 
426, 439,  524,  547-548 

terrorist  xxi,  xxiii-xxiv,  9,  12,  15-16,  22,  24,  29,  32,  35,  43-49,  53-54,  62-65,  68,  71-72,  83-85, 
90,  93-95,  99-100,  104,  115,  121,  124,  126,  136,  138-139,  142-145,  158,  160-161,  169, 
181,  190,  194-197,  202-206,  210-211,  215,  218,  220-221,  224-225,  228,  233,  236,  241, 
248-249,  269,  271,  280,  282,  285,  307-308,  315,  330,  351,  358,  375,  381,  420,  429,  526, 
528,551 

transnational  armed  conflict  xxv,  182,  184-185,  189-191,  206,  212 

transnational  terrorist  169, 194, 197,  205-206,  248-249,  285,  330 

treatment  standards  xxvi,  343,  345-347,  353 

Turkey  49,  110,  126, 138,  256,  290,  294,  435,  456-458,  462,  495,  501-502,  508,  516-517,  519- 
520,  522,  538-539 

Turku  Declaration  374,  380 

U 

UN  Assistance  Mission  in  Afghanistan  16-17,  31,  38,  89,  91, 137 
UN  Charter 

Article  2(4)  45,  117-118,  120,  123,  125,  136 

Article  42  394,427 

Article  51  xxiv,  45-46,  64,  72,  83,  85-86,  98-99,  104,  106,  123-127,  138,  141,  228-229,  318, 
322,334,393,419,492,500 

Chapter  VII  52,  66,  83,  121-122,  133,  345,  393-394,  396,  406,  410,  504,  506 
UN  Commission  on  Human  Rights  374,  382, 456,  460, 490,  516 

See  also  UN  Human  Rights  Council 
UN  General  Assembly  13-14, 16,  39,  47,  61-62,  126,  257,  331, 490,  492 


565 


Index 


UN  Human  Rights  Committee  434,  447-449,  456,  458,  461,  490-491,  493-494,  496,  500,  504, 

506-507,  514-521,  523,  529-530,  537 
UN  Human  Rights  Council  215,  462, 490,  512 
See  also  UN  Commission  on  Human  Rights 
UN  Security  Council  xxviii,  13-14,  16-17,  20,  31-33,  37-39,  45-46,  50-51,  55,  60,  62-67,  73, 
83,  85-87,  91-92,  94,  103,  118,  120-124,  126,  133-134,  137,  139,  142,  144-146,  150- 
152,  161,  170,  177,  185,  221,  242,  248,  257,  294,  332,  345,  365,  393-397,  403-405,  407- 
408,  410,  433,  438-439,  458,  466,  480,  486,  488,  490,  492,  504-507,  522-523,  527,  536, 
539,  549,  552 
UN  Security  Council  Resolutions 
Res.  678  86,103,517 
Res.  1214  62-63,74,  170,294 
Res.  1333  63,  74,  152,  294-295 

Res.  1368  15,  39,  46,  55,  63,  74,  83,  85,  103,  137,  151,  257,  295 
Res.  1373  16,  39,  45-46,  55,  64,  74,  83,  85,  103,  137,  151 
Res.  1378  64,74,87,  104 
Res.  1383  62,65,74 
Res.  1386  37,  51,  57,  65,  74,  87,  92,  105,  121,  137,  144,  152-153,  221,  237,  332,  353,  365, 

369,  407,  505,  520 
Res.  1510  38,  137,  146,  152,  332,  407 
Res.  1608  105 
Res.  1806  91,480 
unified  armed  conflict  190,210 
uniform  6,  132,  147,  207,  223-225,  249,  258,  264,  274,  276-277,  280-281,  283,  297,  302-303, 

305,313,352,361,380 
unilateral  use  of  force  65,  129-130 

United  Arab  Emirates  61,  256-258,  274-275,  293-294,  297 

United  Kingdom  9,  21-23,  44,  65,  73,  90,  130,  141-145,  151,  162,  165,  200,  228-229,  270,  287, 
294,  336,  387-389,  391-392,  397-399,  402-407,  410,  436-437,  457,  461-462,  466,  491, 
494,  512,  517-518,  520,  524,  545,  551-552 
unlawful  combatants  53,  149,  159,  224,  226,  231-232,  265,  278,  345-346,  374 
unlawful  confinement  371-374,  378-380, 444 
unmanned  aerial  vehicles  227,  229,  240,  319,  321,  324 
unprivileged  belligerent  176,  224,  231,  270,  298 
unprivileged  combatant  266,  298,  532 
US  Central  Command  315-317,  321,  332-333,  335,  338 

use  offeree  xix,  6,  12,  15,46,50,65,70,83,86,92,98-99,  117,  119,  123,  127-130,  139,  143, 
147,  200,  202,  204,  206,  217,  297,  307,  309,  326,  334-335,  357,  389,  392,  394-396,  398, 
401,  405-406,  419-420,  422,  429,  439-440,  451,  476,  496,  525-526 
USS  Cole  123,  142,  227 
Uzbekistan  1 1,  84,  104,  220,  256,  294,  308 

V 

Vienna  Convention  on  the  Law  of  Treaties  168,  178,  336,  516 

Vietnam  19,  24-27,  41,  54,  98,  168,  221,  240,  243,  291,  304,  354,  547,  550-551 

566 


Index 


W 

Wall  Advisory  Opinion  xxiv,  46,  50,  56,  99,  105-106,  125,  138,  288-290,  367,  376,  382-383, 
419,  428-429,  456,  462,  492,  500,  513,  515-516,  519,  521,  530-531,  537-538 

war  crimes  xxv,  148,  185,  233,  362-364,  372 

War  Crimes  Act  167-169,172,175 

War  on  Terror  xxiii,xxv,  12,33,40,43-44,55,57,  136,  138,  157,  161,  165-166,  173,211-212, 
226,  233,  238,  241,  287,  302,  330,  378,  431,  433,  456,  462,  524 
See  also  Global  War  on  Terror 

Waziristan  111,117,289 


Yoo,  John  165,  167,  169,  172-173,  177-179,  215,  239,  304 
Yoo/Delahunty  memorandum  169,  172-173,  178-179 


Zahir  Shah,  Mohammad  60,  81,  88,  104,  253 
Zardari,  Asif  Ali  79,  119,  136 


567 


ISBN  978-1-884733-64-2 


9  781884»733642 


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